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State v. Rivera9/9/1997
PICKARD, Judge.
{1} Defendant appeals his conviction for aggravated driving while intoxicated contrary to NMSA 1978, Sections 66-8-102(A) & (D)(1) (Repl. Pamp. 1994). He raises two issues. First, he contends that the evidence was insufficient to sustain the conviction because (a) there was insufficient evidence that he was driving and (b) there was insufficient evidence of the level of intoxication required to aggravate the offense. Second, he contends that a new trial must be ordered because extraneous prejudicial information in the form of the televised O.J. Simpson verdict reached the jury during its deliberations. We affirm.
SUFFICIENCY OF THE EVIDENCE
{2} Defendant was found either unconscious or asleep at the wheel of his car in the front yard of his house; the car's engine was racing. An officer woke Defendant, but did not attempt to have Defendant perform field sobriety tests because Defendant could not even stand up by himself. Defendant's breath alcohol tests were incomplete because he did not provide sufficient samples. Nonetheless, they indicated readings of .24 and .27. There was testimony that the readings would have been higher had the samples been sufficient.
{3} Defendant contends that there was insufficient evidence of driving because his wife testified that he liked to sit in the car and listen to the radio. However, such testimony does not negate the required element of driving, which is defined as being in actual physical control of the vehicle. See State v. Tafoya, 1997 NMCA 83, 36 N.M. St. B. Bull 38, N.M. , , P.2d , (Ct. App. 1997) [No. 18,306, slip op. at 2, filed June 18, 1997]; . The evidence in this case was comparable to that in Harrison, and we therefore determine that Harrison controls.
{4} Defendant also contends that there was insufficient evidence of intoxication because (1) there were no field sobriety tests and (2) the breath test results were invalid because (a) there was an insufficient sample and (b) Defendant was not under continuous observation for the twenty minutes required by state regulations. During part of the twenty-minute period, Defendant was in the back seat of the officer's vehicle being transported to the detention center. The officer did not continuously observe Defendant because the officer was driving.
{5} We review the evidence in the light most favorable to the State and indulge in all permissible inferences to support the judgment below. See . We cannot reweigh the evidence or substitute our judgment for that of the jury. See id. When the evidence is viewed in the proper manner, it is apparent that Defendant's contentions go to the weight of the evidence. The officer explained why no field sobriety tests were given: Defendant was too incapacitated to take them. There was testimony that the insufficient sample did not make the test invalid; it more likely made the sample read lower than Defendant's alcohol level actually was. There was also testimony that sitting in a car with a defendant could satisfy the twenty-minute period because the purpose of the observation period is to insure that a defendant does nothing to compromise the test. This purpose was satisfied. We therefore hold that there was sufficient evidence to sustain the conviction.
EXTRANEOUS PREJUDICIAL INFORMATION
{6} The jury began deliberating shortly before 4:00 p.m. on October 2, 1995. At 5:00, the jurors went home for the evening. The jurors returned to deliberate the next day and at 1:10 p.m. returned a verdict. At approximately 11:00 a.m. on the second day of deliberations, during a break in the deliberations, many of the jurors watched the return of the verdict in the O.J. Sim
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