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State v. Alvarez

Court of Appeals of New Mexico

August 8, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ANTONIO ALVAREZ, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Fernando R. Macias, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM for Appellant.

          OPINION

          MICHAEL E. VIGIL, Judge.

         {1} Defendant Antonio Alvarez appeals his convictions for aggravated DWI, reckless driving, and possession of an open container of alcohol in a motor vehicle. On appeal, he raises three issues, challenging only his DWI and reckless driving convictions. First, he argues that his DWI conviction is unsupported by the evidence under either the theory of past driving or actual physical control. Second, Defendant argues that his conviction for reckless driving is also unsupported by sufficient evidence. Third, he argues that if this Court finds that there is sufficient evidence to support his conviction for reckless driving, it nevertheless should be vacated because his convictions for both DWI and reckless driving violate double jeopardy. The State concedes that Defendant's conviction for reckless driving is unsupported by sufficient evidence and must be vacated. Accepting the State's concession, we affirm Defendant's conviction for aggravated DWI, reverse Defendant's conviction for reckless driving, and determine that it is unnecessary to address Defendant's double jeopardy arguments.

         BACKGROUND

         {2} On March 29, 2014, at around 11:30 p.m., Sergeant Thomas Vitale and Patrolman Cesar Duran of the New Mexico State Police both responded to a dispatch call about a pickup truck stuck in the median on Interstate 10 where the driver was trying to back into traffic. Sergeant Vitale arrived at the scene first, around 11:35 p.m. (time stamp on dash cam as Sergeant Vitale pulls in). The vehicle was not in the originally reported location, but was a couple of miles ahead. Sergeant Vitale observed that the vehicle was stuck in the median, the vehicle appeared to be "on, " and the hazard lights were on. In Sergeant Vitale's dash cam video, which was played for the jury, it appears that the truck's tires are stuck in the dirt. When Sergeant Vitale exited his patrol unit and began walking towards the vehicle, Defendant opened the driver's side door and exited from the driver's seat. Defendant was the only person in the vehicle. Sergeant Vitale testified that the keys to the vehicle were in the ignition. A check of the vehicle's license plate indicated that it belonged to Defendant.

         {3} Sergeant Vitale described Defendant's appearance as "disheveled and messy"; his shirt was untucked, his pants were unzipped, and he looked confused, as though he did not know where he was at that time. As he walked up to Defendant, Sergeant Vitale observed a strong odor of alcohol, which became stronger as Sergeant Vitale walked closer. The odor was "overwhelming" when he stood next to Defendant.

         {4} Sergeant Vitale initiated a conversation with Defendant, and testified at trial that it was "kind of hard to understand" Defendant. The following dialogue can be heard in Sergeant Vitale's dash cam video. Initially, Sergeant Vitale asked Defendant how he was doing, and Defendant replied, "Alright." Sergeant Vitale asked Defendant if he had anything to drink, noting that he could smell alcohol on Defendant's breath. Although it is difficult to hear the audio, it appears that Defendant responded, "Yeah." Sergeant Vitale requested that Defendant walk over to the shoulder of the road, again inquiring if Defendant was okay. Defendant somewhat unsteadily walked to the shoulder with Sergeant Vitale.

         {5} At that point, Sergeant Vitale asked Defendant, "Where were you coming from; where were you driving from? Do you understand English?" Defendant replied, "A little. Coming from Albuquerque." Sergeant Vitale again asked, "Coming from Albuquerque?"; Defendant replied in the affirmative. Sergeant Vitale then inquired, "Where were you headed to?" Defendant answered, "Going to El Paso." Sergeant Vitale asked Defendant if he had anything to drink, and Defendant answered in the negative. Sergeant Vitale asked Defendant if he would be willing to take field sobriety tests, and although Sergeant Vitale testified that it was difficult for him to understand Defendant, and also difficult for Defendant to understand him, Defendant agreed to take the tests. Based on Defendant's performance on the field sobriety tests, Sergeant Vitale arrested him for DWI. A blood draw was performed, and Defendant's blood alcohol concentration was determined to be 0.25 grams of ethanol per one hundred milliliters of blood.

         {6} Patrolman Duran testified that he responded to the same dispatch call as Sergeant Vitale, and that Sergeant Vitale was already speaking with Defendant when he arrived at the scene a few minutes after Sergeant Vitale. Patrolman Duran asked Defendant in Spanish if he could understand or speak English; Defendant stated that he could understand English, and Patrolman Duran determined that translation to Spanish was not necessary. Patrolman Duran observed Defendant to have slurred speech, odor of alcohol, bloodshot eyes, and to be very unsteady on his feet. Patrolman Duran stood by for safety as Defendant was arrested, and he saw a 25-ounce open can of Budweiser on the passenger floor of the vehicle. Patrolman Duran could not recall if it was full or had spilled, and no fingerprints were taken from the can. He also did not remember if the vehicle's engine was running or if he took the keys from the ignition.

         {7} During the State's closing argument, the prosecutor asked the jury to find Defendant guilty of aggravated DWI on the theory of past driving, arguing specifically that the evidence showed that Defendant actually drove because he told Sergeant Vitale that he was coming from Albuquerque and going to El Paso, and his vehicle was stuck in the median on the interstate between those two locations. The prosecutor specifically argued that the State was not asking the jury to find that Defendant was guilty under the actual physical control theory, but only under the theory of past driving. Defendant's closing argument asked the jury to consider the actual physical control alternative.

         {8} Ultimately, the jury convicted Defendant by a general verdict of DWI, based on a jury instruction that defined the operation of a motor vehicle as one of two alternatives: either actually driving the motor vehicle (past driving) or being in actual physical control of the vehicle with intent to drive the vehicle. See UJI 14-4511 NMRA. Based on the jury instruction setting forth both alternatives, the jury could have relied on either past driving or actual physical control as the basis for its conviction, and the jury was not required to specify which theory it relied upon in reaching its verdict. On appeal, Defendant raises no argument to suggest that one of these bases should not be considered due to the arguments made at trial. See State v. Fox, 2017-NMCA-029, ¶ 8, 390 P.3d 230 ("The jury ...


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