August 8, 2017- State of New Mexico v. Antonio Alvarez, No. 34,855

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: August 8, 2017

NO. 34,855

STATE OF NEW MEXICO,
Plaintiff-Appellee,

V.

ANTONIO ALVAREZ,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA 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
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

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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

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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.

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{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

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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 instructions become the law of
the case against which the sufficiency of the evidence is to be measured.” (internal
quotation marks and citation omitted)), cert. granted, 2017-NMCERT-___ (No.
36269, Feb. 14, 2017).

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DISCUSSION
Aggravated DWI
Past Driving
{9} 	We turn first to Defendant’s argument that insufficient evidence exists to
uphold Defendant’s conviction for aggravated DWI on the theory that Defendant
actually drove the vehicle. Because Defendant does not challenge the element of
intoxication, we limit our discussion to the contested question of whether Defendant
operated the vehicle.
{10} 	“The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilty beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and
citation omitted). The reviewing court “view[s] the evidence in the light most
favorable to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts 	in 	the 	evidence 	in 	favor 	of 	the 	verdict.” 	State 	v. 	Cunningham,
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and
inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19,
126 N.M. 438, 971 P.2d 829.
{11} 	In support of his contention that there was insufficient evidence presented of

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past driving, Defendant argues that his statement to Sergeant Vitale that he was
“coming from Albuquerque” and “going to El Paso” was not an admission that he was
driving, but merely a statement of where he was coming from and where he was
headed. Defendant further argues that there were no witnesses who personally
observed Defendant driving, it was unclear how long the vehicle had been parked on
the road, and it was also not known whether another person had been driving the
vehicle before police approached.
{12} 	The State contends that sufficient circumstantial evidence was presented to
support an inference that Defendant had actually driven the vehicle. We agree. See,
e.g., State v. Mailman, 2010-NMSC-036, ¶¶ 23, 27-28, 148 N.M. 702, 242 P.3d 269
(observing that direct evidence is not required to support a conviction for past DWI;
rather, 	circumstantial 	evidence 	may 	be 	relied 	upon 	to 	establish 	that 	the
accused actually drove while intoxicated).
{13} 	In the present case, Sergeant Vitale reached Defendant’s vehicle about five
minutes after receiving a dispatch call alerting him that there was a pickup truck stuck
in the median that was trying to back into traffic. Sergeant Vitale confirmed that the
truck was actually stuck in the median. Sergeant Vitale observed that the vehicle was
stuck in the median, the vehicle appeared to be on, and the hazard lights were on.
Defendant was alone, and Sergeant Vitale witnessed Defendant exit from the driver’s

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seat. No evidence was presented that there was any other occupant in the vehicle.
Although Defendant argues that his statements to Sergeant Vitale that he was coming
from Albuquerque should not be interpreted as an admission to driving, we disagree.
Sergeant Vitale asked Defendant where he was coming from in two Defendant
phrased ways: “Where were you coming from; where were you driving from?”
Defendant replied that he was coming from Albuquerque, and he never suggested that
Sergeant Vitale’s assumption that he was driving was incorrect.
{14} 	We 	conclude, 	based 	on 	our 	case 	law, 	that 	this 	constitutes 	sufficient
circumstantial evidence to uphold a conviction based on past driving. See Mailman,
2010-NMSC-036, ¶¶ 2-4, 23-24 (observing that there was sufficient circumstantial
evidence to support a DWI conviction under a theory of past driving, based on the
defendant’s presence behind the wheel of a vehicle parked by itself in a dark area of
a convenience store parking lot, along with admissions to having driven to the
convenience store and having consumed alcohol while driving); cf. State v. Owelicio,
2011-NMCA-091, ¶ 33, 150 N.M. 528, 263 P.3d 305 (concluding that sufficient
evidence was presented to support a finding that the defendant operated a vehicle as
part of her DWI conviction based on the defendant’s admission that she was driving,
the fact that the defendant and a third party who denied driving were the only persons
at the scene, and a videotape showing the defendant approaching the passenger side

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of the vehicle).
{15} 	We acknowledge Defendant’s efforts to analogize the facts of this case to those
in State v. Cotton, 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925. In Cotton, this
Court held that there was insufficient evidence to support a conviction where there
was nothing from which the jury could infer that the defendant had driven after he
had consumed alcohol and after his ability to drive had become impaired. Id.
¶¶ 14-15. In that case, police responded to a call about a possible domestic incident
in a van parked on the side of the road; the van was not running; the keys were not in
the ignition; and the defendant admitted to drinking one hour prior to contact with
police. Id. ¶¶ 4-6. The determinative factor in Cotton, however, was the lack of
evidence presented as to timing of the driving. This Court held that although it would
have been reasonable for the jury to conclude that the defendant drove to the place
where he was arrested, there was insufficient evidence for the jury to conclude that the
defendant had been impaired by alcohol prior to doing so. Id. ¶ 14-15.
{16} 	The facts of the present case are distinguishable from Cotton. Notably, the
dispatch call reported that someone observed the truck stuck in the median trying to
pull back into traffic, and only five minutes later, Sergeant Vitale arrived at the scene.
The jury could reasonably have inferred that a five-minute lapse was not enough time
for Defendant to have consumed enough alcohol to result in impairment. Additionally,

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unlike the vehicle in Cotton, Defendant’s truck was stuck in the median, with the
hazard lights on, suggesting that he did not intentionally park the vehicle there; taken
together with the fact that a dispatch call was made about the truck, the jury could
have reasonably inferred that Defendant recently drove the truck into the median. See
State v. Garcia, 2005-NMSC-017, ¶ 20, 138 N.M. 1, 116 P.3d 72 (permitting a jury
to draw reasonable inferences from the evidence to reach a verdict). We therefore
conclude that the State presented sufficient evidence to support a conviction for DWI
based on past driving.
Actual Physical Control
{17} 	Because we have concluded that there was sufficient evidence presented to
uphold Defendant’s DWI conviction based on past driving, we need not consider
whether the State presented sufficient evidence to uphold his conviction under the
theory of actual physical control. See State v. Olguin, 1995-NMSC-077, ¶ 2, 120 N.M.
740, 906 P.2d 731 (holding that due process does not require a general verdict of guilt
to be set aside if one of the two alternative bases for conviction is supported by
sufficient evidence and the other basis is not legally inadequate); see also Mailman,
2010-NMSC-036, ¶ 28 (“Actual physical control is not necessary to prove DWI unless
there are no witnesses to the vehicle’s motion and insufficient circumstantial evidence
to infer that the accused actually drove while intoxicated. Such evidence may include

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the accused’s own admissions, the location of the vehicle next to the highway, or any
other similar evidence that tends to prove that the accused drove while intoxicated.”).
Nevertheless, we proceed to address Defendant’s arguments regarding the sufficiency
of the evidence under the theory of actual physical control.
{18} 	Under a theory of actual physical control, the State must prove “(1) the
defendant was actually, not just potentially, exercising control over the vehicle, and
(2) the defendant had the general intent to drive so as to pose a real danger to himself,
herself, or the public.” State v. Sims, 2010-NMSC-027, ¶ 4, 148 N.M. 330, 236 P.3d
642. Sims addressed a situation wherein a defendant was found passed out or asleep
behind the wheel of his car parked in a commercial parking lot. Id. ¶ 1. Our Supreme
Court explained in Sims that “we do not believe that the Legislature intended to forbid
intoxicated individuals from merely entering their vehicles as passive occupants or
using their vehicles for temporary shelter.” Id. ¶ 3. Ultimately, our Supreme Court
concluded that “the [s]tate failed to prove that [the d]efendant used the vehicle other
than as a passive occupant[, and i]t was pure speculation whether [the d]efendant
would rouse himself and drive the vehicle.” Id. ¶ 4.
{19} 	There are fourteen factors for the jury to consider when determining whether
a defendant is in actual physical control of a vehicle: whether the vehicle was running;
whether the ignition was on; where the ignition key was located; where and in what

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position the driver was found in the vehicle; whether the person was awake or asleep;
whether the vehicle’s headlights were on; where the vehicle was stopped; whether the
driver had voluntarily pulled off the road; time of day; weather conditions; whether
the heater or air conditioner was on; whether the windows were up or down; whether
the vehicle was operable; and any explanation of the circumstances shown by the
evidence. UJI 14-4512 NMRA; see Sims, 2010-NMSC-027, ¶ 33; Mailman, 2010-
NMSC-036, ¶ 20.
{20} 	Applying these factors, we conclude that sufficient evidence was presented to
establish actual physical control under Sims and Mailman. Defendant was in the
driver’s seat of the truck, which was stuck in the median on the interstate with the
hazard lights on, suggesting that Defendant knew that the car should not have been
there, and that he drove into the median inadvertently. It was around 11:30 p.m., and
the weather was clear and warm. Neither officer who testified could recall specifically
whether the truck’s engine was running, but Sergeant Vitale testified that the vehicle
appeared to be “on,” indicating the ignition was turned on. Sergeant Vitale also
testified that the key was in the ignition. While Defendant argues that his disheveled
appearance suggests that he was asleep in the vehicle, the State argues that the fact
that he opened the driver’s door and exited as soon as Sergeant Vitale approached
suggests that Defendant was awake. We agree with the State that the jury could have

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inferred that Defendant’s rapid exit from the vehicle suggested that he was awake. See
Cunningham, 2000-NMSC-009, ¶ 26 (explaining that our standard of review
requires us to indulge all inferences in favor of the guilty verdict).
{21} 	Defendant argues that he could not have been in actual physical control of the
vehicle because his truck was stuck in the dirt. Although the evidence was that the
vehicle’s tires were stuck in the median, it was not apparent that the vehicle was
entirely inoperable, and it could reasonably be inferred that Defendant could have
moved the vehicle out of the median, either by himself or with assistance; he
expressed an intent to go somewhere, as he told Sergeant Vitale that he was “going
to El Paso.” This distinguishes the present case from Mailman, wherein the defendant
told the police officer who stopped him that his car had broken down and asked the
officer to arrange for a tow truck. 2010-NMSC-036, ¶ 5. The officer in Mailman
looked for but could not find the keys to the car, and was unable to start the car
without a key, leading him to conclude that the vehicle was inoperable. Id. Our
Supreme Court held that on its own, evidence that a defendant “was in a non-moving,
inoperable vehicle attempting to make a phone call[,]” that he told the officer that his
car broke down, and that he asked the officer to help him arrange a tow, was
insufficient as a matter of law to prove actual physical control. Id. ¶ 21. In so holding,
our Supreme Court explained that “[w]hile the operability of the vehicle may be

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highly 	relevant 	to 	[the] determination 	[of 	actual 	physical 	control], 	it 	is 	not
necessarilydispositive.” Id. ¶ 19. Unlike the situation in Mailman, there was no
evidence in this case to suggest that Defendant’s truck could not have been moved
from the median.
{22} 	In sum, considering the totality of the evidence, we conclude that Defendant
was more than a passive occupant of the truck, and that sufficient evidence was
presented to support the conviction under the theory of actual physical control. Having
concluded that there was sufficient evidence to establish that Defendant operated the
vehicle either under the theory of past driving or actual physical control, we affirm
Defendant’s conviction for aggravated DWI.
Reckless Driving
{23} 	Finally, we turn to Defendant’s contention that his reckless driving conviction
must be vacated. The State concedes this issue, acknowledging that “there was
admittedly no evidence of reckless driving beyond [Defendant’s] intoxication.” The
State further notes that “[w]hile the jury could reasonably infer that [Defendant] had
driven off the highway into the median, this in itself does not establish reckless
driving, because without witness testimony or an admission from [Defendant], the jury
could only speculate as to why he did so.”

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{24} 	While we are not bound to accept the State’s concession, see State v. Tapia,
2015-NMCA-048, ¶ 18, 347 P.3D 738 (stating appellate courts are not bound by the
state’s concessions), we agree that the reckless driving conviction should be vacated.
See State v. Sandoval, 1975-NMCA-096, ¶ 2, 88 N.M. 267, 539 P.2d 1029 (“The rule
in criminal cases in New Mexico is that evidence of intoxication is but a circumstance
to be considered by the jury in deciding the issue of reckless driving.”).
{25} 	Because we reverse Defendant’s conviction for reckless driving, we do not
address Defendant’s argument that his convictions for both aggravated DWI and
reckless driving violate double jeopardy. See State v. Trujillo, 2012-NMCA-112, ¶ 44,
289 P.3d 238 (“Because we reverse the kidnapping conviction, there is no need to
address [the d]efendant’s double jeopardy arguments regarding kidnapping.”).
CONCLUSION
{26} 	For the foregoing reasons, we affirm Defendant’s conviction for aggravated
DWI and reverse his conviction for reckless driving. We therefore remand to the
district court to vacate Defendant’s conviction for reckless driving and resentence
Defendant accordingly.
{27} 	IT IS SO ORDERED.
__________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

J. MILES HANISEE, Judge

STEPHEN G. FRENCH, Judge

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