September 26, 2019- State of New Mexico v. Harrison Harvey, No. A-1-CA-37764

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	NO. A-1-CA-37764	4
HARRISON HARVEY,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	7
John A. Dean, Jr., District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
Victor E. Sanchez, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	The memorandum opinion filed in this case on July 29, 2019, is hereby	18
withdrawn, and this opinion is substituted in its place.	19
{2} 	Defendant appeals the sufficiency of the evidence to support his jury conviction	20
for driving while under the influence of intoxicating liquor (DWI). See NMSA 1978,	21
Court of Appeals of New Mexico
Filed 9/26/2019 9:20 AM

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§ 66-8-102(C)(1) (2016) (“It is unlawful for . . . a person to drive a vehicle in this state	1
if the person has an alcohol concentration of eight one hundredths or more in the	2
person’s blood or breath . . . and the alcohol concentration results from alcohol	3
consumed before or while driving the vehicle[.]”). Our calendar notice proposed to	4
affirm. Defendant filed a memorandum in opposition and motion to amend the	5
docketing statement. Not persuaded by Defendant’s arguments, we deny the motion	6
to amend as nonviable, and affirm Defendant’s conviction.	7
{3} 	Initially, we address Defendant’s motion to amend the docketing statement to	8
add the issue that the admission of the breath alcohol test (BAT) results was	9
fundamental error. [MIO 10] In cases assigned to the summary calendar, this Court	10
will grant a motion to amend the docketing statement to include additional issues if	11
the motion (1) is timely, (2) states all facts material to a consideration of the new	12
issues sought to be raised, (3) explains how the issues were properly preserved or why	13
they may be raised for the first time on appeal, (4) demonstrates just cause by	14
explaining why the issues were not originally raised in the docketing statement, and	15
(5) complies in other respects with the appellate rules. See State v. Rael, 1983-NMCA-	16
081, ¶ 15, 100 N.M. 193, 668 P.2d 309. This Court will deny motions to amend that	17
raise issues that are not viable, even if they allege fundamental or jurisdictional error.	18
See State v. Moore, 1989-NMCA-073, ¶ 44, 109 N.M. 119, 782 P.2d 91, superceded	19

3
by rule on other grounds as recognized by State v. Salgado, 1991-NMCA-044, ¶ 12,	1
112 N.M. 537, 817 P.2d 730.	2
{4} 	Defendant’s argument does not persuade us that this issue is viable. See Rael,	3
1983-NMCA-081, ¶ 15; see also Moore, 1989-NMCA-073, ¶ 44. Defendant argues	4
that admission of the BAT results renders his conviction fundamentally unfair because	5
the officer did not know how the intoxilyzer worked internally, and as such, could not	6
know if it was working properly, thereby discrediting his testimony that it was	7
working as it should. [MIO 12] However, the officer testified that the intoxilyzer was	8
certified, he was certified to operate it, the intoxilyzer ran the calibration check, and	9
it operated as it should. [MIO PDF 8] Therefore, the BAT test result was validated.	10
See State v. Ruiz, 1995-NMCA-098, ¶ 25, 120 N.M. 534, 903 P.2d 845 (concluding	11
that once the officer “testified that he was very familiar with the [intoxilyzer] and that	12
it appeared to be working properly on the evening in question, the test results were	13
validated”), abrogated on other grounds by State v. Martinez, 2007-NMSC-025, ¶ 17,	14
141 N.M. 713, 160 P.3d 894. Not having introduced any evidence to contradict the	15
inference of reliability, Defendant’s argument fails. See State v. Jacobs, 1985-NMCA-	16
054, ¶ 24, 102 N.M. 801, 701 P.2d 400 (stating that argument of counsel is not	17
evidence). Consequently, Defendant’s motion to amend the docketing statement is	18
denied.	19

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{5} 	As to the merits of the issue raised in the docketing statement, based on the	1
evidence presented therein, we proposed to conclude that there was sufficient	2
evidence to support Defendant’s conviction for DWI. In response, Defendant recites	3
the instructions given to the jury for DWI, including an instruction for general	4
criminal intent. [MIO 9-10; RP 104] See UJI 14-141 NMRA (defining general	5
criminal intent). Defendant acknowledges that generally DWI is a strict liability crime,	6
but argues that in light of the jury instructions, there was insufficient evidence to	7
support the added element that he acted intentionally when he committed the crime.	8
[MIO 10-11] See State v. Harrison, 1992-NMCA-139, ¶ 23, 115 N.M. 73, 846 P.2d	9
1082 (holding “that the offense of DWI is a strict liability crime”). However,	10
Defendant’s argument is based on the mistaken premise that the added element is an	11
essential element of DWI. See State v. Carpenter, 2016-NMCA-058, ¶ 16, 374 P.3d	12
744 (rejecting the argument that the statutory element added to the jury instruction for	13
involuntary manslaughter was an essential element under the statute).	14
{6} 	Defendant does not dispute the evidence relied upon in the calendar notice for	15
the conclusion that there was sufficient evidence for the elements of DWI. To the	16
extent that Defendant asserts there was no direct evidence that Defendant consumed	17
alcohol, or that the officer testified he did not know how the intoxilyzer worked	18
internally [MIO 11], those assertions go to the weight of the evidence, and “[t]he	19
reviewing court does not weigh the evidence or substitute its judgment for that of the	20

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fact finder as long as there is sufficient evidence to support the verdict.” State v. Mora,	1
1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789; see State v. Rojo, 1999-NMSC-	2
001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (stating that to the extent there was evidence	3
that could be construed as contrary, we disregard all evidence and inferences that	4
support a different result).	5
{7} 	For these reasons, and those stated in the calendar notice, we affirm.	6
{8} 	IT IS SO ORDERED.	7
__________________________________	8
JULIE J. VARGAS, Judge	9
WE CONCUR:	10
_________________________________	11
JENNIFER L. ATTREP, Judge	12
_________________________________	13
ZACHARY A. IVES, Judge	14