concurrence">ROBINSON, Judge

(specially concurring).

{43} New Mexico has a serious problem with drunk drivers that are causing havoc in our state. This case tells us something about what is wrong with the way this problem is being handled at the trial stage.

{44} Here is how I see it. The district attorney charged Defendant with driving while intoxicated, charging a violation of Section 66-8-102. In relevant part, it states:

66-8-102. Persons under the influence of intoxicating liquor or drugs; aggravated driving while under the influence of intoxicating liquor or drugs; penalty.

A. It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.

B. It is unlawful for a person who is under the influence of any drug to a degree that renders him incapable of safely driving a vehicle to drive a vehicle within this state.

C. It is unlawful for:

(1) a person who has an alcohol concentration of eight one hundredths or more in his blood or breath to drive a vehicle within this state; or

(2) a person who has an alcohol concentration of four one hundredths or more in his blood or breath to drive a commercial motor vehicle within this state.

Under this section of our DWI laws, the district attorney has two different ways to show that the accused was intoxicated while operating his vehicle: (1) under Section 66-8 — 102(C)(1), he can present proof that the driver had a breathalyzer test result of .08 or more; or (2) under Section 66-8-102(A), he can show that the driver was “under the influence of intoxicating liquor” while operating his vehicle. For example, he can do this by presenting proof of the physical status of the driver, showing that the driver had bloodshot, watery eyes, had slurred speech, and his breath smelled of alcohol. He can also present testimony about the field sobriety tests. He can show whether the driver was stumbling or walking steadily. He can also show whether the driver admitted drinking alcoholic beverages at the time of the incident.

{45} A district attorney who charges a violation of the entire Section 66-8-102 is not limited to subsection C. If he cannot prove the breath alcohol test result was at least .08, he is still free to prove the defendant was “under the influence” under subsection A. What happened in this case is that the breathalyzer test results were not valid because the reliability of the breathalyzer machine was not established. That was a proper holding by the metropolitan court and by this Court. With that, I do not disagree. The trial judge correctly suppressed the breath alcohol test results, but he should not have acquitted Defendant or dismissed the charges.

{46} The district attorney still had his other option to convict and he had already presented sufficient evidence to prove that Defendant was under the influence of intoxicating liquor. In State v. Dutchover, 85 N.M. 72, 73, 509 P.2d 264, 265 (Ct.App.1973), this Court explained that “[u]nder the influence means that to the slightest degree [the] defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public.” (internal quotation marks and citation omitted) (emphasis added). The trial judge, in spoken comments, expressed doubt that, without the BAT results, he had sufficient evidence to rule that Defendant was nevertheless still guilty of DWI. The trial judge was wrong. See State v. Gutierrez, 1996-NMCA-001, 121 N.M. 191, 909 P.2d 751. In Gutierrez, this Court upheld a DWI conviction based on behavior evidence alone and stated that the defendant “was not convicted of having a particular blood-alcohol level,” but was “convicted of the more general offense of driving while intoxicated.” Id. HA In that particular case, the defendant smelled of alcohol, had bloodshot eyes, failed field sobriety tests, and admitted to drinking alcohol. Id. In addition, there was evidence that the defendant’s vehicle was weaving into other traffic lanes. Id. This Court held that even if the BAT card results had not been admissible, the defendant’s DWI conviction, under Section 66-8-102(A), was fully supported by the “overwhelming” behavior evidence. Id.

{47} Let us examine the evidence here. Officer Tixier, the arresting officer, testified that Defendant was driving at night with his taillights off. Defendant had “extremely” watery eyes and was unsteady in getting out of his vehicle. He had a strong odor of alcohol on his breath; and, more importantly, Defendant admitted he had “a few beers” and a “Bacardi.” What’s more, Officer Tixier also testified that Defendant performed poorly on the field sobriety tests he administered to Defendant.

{48} If there was ease law that said a driver could be convicted only upon a showing of “extreme,” or “great” impairment, I could understand how the trial judge could have had some doubt about Defendant’s guilt, but, under the facts of this case, I cannot understand how the judge could have reasonable doubt about impairment to the slightest degree. Unfortunately, the district attorney did not request the trial judge to find Defendant guilty based upon this evidence; he failed to preserve this issue on appeal. This Court cannot repair what has been irreparably broken.

{49} As an added observation, the trial judge should not have dismissed the charge concerning driving without lights just because the breath alcohol test result was unreliable. That evidence rises or falls on its own merits. Here, there was uncontroverted evidence that Defendant was driving with his lights off at night, which is a violation of law separate from DWI.

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