State v. A Primero

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 28,329 5 ARNULFO PRIMERO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Mike Murphy, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 Jacqueline R. Medina, Assistant Attorney General 12 Albuquerque, NM 13 for Appellee 14 Hugh W. Dangler, Chief Public Defender 15 Kathleen T. Baldridge, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant. 18 MEMORANDUM OPINION 19 FRY, Chief Judge. 20 Defendant appeals from his conviction for driving under the influence, in 21 violation of NMSA 1978, Section 66-8-102(C) (2008). This Court originally issued 22 a calendar notice proposing to affirm. Defendant filed a memorandum in opposition, 1 contending, based on the information contained in the docketing statement, that an 2 hour-and-a-half delay existed between the time he was stopped and the time he was 3 administered his breath test [Defendant’s MIO 2-3], and contending that he was not 4 read his rights pursuant to the New Mexico Implied Consent Act [Defendant’s MIO 5 9-10]. Based on this information, this Court issued a second calendar notice 6 proposing to reverse. The State then filed a memorandum in opposition indicating, 7 based on viewing the video of the stop, that there was only a half-hour delay between 8 the time Defendant was stopped [State’s MIO 9]and when he was administered his 9 breath test, and that Defendant was informed of his rights under the New Mexico 10 Implied Consent Act [State’s MIO 8]. As a result, this Court issued a third calendar 11 notice proposing summary affirmance. Defendant has filed a memorandum in 12 response, informing the Court that he is not submitting any argument in response to 13 our third calendar notice and is, instead, relying on the facts and arguments contained 14 in his original memorandum. “A party opposing summary disposition is required to 15 come forward and specifically point out errors in fact and/or law.” State v. Ibarra, [16] 116 N.M. 486, 489 , 864 P.2d 302, 305 (Ct. App. 1993); State v. Sisneros, 98 N.M. 17 201, 202-03 , 647 P.2d 403, 404-05 (1982) (“The opposing party to summary 18 disposition must come forward and specifically point out errors in fact and in law.”). [2] 1 Because Defendant has failed to point out any factual or legal errors in this Court’s 2 third calendar notice, we rely on the reasoning contained in our first and third calendar 3 notices and hereby affirm. 4 For the reasons stated herein and in this Court’s first and third calendar notices, 5 we affirm Defendant’s conviction. 6 IT IS SO ORDERED. [7] 8 CYNTHIA A. FRY, Chief Judge 9 WE CONCUR: [10] 11 MICHAEL D. BUSTAMANTE, Judge [12] 13 LINDA M. VANZI, Judge