March 20, 2025- State of New Mexico v. Everett Multine, No. A-1-CA-41037

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: March 20, 2025	3
No. A-1-CA-41037	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
EVERETT MULTINE,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	10
Daylene A. Marsh, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Walter Hart, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Melanie C. McNett, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 3/20/2025 7:33 AM

OPINION	1
IVES, Judge.	2
{1} A jury found Defendant Everett Multine guilty of driving while under the	3
influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, Section	4
66-8-102(A) or (B) (2016). Defendant argues on appeal, as he did at trial, that the	5
district court violated Article VII, Section 3 of the New Mexico Constitution by	6
seating a juror without providing her with a Navajo language interpreter. See State	7
v. Singleton, 2001-NMCA-054, ¶ 9, 130 N.M. 583, 28 P.3d 1124 (holding that	8
defendants have standing to protect the rights of an excluded juror under Article VII,	9
Section 3). The State argues that the district court’s denial of an interpreter was based	10
on an unstated factual finding that the juror’s expressed need for an interpreter was	11
not credible—a finding that the State argues is entitled to deference on appeal. We	12
recognize that the determination about whether a juror needs an interpreter requires	13
fact-finding by the trial court about whether a juror can meaningfully participate in	14
the proceedings without an interpreter—findings that are owed deference on appeal	15
under the ordinary substantial evidence standard of review. However, the record	16
does not establish that any such findings were made by the district court in this case.	17
When a question about the need for an interpreter arises, and a trial court requires a	18
person to serve on a jury but refuses to provide an interpreter, the court must give a	19
reasoned explanation on the record that is legally adequate to justify the refusal.	20

2
Because the district court did not provide a reasoned explanation to support a	1
conclusion that the juror in this case could meaningfully participate without an	2
interpreter, we hold that the district court erred, and Defendant’s conviction	3
therefore cannot stand.	4
{2} However, we are unpersuaded by Defendant’s other arguments. We disagree	5
with Defendant that the district court erred by denying his motion to suppress	6
evidence, that the evidence presented at trial is insufficient to support his conviction,	7
and that the district court erred by denying his motion to sanction the State by	8
excluding its expert testimony.	9
{3} We therefore reverse Defendant’s conviction and remand for a new trial.	10
BACKGROUND	11
{4} This case arises out of a traffic stop that took place in Farmington, New	12
Mexico, after Deputy Anthony Sanchez “observed traffic violations” by Defendant.	13
Specifically, he “observed [Defendant’s] vehicle swerving within its lane and	14
swerving out of its lane,” as well as “going over the fog lines . . . that are on the side	15
of each lane.” He “then . . . observed [Defendant] go out of his lane a little bit . . .	16
farther down, as well as almost strike the curb.” The deputy activated his lights, and	17
Defendant pulled over. When Deputy Sanchez approached the driver’s side of	18
Defendant’s car, he “observed indicators of impairment, . . . includ[ing] the odor of	19
an alcoholic beverage emitting from the vehicle, slurred speech from [Defendant],	20

3
as well as bloodshot, watery eyes.” The deputy asked Defendant whether he had	1
consumed alcohol, and Defendant replied that he had not. While Defendant was	2
exiting the vehicle, Deputy Sanchez observed that he was “unsteady on his feet and	3
he . . . walk[ed] with a staggering motion.” After Defendant initially refused to	4
perform field sobriety tests, Deputy Sanchez placed Defendant into custody.	5
However, as the deputy was escorting Defendant to the squad car, Defendant “stated	6
that he could pass the tests and he was not drunk.” The deputy observed further	7
indicators of impairment during the field sobriety tests and based on Defendant’s	8
driving, “his demeanor on scene, as well as the performance of . . . [the] standard	9
field sobriety tests,” he arrested Defendant.	10
{5} The deputy then conducted an inventory search of Defendant’s car, during	11
which he found two unopened alcoholic beverage “shooter containers.” Deputy	12
Sanchez read Defendant his rights and again asked whether he had been drinking, to	13
which Defendant responded that he “had two of [the shooters] . . . hours ago.”	14
Defendant was transported to the San Juan County Adult Detention Center, where	15
he refused to provide a breath sample. The deputy drafted a search warrant to obtain	16
Defendant’s blood for testing, a judge approved the search warrant, and Defendant’s	17
blood sample was taken. Defendant was ultimately charged with multiple crimes,	18
including aggravated DWI for failure to submit to chemical testing, contrary to	19

4
Section 66-8-102(D)(3), and failure to maintain his traffic lane, contrary to NMSA	1
1978, Section 66-7-317 (1978).	2
{6} Before trial, Defendant filed a motion to suppress evidence obtained from the	3
traffic stop, arguing that he was seized without reasonable suspicion in violation of	4
his rights under the Fourth Amendment of the United States Constitution and Article	5
II, Section 10 of the New Mexico Constitution. The district court denied the motion	6
after an evidentiary hearing, the relevant details of which are described below in our	7
discussion of Defendant’s claim of error regarding the motion to suppress.	8
{7} Defendant’s case originally went to trial on June 17, 2021, but a mistrial was	9
declared when a juror fell asleep during the proceedings. The case went to trial again	10
in October 2022. Before his second trial, Defendant filed a motion to exclude the	11
State’s expert witness, arguing that the State failed to timely file a witness list. After	12
hearing argument the morning of trial, the district court denied the motion and	13
proceeded to jury selection.	14
{8} After voir dire and the selection of the jury panel, Juror 22 asked to speak with	15
the judge and the parties. The judge and the juror had the following interaction:	16
Judge: You have informed the bailiff that you wish to speak to	17
us?	18
Juror 22: Yes, I have a hard time sitting for a long time because of	19
my back and I start getting all jittery. So, and then my	20
second one is I can’t really understand what people are	21
talking about. And I have to really, really listen and	22

5
sometimes you have to tell me twice what they’re talking	1
about so I don’t know . . . I don’t know how to explain it.	2
Judge: If we were to give you the hearing devices would that—	3
Juror 22: I can hear good but it’s just I can’t concentrate. You know,	4
I have a hard time concentrating what people are talking	5
about. And I have to maybe explain to me maybe two or	6
three times sometimes what they’re talking about. I have	7
kind of a hard time understanding.	8
Judge: . . . Is there anything we could do to help you to	9
concentrate?	10
Juror 22: I don’t know, that’s why I’m bringing this up. I don’t	11
know. I don’t really understand some of the words, like the	12
hard words that’s talk about. I can’t understand all the	13
English.	14
Judge: So possibly if we were to provide you with a—and I’m	15
guessing here—would a Navajo interpreter—	16
Juror 22: Yes.	17
Judge: Would that help you?	18
Juror 22: Maybe in some places.	19
After talking to Juror 22, the judge heard argument from defense counsel and the	20
State. Defense counsel argued that the juror should be allowed to sit on the jury with	21
an interpreter, and the State argued that Juror 22 should be struck for cause, citing	22
her inability to sit still for long periods and her need to hear things multiple times.	23
The judge noted that the juror “did talk about the hard words,” and the judge said,	24
“Let’s take a recess, let me go down and see if we can get her an interpreter and how	25
long that would take.”	26

6
{9} The judge then questioned the jury clerk on the record. The jury clerk testified	1
that Juror 22 had originally requested a Navajo interpreter on her juror questionnaire.	2
The clerk then referenced a note from Juror 22’s juror profile from September 2022,	3
which read, Juror 22 “said she will not need an interpreter.” The judge acknowledged	4
this and commented that Juror 22 had gone “throughout the jury selection without	5
informing us that she did not understand what was going on and needed an	6
interpreter.” The State then argued that the juror could sit on the jury without an	7
interpreter based on the information supplied by the jury clerk regarding Juror 22’s	8
actual need for an interpreter. Defense counsel contended that the jury clerk’s	9
testimony was not clear evidence of Juror 22’s need and that the court was required	10
to provide an interpreter. The judge responded:	11
Well we’re not going to be able to get an interpreter today. She did state	12
that she basically didn’t want to serve on the jury because she has the	13
medical issues that . . . causes her to get jittery, . . . that she can’t sit for	14
long periods of time, she doesn’t understand all the concepts, so I think	15
basically she was requesting to be removed.	16
The parties renewed their arguments, after which the court concluded that it would	17
not provide an interpreter, nor would it “discharge her from jury duty.” The case	18
proceeded to trial, and Defendant was convicted.	19

7
DISCUSSION	1
I. No Legally Adequate Justification Was Given for Denying the Juror’s	2
Request for an Interpreter	3
{10} Defendant argues that by seating Juror 22 without providing an interpreter for	4
her, the district court violated Article VII, Section 3 of the New Mexico Constitution,	5
which provides, in pertinent part, that “[t]he right of any citizen of the state to . . . sit	6
upon juries, shall never be restricted, abridged or impaired on account of . . .	7
language . . . or inability to speak, read or write the English or Spanish languages	8
except as may be otherwise provided in this constitution.” The State contends that	9
Juror 22 waived her right to an interpreter and that, in any event, her right was not	10
violated. We address waiver and the merits in turn.	11
{11} The State argues that Juror 22 waived the right to appeal the district court’s	12
decision to seat the juror without an interpreter because Juror 22 did not “timely,	13
adequately, and definitively . . . assert that right.” This argument is contrary to New	14
Mexico law, which does not impose any burden at all on jurors to assert their rights	15
under Article VII, Section 3—much less impose a burden of doing so at a particular	16
time and in a particular manner—and which instead allows the defendant, the state,	17
or the court itself to raise the potential need for an interpreter. Precedent establishes	18
that “both the state and the defendant in a criminal action can protect the rights of	19
prospective jurors to be free from discriminatory exclusion,” Singleton, 2001-	20
NMCA-054, ¶ 9, and our Supreme Court’s rule on the subject states that “[t]he need	21

8
for a court interpreter may be identified by the court or by a case participant,” Rule	1
5-122(B)(1) NMRA. Because prospective jurors may be “unable or unwilling to	2
express” their need for an interpreter, State v. Rico, 2002-NMSC-022, ¶ 10, 132	3
N.M. 570, 52 P.3d 942, New Mexico law imposes no requirement that a juror assert	4
their need for an interpreter. Instead, the need may be identified by the court or a	5
case participant. See Rule 5-122(B)(1); see also Rule 5-122(A)(1) (defining “case	6
participant” as “a party, witness, or other person required or permitted to participate	7
in a proceeding governed by the[] [R]ules” of Criminal Procedure). In this case, the	8
possible need for a Navajo interpreter was identified shortly after the jury was	9
empaneled, and defense counsel repeatedly argued before the district court that Juror	10
22 had the constitutional right to an interpreter. That sufficed; no waiver of the	11
constitutional right occurred.	12
{12} Turning to the parties’ arguments on the merits, in light of the constitutional	13
protection involved, we review the alleged violation of Article VII, Section 3 de	14
novo. See State v. Samora, 2013-NMSC-038, ¶ 6, 307 P.3d 328. In the context of	15
the constitutional right to an interpreter, the district court must provide an explicit	16
statement that is legally sufficient to justify its ruling; that is, “a reasoned	17
explanation on the record.” Rico, 2002-NMSC-022, ¶ 11 (emphasis added). As we	18
will explain, because we conclude that no reasoned explanation was given in this	19

9
case, we hold that the district court erred by requiring Juror 22 to participate in	1
Defendant’s trial without an interpreter.	2
{13} The foundation for our holding is the two-part test that New Mexico courts	3
use to determine whether a juror’s rights have been violated under Article VII,	4
Section 3. Under the first part of the test, when a trial court becomes “aware that a	5
member of a given venire has difficulty with either English or Spanish or both,” the	6
trial court must “determine whether the difficulty will prevent the juror from	7
following the proceedings.” Rico, 2002-NMSC-022, ¶ 16; see also id. ¶ 1	8
(recognizing that a juror needs an interpreter if they are “not otherwise able to	9
participate in court proceedings” due to language barriers); Rule 5-122(B)(1) (“The	10
need for a court interpreter exists whenever a case participant is unable to hear,	11
speak, or otherwise communicate in the English language to the extent reasonably	12
necessary to fully participate in the proceeding.”). To make this factual	13
determination, the trial court must make an inquiry sufficient to allow the court to	14
assess the extent of the juror’s language difficulty and to determine if the juror is	15
able to participate fully in court proceedings without the assistance of an interpreter.	16
If there is no need for an interpreter, the inquiry ends without reaching the second	17
part of the test.	18
{14} However, if the trial court finds that a juror needs an interpreter, the second	19
part of the test requires the court to determine whether an interpreter can be secured	20

10
through “reasonable efforts” by the court, and if the answer is yes, an interpreter	1
must be provided. See Rico, 2002-NMSC-022, ¶¶ 11-12, 16. What amounts to	2
reasonable efforts “depend[s] on the circumstances in which the problem arises,”	3
and on appeal, courts consider “the steps actually taken to protect the juror’s rights,	4
the rarity of the juror’s native language and the difficulty that rarity has created in	5
finding an interpreter, [and] the stage of the jury selection process at which it was	6
discovered that an interpreter will be required.” Id. ¶ 12. If an interpreter is not	7
available through reasonable efforts, and the record establishes that providing an	8
interpreter would instead place a “substantial burden” on the court, the constitution	9
does not require that an interpreter be provided to accommodate the juror; only at	10
this point is the court allowed to excuse the juror due to the juror’s language	11
difficulties. See id. (“[A] trial court shall not excuse a juror . . . absent a showing that	12
accommodating that juror will create a substantial burden.”).	13
{15} Relatedly—and significantly in this case—even if providing an interpreter	14
would be substantially burdensome and even if reasonable efforts were made, a	15
person who needs an interpreter in order “to fully participate in the proceeding,”	16
Rule 5-122(B)(1), must never be seated on a jury without an interpreter. When a	17
potential juror cannot adequately understand what is being said by witnesses,	18
lawyers, the judge, and other jurors, that person obviously cannot “fulfill their civic	19
dut[y],” Rico, 2002-NMSC-022, ¶ 7, and when a member of the jury cannot	20

11
understand the proceeding, the parties and the public are deprived of the fair trial	1
and reliable verdict to which they are entitled. Therefore, the result in this case—	2
seating Juror 22 without an interpreter—cannot be justified based on any	3
determination that reasonable efforts were made or that providing an interpreter	4
would have been substantially burdensome. Because the second part of the test,	5
standing alone, cannot support the district court’s decision as a matter of law, we	6
must focus on the first part of the test: the need for an interpreter.	7
{16} Specifically, the question before us is whether the district court provided a	8
reasoned explanation that is legally sufficient to establish that Juror 22 did not need	9
an interpreter. We consider this question in light of our Supreme Court’s recognition	10
that an explanation on the record is required to fully protect the rights guaranteed by	11
Article VII, Section 3. In Rico, our Supreme Court stated that when a trial court	12
excuses a juror who needs an interpreter, the trial court must provide a “reasoned	13
explanation on the record” that justifies the excusal. Id. ¶ 11. Although Rico does	14
not include an explicit statement of the rationale behind this requirement, we think	15
the purposes of requiring trial courts to explain their reasoning in this context are the	16
same as in other contexts: to create a record that permits meaningful appellate	17
review, and to inform the affected parties of the basis for the ruling. Cf. State v.	18
Lewis, 2018-NMCA-019, ¶ 16, 413 P.3d 484 (“[W]ithout an adequate record	19
explaining the district court’s ruling and reasoning [regarding the imposition of	20

12
discovery sanctions], we cannot properly perform our role as an appellate court.”);	1
State v. Loretto, 2006-NMCA-142, ¶ 12, 140 N.M. 705, 147 P.3d 1138 (“[I]t is	2
important that the [trial] court make specific findings [related to whether a crime is	3
a serious violent offense for sentencing purposes] both to inform the defendant being	4
sentenced of the factual basis . . . and to permit meaningful and effective appellate	5
review.”). These purposes can only be achieved if the reasoned explanation	6
requirement also applies when, as in this case, a trial court decides to require a person	7
to serve on a jury without an interpreter. We therefore conclude that when the need	8
for an interpreter has been raised, the trial court may only seat that juror without an	9
interpreter after the court conducts an adequate inquiry into the juror’s ability to	10
understand and then provides a reasoned explanation on the record that is legally	11
sufficient to justify its decision—an explanation that supports the determination that	12
the juror can fully participate in the proceedings without the assistance of an	13
interpreter.	14
{17} In this case, the district court did not provide such a reason for seating Juror	15
22 without an interpreter. Although the district court made some remarks during and	16
after counsel’s arguments on the issue, we are not sure how to interpret those	17
remarks. It is not clear to us which remarks were intended to be definitive statements	18
of the reasons for the district court’s ultimate decision, as opposed to comments on	19
the evidence and arguments as they were being presented. For reasons we will	20

13
explain, even if we assume that all of the remarks were made to explain the district	1
court’s reasoning, that reasoning does not justify seating Juror 22 without an	2
interpreter; the remarks do not support the conclusion that Juror 22 understood the	3
English language well enough to meaningfully participate in the proceedings.	4
{18} Here, the court began to address the juror’s need for an interpreter by speaking	5
to Juror 22 on the record. The juror expressed that she had difficulty with “hard	6
words” and could not understand “all the English.” The court asked whether a	7
Navajo interpreter would help, and the juror replied, “Yes, . . . maybe in some	8
places.” The jury clerk then testified that Juror 22 had requested an interpreter on	9
her juror questionnaire but had subsequently told an individual in the clerk’s office	10
in a phone conversation that she would not need an interpreter. It is unclear from the	11
record what exactly the juror was suggesting in that phone conversation: whether	12
she was saying that she did not need an interpreter for the phone conversation itself	13
or whether she was anticipating that she would not need an interpreter at trial. The	14
court eventually stated that it was not going to be able to get an interpreter that day	15
and that it believed “basically [Juror 22] was requesting to be removed.” After	16
hearing argument from the parties, the court decided not to provide the juror with an	17
interpreter and kept the juror on the panel.	18
{19} The State argues that the district court’s remark that “basically [Juror 22] was	19
requesting to be removed” amounted to an implicit credibility determination about	20

14
the juror’s motivations to get out of jury duty. As we understand the State’s	1
argument, it suggests that the district court believed the juror was not being honest	2
about the extent of her difficulties with English because she wanted to avoid jury	3
duty, and that this credibility determination is what supported the judge’s decision	4
to keep Juror 22 on the jury without an interpreter. Even if it were true that Juror 22	5
did not wish to be selected to serve as a juror, the desire to avoid jury duty and the	6
need for an interpreter are not mutually exclusive. In other words, a juror who needs	7
an interpreter might also want to get out of jury duty. A juror’s desire to avoid jury	8
duty does not relieve the trial court of its responsibility to determine whether the	9
juror can understand and participate in the proceedings without an interpreter. The	10
relevant inquiry is not whether the juror wishes to be excused but instead whether	11
the juror needs an interpreter. A statement that the juror wants to get out of jury	12
service does not answer the relevant question about the juror’s ability to understand	13
the proceedings.	14
{20} Because the denial of an interpreter is not justified by a reasoned explanation	15
on the record, we agree with Defendant that Article VII, Section 3 was violated when	16
Juror 22 was kept on the jury without an interpreter. This means that Defendant’s	17
conviction must be reversed. See Samora, 2013-NMSC-038, ¶ 15 (“When Article	18
VII, Section 3 is violated and the objection properly preserved, an appellate court is	19
required to reverse what would have been an otherwise valid conviction.”).	20

15
II. Motion to Suppress	1
{21} Defendant argues that the district court erred in denying Defendant’s motion	2
to suppress for lack of reasonable suspicion because the stop was not justified at its	3
inception. Defendant contends that there were not specific, articulable facts that	4
Defendant was driving while intoxicated or committing a traffic violation, and that	5
the district court’s findings related to the deputy’s reasonable suspicion are not	6
supported by substantial evidence. We disagree.	7
{22} Because “motion[s] to suppress present[] a mixed question of law and fact,”	8
State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation marks	9
and citation omitted), we review “factual matters with deference to the district	10
court’s findings if substantial evidence exists to support them, and [we] review[] the	11
district court’s application of the law de novo.” State v. Almanzar, 2014-NMSC-001,	12
¶ 9, 316 P.3d 183. When the record includes limited facts, we make “all reasonable	13
presumptions in support of the district court’s ruling.” State v. Jason L., 2000-	14
NMSC-018, ¶ 11, 129 N.M. 119, 2 P.3d 856 (text only) (citation omitted).	15
{23} In order for a traffic stop to be reasonable under the Fourth Amendment of the	16
United States Constitution and Article II, Section 10 of the New Mexico	17
Constitution, a police officer must have “reasonable suspicion that the law is being	18
or has been broken.” State v. Martinez, 2018-NMSC-007, ¶ 10, 410 P.3d 186 (text	19

16
only) (citation omitted). “This includes reasonable suspicion that a traffic law has	1
been violated.” State v. Siqueiros-Valenzuela, 2017-NMCA-074, ¶ 11, 404 P.3d 782.	2
{24} Here, the district court found in its written order that Deputy Sanchez “had	3
reasonable suspicion to stop Defendant” because he “saw Defendant’s vehicle	4
swerving within the lane, swerving over the fog line and ma[king] contact with the	5
center medi[an].” The court concluded that “[t]hese two specific articulable	6
facts . . . establish[ed] reasonable suspicion for the [d]eputy to stop . . . Defendant.”	7
Defendant contends that neither finding was supported by substantial evidence. We	8
agree with Defendant that there is no evidence to support the district court’s finding	9
that Defendant made contact with the median, but we conclude that there is	10
substantial evidence to support the finding that Defendant swerved within the lane	11
and over the fog line.	12
{25} There was no video evidence or testimony presented at the suppression	13
hearing to support the district court’s finding that Defendant made contact with the	14
median. Deputy testified that Defendant’s vehicle “almost [came] into contact with	15
. . . the median,” (emphasis added) and the dashcam video does not show	16
Defendant’s car coming into contact with the median. Even drawing reasonable	17
presumptions in favor of the district court’s ruling, see Jason L., 2000-NMSC-018,	18
¶ 11, we conclude that this finding is not supported by substantial evidence.	19

17
{26} Based on that conclusion, we are left with two questions: whether the district	1
court’s finding that Defendant swerved within his lane and over the fog line is	2
supported by substantial evidence, and if so, whether that finding supports	3
reasonable suspicion of a traffic violation. Our answer to both questions is yes.	4
{27} On the substantial evidence question, Defendant argues that Deputy	5
Sanchez’s dashcam video does not show Defendant crossing over the left fog line	6
and that evidence of his tire merely grazing the fog line “does not give rise to	7
reasonable suspicion of a traffic violation.” It is true that the video recording does	8
not clearly show Defendant cross over the fog line. However, Deputy Sanchez	9
testified that while he was on patrol, he saw Defendant’s “car swerving in and out	10
of [its] lane.” The deputy testified that he “saw [Defendant] swerve over the fog line,	11
which is the line that connects to the median, as well as the center stripe line, which	12
would connect him to the other lane of travel, the slow lane.” As the car was	13
approaching a construction zone, Deputy Sanchez saw the car “almost come into	14
contact with the curb, . . . as well as go over a lane again.” At least some of these	15
violations happened before the dashcam was turned on, according to the deputy.	16
Employing all reasonable presumptions in favor of the district court’s ruling, see id.,	17
we presume that the district court made a credibility determination about the	18
deputy’s testimony, and believed that Deputy Sanchez had witnessed traffic	19
violations prior to turning on the dashcam. See State v. Yazzie, 2019-NMSC-008,	20

18
¶ 14, 437 P.3d 182 (“[A]n appellate court must presume that the district court	1
credited an officer’s testimony, even if that testimony is not perfectly aligned with	2
video evidence.”). We will not second-guess this credibility determination. See State	3
v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (“We defer to the	4
district court when it weighs the credibility of witnesses.”).	5
{28} Having determined that the district court’s finding related to Defendant’s	6
swerving is supported by substantial evidence, we review the district court’s	7
application of the law to those facts de novo. See Almanzar, 2014-NMSC-001, ¶ 9.	8
Defendant was charged with failure to maintain his traffic lane, pursuant to Section	9
66-7-317, for “fail[ing] to drive as nearly as practicable entirely within a single lane.”	10
When determining whether an individual maintained their lane as nearly as	11
practicable and therefore whether an officer’s stop for this traffic violation was	12
justified at its inception, this Court held in Siqueiros-Valenzuela that it is necessary	13
for courts to consider the “totality of the circumstances,” including “whether there	14
were any weather conditions, road features, or other circumstances that could have	15
affected or interfered with a driver’s ability to keep [their] vehicle in a single lane.”	16
2017-NMCA-074, ¶ 19. This Court reasoned that the “[d]efendant’s isolated,	17
momentary touching [of] the left shoulder line” as she passed a semi-truck going	18
seventy-five miles per hour on the highway “did not give rise to a reasonable	19
suspicion” of a traffic violation. Id. ¶¶ 22, 26. Therefore, the “[d]efendant’s slight	20

19
touching of the lane line was feasibly and safely executed under the totality of the	1
circumstances.” Id. ¶ 22. Defendant attempts to draw parallels between Siqueiros-	2
Valenzuela and the instant case, arguing that Defendant “maintained his lane as	3
safely as practicable,” considering that he was “enter[ing] a construction zone with	4
an altered traffic pattern,” “[i]t was dark outside,” he was not speeding, and his tires	5
only “grazed the white fog line.” We are not persuaded.	6
{29} Here, unlike the defendant in Siqueiros-Valenzuela, Defendant was not	7
traveling at a high rate of speed on the highway or attempting to pass a semi-truck.	8
Instead, there is evidence that before Defendant entered the construction zone, he	9
swerved out of his lane multiple times. Additionally, the evidence did not establish	10
one brief touch of the shoulder lane—as was the case in Siqueiros-Valenzuela—but	11
rather multiple instances of swerving within and outside the lane. Finally, although	12
it was dark outside, Defendant does not argue that darkness alone justified the lane	13
departures here, and we are aware of no basis for reaching that conclusion.	14
{30} We conclude that the totality of circumstances gave the deputy reasonable	15
suspicion to believe that Defendant failed to maintain his lane as nearly as	16
practicable. See id. ¶ 19. We therefore hold that the district court did not err by	17
denying Defendant’s motion to suppress.	18

20
III. Sufficiency of the Evidence	1
{31} Defendant argues that the evidence is not sufficient to support his conviction,	2
and we address this argument because if Defendant is correct, double jeopardy	3
principles would bar the State from trying Defendant again on remand. See State v.	4
Mascareñas, 2000-NMSC-017, ¶ 31, 129 N.M. 230, 4 P.3d 1221. Defendant argues	5
that “[t]he State failed to prove that [he] was impaired to the slightest degree”	6
because his blood alcohol content was under the per se limit for driving while	7
intoxicated, “he was driving as safely as practicable,” and his performance on field	8
sobriety tests can be explained by his bad back. These arguments do not require	9
reversal. “[V]iew[ing] the evidence in the light most favorable to the guilty verdict,	10
[and] indulging all reasonable inferences and resolving all conflicts in the evidence	11
in favor of the verdict,” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal	12
quotation marks and citation omitted), we conclude that the evidence suffices.	13
{32} We measure the sufficiency of the evidence against the jury instructions	14
provided at trial. State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883.	15
Here, the jury instructions addressed the State’s two alternative theories of DWI; the	16
jury was instructed, in relevant part, that the State must prove that	17
1. [D]efendant operated a motor vehicle;	18
2. At the time:	19
a. [D]efendant was under the influence of intoxicating	20
liquor, that is, as a result of drinking liquor . . . [D]efendant was	21

21
less able to the slightest degree, either mentally or physically, or	1
both, to exercise the clear judgment and steady hand necessary	2
to handle a vehicle with safety to the person and the public; or	3
b. [D]efendant was under the influence of drugs to such a	4
degree that . . . [D]efendant was incapable of safely driving a	5
vehicle.	6
(Emphasis added.) Because we conclude that the first theory is supported by	7
sufficient evidence, we do not consider the second. When determining whether an	8
individual is impaired to the slightest degree, the jury may “rely on common	9
knowledge and experience to determine whether [the d]efendant was under the	10
influence of alcohol[,]” including indicators such as their “driving behavior, physical	11
condition, admission of drinking, and performance on the field sobriety tests.” State	12
v. Neal, 2008-NMCA-008, ¶ 27, 143 N.M. 341, 176 P.3d 330.	13
{33} That standard is met by the State’s evidence in this case. At trial, the deputy	14
testified about Defendant’s driving leading up to his arrest. Deputy Sanchez stated	15
that he “observed [Defendant’s] vehicle swerving within its lane and swerving out	16
of its lane, going over the fog lines,” and the deputy testified that he saw Defendant	17
“almost strike the curb.” After pulling Defendant over and approaching the driver’s	18
side window, Deputy Sanchez testified that he smelled the “odor of an alcoholic	19
beverage emitting from the vehicle,” and observed “slurred speech from	20
[Defendant], as well as bloodshot watery eyes.” Then, “when [Defendant] exited the	21

22
vehicle, [Deputy Sanchez] notice[d] that [Defendant] was unsteady on his feet and	1
he . . . walk[ed] with a staggering motion.”	2
{34} Deputy Sanchez also testified about his observations while Defendant	3
performed field sobriety tests. When the deputy was administering the horizontal	4
gaze nystagmus test, the deputy continued to smell the odor of an alcoholic beverage,	5
and the deputy observed “a very noticeable body sway.” Then, during the walk-and-	6
turn test, Defendant “struggled to get into the position.” Deputy Sanchez testified	7
that	8
in the instructional stage, [Defendant got] out of the position . . . he	9
started off unbalanced, he . . . step[ped] off line, [and] he missed heel-	10
to-toe steps. When he got close to the turn portion of the test, he took	11
an additional step, he turned incorrectly by not leaving his front foot	12
planted. . . . When he got turned around, [Defendant also] used his arms	13
to balance . . . and then on the way back, he . . . missed heel-to-toe steps	14
and he stepped off line.	15
And during the one-leg stand test, Defendant “sway[ed],” “put his foot down,” and	16
“hopped to try to regain his balance.” Based on these indicators of impairment,	17
Deputy Sanchez arrested Defendant. The deputy then did an inventory search of	18
Defendant’s car and found two alcoholic beverage shooters. Although Defendant	19
had previously denied drinking any alcohol, after the shooters were found,	20
Defendant admitted to the deputy that he had “two of [the shooters] . . . hours ago.”	21
Defendant’s own admission that he drank alcohol was further evidence available to	22
the fact-finder to support a DWI conviction. See Neal, 2008-NMCA-008, ¶ 27.	23

23
{35} Finally, Melinda Boyd, a forensic toxicologist, testified regarding the results	1
of Defendant’s blood alcohol content test. She testified that Defendant had alcohol	2
in his blood and that the amount of alcohol in his blood could impair his ability to	3
drive.	4
{36} Viewing all of this testimony together under our deferential standard of	5
review, we hold that the evidence suffices to support Defendant’s DWI conviction.	6
See State v. Gutierrez, 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751	7
(upholding a DWI conviction when the defendant smelled of alcohol, had bloodshot	8
and watery eyes, failed field sobriety tests, admitted to drinking alcohol, the	9
defendant’s vehicle was weaving into other traffic lanes, defendant nearly hit another	10
vehicle on the road, and the officers believed the defendant was intoxicated). We	11
therefore hold that double jeopardy does not bar retrial.	12
{37} Defendant’s attacks on the evidence are not persuasive to us. First, Defendant	13
argues that his blood sample was under the per se limit for driving while intoxicated,	14
pursuant to Section 66-8-102(C)(1). However, the State’s theory at trial was not that	15
Defendant’s blood alcohol level was above the per se DWI limit. Instead, the State’s	16
theory, as reflected in the jury instructions, was that Defendant was impaired to the	17
slightest degree. Second, Defendant contends that “he was driving as safely as	18
practicable[] given the circumstances” and that his poor performance on the field	19
sobriety tests is attributable to his bad back. We will not reverse on this basis because	20

24
the jury was not required to accept these defenses. See State v. Rojo, 1999-NMSC-	1
001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal	2
does not provide a basis for reversal because the jury is free to reject [the	3
d]efendant’s version of the facts.”).	4
IV. Motion to Exclude Expert Witness Testimony	5
{38} Defendant argues “that the district court abused its discretion by allowing the	6
lab analyst to testify at trial, despite the State’s delayed disclosure.” We disagree.	7
{39} We review a district court’s decision regarding whether to exclude a witness	8
for an abuse of discretion, “view[ing] the evidence—and all inferences to be drawn	9
from the evidence—in the light most favorable to the district court’s decision.” State	10
v. Le Mier, 2017-NMSC-017, ¶ 22, 394 P.3d 959. Importantly, “[t]rial courts possess	11
broad discretionary authority to decide what sanction to impose,” id., and as an	12
appellate court, “we cannot second-guess our [trial] courts’ determinations as to how	13
their discretionary authority is best exercised,” id. ¶ 17. When, as in this case, a trial	14
court is determining whether the exclusion of a witness is an appropriate remedy for	15
a discovery violation, the court must consider the factors from State v. Harper, 2011-	16
NMSC-044, ¶ 15, 150 N.M. 745, 266 P.3d 25, expounded upon in Le Mier: “(1) the	17
culpability of the offending party, (2) the prejudice to the adversely affected party,	18
and (3) the availability of lesser sanctions.” 2017-NMSC-017, ¶ 15. Because the	19

25
district court chose not to sanction the State, we limit our review to the first two	1
factors.	2
{40} The relevant facts are as follows. Defendant’s original trial was set for June	3
17, 2021. The State had included “Dr. Samuel Kleinman, or [d]esignee” from the	4
Scientific Laboratory Division in its witness list filed November 21, 2019, and	5
intended to call Ms. Boyd to testify regarding the lab results of Defendant’s blood	6
alcohol content. The first trial, however, ended in a mistrial. Another discovery and	7
scheduling order was issued on April 18, 2022, requiring witness lists to be filed ten	8
days prior to the final pretrial conference. The pretrial conference was held on	9
August 29, 2022—no witness list was filed prior to this conference and both parties	10
stated that they were prepared for trial with no mention of the witness list.	11
{41} Defendant filed a motion to exclude the State’s expert witness testimony on	12
October 6, 2022—the day before trial—in which he referenced communications in	13
the weeks leading up to trial where “the State represented that its contemplated	14
witness for the laboratory would be unavailable to testify, and that it may attempt to	15
obtain a different witness to lay the foundation for the laboratory results.” Defendant	16
alleged that on October 5, 2022, the State “contacted defense counsel representing	17
that the laboratory witness was now available to testify and that the State would be	18
calling Ms. Boyd.” These communications are not included in the record. See State	19

26
v. Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of record	1
present no issue for review.”).	2
{42} The district court heard argument on Defendant’s motion to exclude the	3
State’s expert witness on the morning of trial. The State addressed each Harper	4
factor and confirmed during argument that it had been unsure whether Ms. Boyd	5
would be able to testify, but that it notified Defendant of its uncertainty, and then	6
later as soon as it confirmed her availability. The district court denied Defendant’s	7
motion orally and in its written order stated, “This is a retrial after a mistrial. Same	8
witness at prior trial. Witness was at the prior trial. Defense was prepared at prior	9
trial.”	10
{43} We first consider the level of culpability attributable to the State. See Le Mier,	11
2017-NMSC-017, ¶ 15. During its argument on the motion, the State asserted it was	12
unsure whether an expert would be available to testify at Defendant’s second trial,	13
but the State had put defense counsel on notice that someone would likely testify	14
from the Scientific Laboratory Division when it filed its witness list for the first trial.	15
Once the State knew Ms. Boyd would be available for the second trial, it alerted	16
defense counsel via email. The district court did not explicitly address culpability in	17
its order, but we believe it implicitly found that the State was not sufficiently	18
culpable, as it filed a witness list for the first trial and maintained contact with	19
Defendant about the status of its witness.	20

27
{44} The second factor considers the prejudice to Defendant and the district court.	1
See id. ¶¶ 15, 25-26. Defendant argues that he was prejudiced because he “would	2
have prepared for trial differently had he known Ms. Boyd was going to testify as an	3
expert and lay the foundation for the blood test results.” However, as the district	4
court noted in its order, Ms. Boyd was called to testify at Defendant’s prior trial.	5
Therefore, according to the district court, defense counsel should have already	6
prepared to do an examination of the exact same witness and was not prejudiced by	7
the district court’s decision to allow the State’s expert to testify.	8
{45} While the district court did not explicitly refer to Harper or Le Mier in its	9
order, the court heard argument on the factors, and we believe it implicitly addressed	10
the first two factors in its oral ruling and written order. The district court found that	11
the State was not sufficiently culpable, because the State communicated the status	12
of the expert witness to Defendant, and that Defendant was not sufficiently	13
prejudiced, as he had the opportunity to prepare for the same witness at the prior	14
trial. We conclude that the district court did not abuse its discretion because its	15
decision was not “clearly untenable or not justified by reason,” and we therefore will	16
not disturb the court’s order. Le Mier, 2017-NMSC-017, ¶ 22 (internal quotation	17
marks and citation omitted).	18
CONCLUSION	19
{46} We reverse Defendant’s conviction and remand for a new trial.	20

28
{47} IT IS SO ORDERED.	1
_____________________________	2
ZACHARY A. IVES, Judge	3
WE CONCUR:	4
____________________________	5
KRISTINA BOGARDUS, Judge	6
____________________________	7
JANE B. YOHALEM, Judge	8