STATE OF NEW MEXICO v. DEENA WISNER

Defendant appeals from the district court’s order that affirms her magistrate18

conviction for aggravated DWI (first offense, .16 or more) and remands for imposition1

of the magistrate sentence. [RP 100] Our notice proposed to affirm, and Defendant2

filed a memorandum in opposition. We remain unpersuaded by Defendant’s3

arguments, and affirm.

{2} Defendant continues to challenge the validity of her seizure or stop, specifically5

arguing that Officer McCoy lacked reasonable suspicion to justify the stop. [DS 3;6

MIO 1] See generally State v. Walters, 1997-NMCA-013, ¶ 10, 123 N.M. 88, 9347

P.2d 282 (stating that investigatory stops, which constitute a seizure for Fourth8

Amendment purposes, require reasonable suspicion).9

{3} As provided in our notice, Sergeant McCoy was fueling his patrol car at the10

easternmost gas pump at a Conoco convenience store and gas station. [RP 92] As11

Defendant approached the station, her vehicle caught Sergeant McCoy’s attention12

because of the noise it made due to its movement on a flat, right front tire. [RP 92]13

Defendant’s vehicle veered north off of Aztec to enter the premises of the station a14

short distance from Sergeant McCoy. [RP 92] Defendant drove directly toward15

Sergeant McCoy’s police unit located beside the gas pump and stopped her vehicle16

ten feet short of Sergeant McCoy’s police unit, at which time Sergeant McCoy17

observed that Defendant was staring blankly ahead with an open mouth. [RP 93] After18

pausing for one to two seconds, Defendant turned her vehicle sharply to the north to19

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clear Sergeant McCoy’s vehicle and pulled into the front of the convenience store,1

rather than at the air pump located northeast of the convenience store building. [RP2

93] 3

{4} Based on the foregoing, we agree with the district court that the stop was4

justified by Sergeant McCoy’s reasonable suspicion that Defendant was driving while5

impaired and by Defendant’s violation of NMSA 1978, Section 66-3-901 (1985),6

which prohibits the driving of vehicles without required equipment or that are in an7

unsafe condition. [DS 3; RP 94] Although Defendant believes this Court places too8

much emphasis on her “blank stare and slack jaw” [MIO 3], as well as on her chosen9

course that she drove through the parking lot [MIO 3], we disagree, because when10

viewed together, they provide reasonable suspicion that Defendant was driving while11

impaired. [RP 93] See State v. Robbs, 2006-NMCA-061, ¶ 9, 139 N.M. 569, 136 P.3d12

570 (“Questions of reasonable suspicion are reviewed de novo by looking at the13

totality of the circumstances to determine whether the detention was justified.”); see14

also State v. Salas, 2014-NMCA-043, ¶ 15, 321 P.3d 965 (holding that, under the15

totality of circumstances, the defendant’s erratic driving provided reasonable16

suspicion that he was driving while impaired); State v. Chapman, 1999-NMCA-106,17

¶ 15, 127 N.M. 721, 986 P.2d 1122 (recognizing that a motorist’s behavior and18

appearance may be considered when addressing the reasonableness of a detention).19

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{5} Also, and as discussed in our notice, apart from Defendant’s odd driving1

behavior and concerning facial demeanor, Defendant’s detention was further justified2

by Sergeant McCoy’s observation that Defendant was driving a vehicle with a flat tire,3

in violation of Section 66-3-901 (prohibiting the driving of a vehicle on a highway4

without required equipment or in an unsafe condition). See State v. Vandenberg, 2003-5

NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19 (noting that suspicion of violating a6

traffic law supplies initial justification for stopping a vehicle); State v. Hubble, 2009-7

NMSC-014, ¶ 8, 146 N.M. 70, 206 P.3d 579 (recognizing that the reasonable8

suspicion test is an objective one, such that the subjective belief of the officer does not9

in itself affect the validity of the stop). We acknowledge Defendant’s argument that10

her driving in the private service station parking lot did not satisfy the requirement in11

Section 66-3-901 that the prohibited driving be on a “highway”. [MIO 4] See NMSA12

1978, § 66-1-4.8(B) (1991) (defining “highway” or “street” as “every way or place13

generally open to the use of the public as a matter of right for the purpose of vehicular14

travel”). However, although the service station parking lot does not fall within the15

plain meaning or the statutory definition of “highway,” see State v. Brennan,16

1998-NMCA-176, ¶ 7, 126 N.M. 389, 970 P.2d 161, as provided in the undisputed17

[MIO 1] facts set forth in our notice, Defendant’s vehicle veered north off of Aztec18

to enter the premises of the station. [RP 92] Thus, apart from driving in the parking19

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lot, before this Defendant was driving on Aztec, a “highway” as contemplated by1

Section 66-3-901.

To conclude, for the reasons discussed above and in our notice, we hold that the stop was justified by Sergeant McCoy’s reasonable suspicion that Defendant was driving while impaired, as well as by Defendant’s violation of Section 66-3-901. We affirm.