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State v. Notah-Hunter4/1/2005
{1} Defendant appeals from the district court's order, upon appeal from magistrate court, determining that Defendant was guilty of the offense of aggravated driving while under the influence of intoxicating liquor and affirming the magistrate court judgment. Defendant raises three issues on appeal: (1) whether the district court erred in finding that reasonable suspicion justified the officer in stopping Defendant's vehicle, (2) whether the district court erred in admitting the breath alcohol test results, and (3) whether the district court erred in finding that the breath test taken nearly ninety minutes after the stop justified the aggravated DWI finding. We affirm in part and reverse and remand for entry of judgment convicting Defendant of DWI.
I. BACKGROUND
{2} Officer Whitman of the McKinley County Sheriff's Department stopped Defendant's vehicle in Thoreau, New Mexico, on the night of February 13, 2001. After administering two field sobriety tests, which Defendant was unable to perform, the Officer placed Defendant under arrest and took her to the McKinley County Detention Center for a breath test. Defendant's first sample indicated 0.17, and the last sample showed a concentration of 0.16. Defendant was charged and later convicted of per se aggravated DWI under NMSA 1978, § 66-8-102(D)(1) (1999). Additional pertinent facts are set out in our discussion of the issues.
II. DISCUSSION
A. Jurisdiction
{3} In its answer brief, the State asserts that this Court does not have jurisdiction to hear Defendant's appeal. Citing State v. Brinkley, 78 N.M. 39, 40, 428 P.2d 13, 14 (1967) (holding that where a notice of appeal is filed one day late, the Supreme Court is without jurisdiction to hear the appellant's appeal), the State first argues that Defendant's notice of appeal was filed one day late and that she has therefore "failed to perfect" her appeal. The New Mexico Supreme Court later modified this rule to "make it clear that timely filing of a notice of appeal is not an inflexible jurisdictional requirement in all cases." Aragon v. Westside Jeep/Eagle, 117 N.M. 720, 722, 876 P.2d 235, 237 (1994). In State v. Duran, 105 N.M. 231, 233, 731 P.2d 374, 376 (Ct. App. 1986), this Court held that in criminal cases, "failure to file a timely notice of appeal . . . constitutes ineffective assistance of counsel per se" and that such an appeal would be considered timely. We therefore consider Defendant's appeal to be timely, despite the late filling.
{4} Relying on State v. Ball, the State also contends that this Court lacks jurisdiction because Defendant entered a guilty plea in the magistrate court. 104 N.M. 176, 185, 718 P.2d 686, 695 (1986) (affirming a district court's dismissal of de novo appeals from the metropolitan court on the basis that no right to appeal exists under the New Mexico Constitution when a defendant enters a guilty plea). Defendant has demonstrated that the magistrate court filed the judgment and sentence on the wrong form, thus giving the impression that Defendant pled guilty. The magistrate court acknowledged the error and filed an amended judgment and sentence reflecting that the guilty verdict was the result of a bench trial. Defendant properly moved to supplement the record on appeal to clarify the judgment, and that motion was granted. The record no longer supports the State's argument.
B. Reasonable Suspicion to Stop Defendant
{5} Asserting that Officer Whitman lacked reasonable suspicion when he stopped her vehicle, Defendant appeals the district court's denial of her motion to suppress evidence. The district court's decision regarding a motion to suppress involves mixed questions
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