IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMSC-033
Filing Date: June 24, 2010
Docket No. 31,785
CITY OF SANTA FE,
Plaintiff-Appellant,
v.
MARCOS MARTINEZ,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge
R. Alfred Walker
Santa Fe, NM
for Appellant
Robert E. Tangora, L.L.C,
Robert E. Tangora
Santa Fe, NM
for Appellee
OPINION
SERNA, Justice.
{1} Marcos Martinez (Defendant) was convicted in municipal court of aggravated driving
while intoxicated (DWI), contrary to Santa Fe City Code, Section 12-6-12.1 (2007).
Pursuant to Rule 8-703 NMRA, Defendant appealed to the district court. In the district
court, Defendant moved to dismiss the charges based on a violation of the misdemeanor
arrest rule and, in the alternative, moved to suppress any evidence obtained as a result of the
warrantless search of Defendant’s home. After an evidentiary hearing, the district court
ruled that Defendant’s arrest was unlawful, based on a violation of the misdemeanor arrest
rule, and dismissed the aggravated DWI charge. The City of Santa Fe (“City”) appealed to
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this Court raising one issue: whether the district court erred when it held that Defendant’s
arrest violated the misdemeanor arrest rule. We hold the misdemeanor arrest rule does not
apply to DWI investigations. Accordingly, we reverse.
I. FACTUAL BACKGROUND AND PROCEEDINGS BELOW
{2} On December 22, 2007, Santa Fe City Police Sergeant Troy Baker responded to a
call from a DeVargas Mall employee, who had observed a man staggering around the mall
parking lot and attempting to unlock several different vans. The man eventually unlocked
the door to a van and drove away. The employee provided the police with a description of
the van, as well as the van’s license plate number. After the police dispatch provided the
van’s registered owner’s address, Sergeant Baker went to the residence and observed a van
that matched the employee’s description in the driveway. Sergeant Baker touched the engine
compartment and felt that it was warm. Sergeant Baker then knocked on the front door of
the residence and, through the door’s glass pane, saw Defendant emerge from an inner room,
stagger past the doorway and strike his head on the wall next to the door, causing him to fall
on his hands and knees. Defendant stood up and walked back into the room from which he
had emerged. Sergeant Baker knocked on the door a second time, and Defendant again
staggered to the door and fell once again. From a seated position, Defendant reached up and
unlocked the door. Sergeant Baker entered the residence and asked Defendant who had been
driving the van. Defendant replied that “he had been driving it earlier.” Sergeant Baker
observed that Defendant had a very strong odor of alcohol on his breath, slurred speech,
blood-shot watery eyes, and was unsteady on his feet. Sergeant Baker placed Defendant
under arrest for DWI, and Defendant refused to take a breath test. Defendant was charged
for aggravated DWI in municipal court.
{3} City filed a motion in limine in municipal court, seeking a ruling that Sergeant Baker
had lawfully arrested Defendant. City argued the “in presence” requirement of the
misdemeanor arrest rule had been met and, in the alternative, Sergeant Baker’s interaction
with Defendant was an investigatory stop, rendering the misdemeanor arrest rule
inapplicable under State v. Ochoa, 2008-NMSC-023, 143 N.M. 749, 182 P.3d 130.
Defendant responded and filed a motion to suppress evidence based on (1) a violation of the
misdemeanor arrest rule and (2) a violation the Fourth Amendment to the United States
Constitution and Article II, Section 10 of the New Mexico Constitution. The municipal
court denied Defendant’s motion, and after the subsequent bench trial, found Defendant
guilty of aggravated DWI. Defendant appealed his conviction to the district court.
{4} In the district court, Defendant filed a motion to dismiss based on a violation of the
misdemeanor arrest rule and, in the alternative, moved to suppress evidence based on the
same constitutional violations he asserted in municipal court. After an evidentiary hearing,
the district court found Sergeant Baker’s arrest of Defendant unlawful based on a violation
of the misdemeanor arrest rule, and dismissed Defendant’s aggravated DWI charge. The
district court did not address whether the arrest was constitutionally valid under either the
Fourth Amendment to the United States Constitution or Article II, Section 10 of the New
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Mexico Constitution. City appeals the district court’s dismissal to this Court pursuant to
NMSA 1978, Section 35-15-11 (1959).
II. DISCUSSION
A. Standard of Review
{5} “Whether the [lower court] properly relied on the misdemeanor arrest rule requires
interpretation of established case law. The application and interpretation of law is subject
to a de novo review.” Ochoa, 2008-NMSC-023, ¶ 10.
B. Warrantless Arrests
{6} At common law, there are two distinct rules pertaining to warrantless arrests—one
for suspected felons and the other for suspected misdemeanants. When a police officer
suspects an individual of committing a felony,“[t]he usual rule is that a police officer may
arrest without warrant one believed by the officer upon reasonable cause to have been guilty
of a felony.” Carroll v. United States., 267 U.S. 132, 156 (1925). On the other hand, an
officer “may only arrest without a warrant one guilty of a misdemeanor if committed in his
presence.” Id. at 156-157.
C. The Misdemeanor Arrest Rule in New Mexico
{7} New Mexico’s “misdemeanor arrest rule is a holdover from the common law
distinction between warrantless arrests for felonies and for misdemeanors.” Ochoa, 2008-
NMSC-023, ¶ 11. Although the “in presence” requirement of the rule remained intact,
“[o]ver time, the . . . rule has been further limited by both the legislature and the courts.”
Ochoa, 2008-NMSC-023, ¶ 12 (citing NMSA 1978, § 66-8-125(B) (1978) (permitting
officers in specific circumstances to make warrantless arrests if the officer has reasonable
grounds based on personal investigation that may include information from eyewitnesses));
see also NMSA 1978 § 31-1-7(A) (1995) (allowing warrantless arrests for domestic
disturbances); State v. Lyon, 103 N.M. 305, 309, 706 P.2d 516, 520 (Ct. App. 1985)
(allowing for a police-team exception to the “in the presence requirement” of the
misdemeanor arrest rule); State v. Marquez, 103 N.M. 265, 267, 705 P.2d 170, 172 (Ct. App.
1985) (same).
{8} Our Court of Appeals has addressed in several opinions the “in the presence
requirement” of the misdemeanor arrest rule, specifically in the DWI context. See State v.
Reger, No. 28,900, slip op. (N.M. Ct. App. May 11, 2010); State v. Greyeyes, 105 N.M. 549,
552, 734 P.2d 789, 782 (Ct. App. 1987), cert. denied, 105 N.M. 521, 734 P.2d 761 (1987);
State v. Boone, No. 8,093, mem. op. (N.M. Ct. App. Sept. 12, 1985), aff'd in part and rev'd
in part, 105 N.M. 223, 731 P.2d 366 (1986). Those cases, though not explicitly, created a
practical exception to the “in the presence requirement,” holding that the misdemeanor of
DWI occurred in the arresting officer's presence—even where the officer "did not personally
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see the defendant drink alcohol or actually operate his [vehicle]”—under circumstances
where the officer's perceptions at the scene gave him probable cause to suspect that a DWI
had occurred. Greyeyes, 105 N.M. 549, 551-52, 734 P.2d 789, 791-92; see also Reger, No.
28,900, slip op. at 5.
{9} However, no opinion of this Court has directly answered the question of whether the
misdemeanor arrest rule ought to apply to DWI investigations. As we noted recently, this
Court in Boone v. State, 105 N.M. 223, 731 P.2d 366 (1986), essentially sidestepped the
issue by importing "actual physical control" into the definition of “drives” in our DWI
statute because of a “disinclination to alter the common law rule prohibiting warrantless
misdemeanor arrests when the misdemeanor does not occur in the presence of the arresting
officer.” See State v. Sims, 2010-NMSC-027 at 11 (N.M. Sup. Ct. June 8, 2010).
{10} We must decide if an application of the misdemeanor arrest rule is appropriate given
the circumstances or if we should create an exception. Specifically, we must determine if
the misdemeanor arrest rule, with its “in the presence” requirement, is appropriate for the
investigations of DWI cases. For the reasons that follow, we hold that it is not.
D. The Misdemeanor Arrest Rule Does Not Apply to DWI Cases
{11} The misdemeanor arrest rule was “developed . . . during a period when. . . arrests
were made by private citizens, when bail for felonies was usually unattainable . . . when
years might pass before the royal judges arrived for a jail delivery,” and when “a prisoner
had an excellent chance of dying of disease before trial.” Cave, 48 N.M. at 484, 152 P.2d at
890. Thus, “the original purpose of the [misdemeanor arrest] rule was to minimize the harm
historically associated with lengthy custodial detentions for minor crimes.” Ochoa, 2008-
NMSC-023, ¶ 12. Although the continued viability of the misdemeanor arrest rule has been
questioned generally, see Cave, 48 N.M. at 483-84, 152 P.2d at 890, we conclude that DWI
investigations, in particular, fall outside the original purpose of the rule.
{12} Under the common law rules for warrantless arrests, there is an inherent balance
between public safety and a suspect’s constitutional rights. Because felonies are a greater
concern with respect to public safety, officers are granted more latitude when conducting
investigations of such crimes. See Carroll, 267 U.S. at 157 (“[T]he reason for arrest without
warrant on a reliable report of a felony was because the public safety and the due
apprehension of criminals charged with heinous offenses required that such arrests should
be made at once without [a] warrant.”). Conversely, since less severe crimes
(misdemeanors) do not threaten public safety to the level of felonies, a warrantless arrest of
a suspected misdemeanant cannot be made unless the arresting officer personally observes
the offense. Thus, we examine the crime of DWI in order to determine how police officers
may investigate such crimes.
{13} The crime of DWI as defined by our Legislature is not a “minor crime” as
contemplated by the misdemeanor arrest rule. The United States Supreme Court has noted
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that “[n]o one can seriously dispute the magnitude of the drunken driving problem or the
States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on
the Nation’s roads are legion.” Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451 (1990).
Also, this Court in State v. Harrison stated:
the public’s interest in deterring individuals from driving while intoxicated
is compelling. This is due to the dangers of the practice, not only to those
who operate the motor vehicles while under the influence, but also to those
innocent individuals who are injured or killed as a result of DWI accidents.
115 N.M. 73, 77, 846 P.2d 1082, 1086 (Ct. App. 1992). Given the compelling public interest
in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI
should be treated as a felony for purposes of warrantless arrests.
{14} Additionally, our legislative scheme of delineating the crime of DWI should not
affect an officer’s ability to make warrantless arrests. By design, the crime of DWI in New
Mexico can be either a misdemeanor or a felony depending on the number of prior
convictions of the offender. For the first three convictions, the charge of DWI carries with
it a punishment classification of a misdemeanor. NMSA 1978, Section 66-8-102 (E)-(F)
(1953, as amended through 2007). Upon a fourth or subsequent conviction thereafter, an
offender is guilty of a felony. Section 66-8-102 (G)-(J). Although a DWI offender who has
had less than three convictions would only be guilty of a misdemeanor, such a classification
makes no difference in the severity of the offense’s consequences, nor does it dilute the
public’s concern; a first DWI or subsequent offense can have the same deadly results as a
fourth offense. Further, an officer investigating a DWI may not be privy to the suspect’s
criminal record and thus, may not know if he or she is investigating a misdemeanor or a
felony. Thus, law enforcement officers conducting DWI investigations should not be
hindered by the “in the presence” requirement of the misdemeanor arrest rule, and should
only be subjected to the constitutional probable cause inquiry of felony warrantless arrests.
{15} Also, given the time-sensitive nature of the evidence inherent in DWI investigations,
the requirement that an officer observe the offense in order to make a warrantless arrest
would seriously hinder such investigations and would make it very difficult for subsequent
prosecutions. In addressing the issue of whether an arrest was valid under Section 66-8-125,
a statute that allows for a warrantless arrest of person who is at the scene of a motor vehicle
accident, this Court in City of Las Cruces v. Sanchez stated:
We believe, however, that limiting officers’ authority to arrest under Section
66-8-125, by prohibiting the arrest of an individual who is removed from the
scene of the accident before officers arrive to investigate, would be
inconsistent with the legislative intent of the statute. The ineffectual result of
such a limitation is especially pernicious in DWI investigations. Because
evidence of intoxication fades over time, officers must promptly locate and
investigate an individual suspected of DWI. If officers are required to
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encounter an individual at the scene of an accident for an arrest to be valid
under Section 66-8-125, then the officers’ authority to arrest without a
warrant would be defeated by an individual's mere absence from the scene
prior to the investigating officers’ arrival. This would create the added delay
of requiring a warrant for the individual's arrest and would provide an
intoxicated individual with a potential means of avoiding a DWI charge
where the added delay of obtaining a warrant allows evidence of the
individual’s level of intoxication at the time of driving to dissipate. Such a
limitation would provide an intoxicated individual with an enticing incentive
to flee.
2009-NMSC-026, ¶ 15, 146 N.M. 315, 210 P.3d 212. The same rationale applies in this
situation. If an officer was prohibited from making a warrantless arrest of a suspected drunk
driver based on the fact that the officer did not actually observe the incident, the officer
would be posed with two options—releasing the suspected drunk driver or obtaining a
warrant. If the officer chose to pursue the investigation and obtain a warrant, the evidence
needed for the subsequent prosecution could be diluted or lost entirely. In addition to the
effect on the evidence, there is also a risk that during the time period in which the officer is
obtaining a warrant, a suspect may get into his or her car and drive away, endangering both
himself or herself and the public at large. Such a risk is untenable given the strong public
interest in deterring the crime of DWI. Thus, “[r]equiring an officer to . . . observe the
violation would be superfluous.” Ochoa, 2008-NMSC-023, ¶ 15.
{16} For the foregoing reasons, we hold that the misdemeanor arrest rule does not apply
to DWI investigations and, accordingly, an investigating officer need not observe the offense
in order to make a warrantless arrest. Instead, the warrantless arrest of one suspected of
committing DWI is valid when supported by both probable cause and exigent circumstances.
See State v. Johnson, 1998-NMCA-019, ¶ 10, 124 N.M. 647, 954 P.2d 79 (interpreting
Article II, Section 10 of the New Mexico Constitution to require warrantless arrests for
suspected felons to be supported by both probable cause and exigent circumstances).
III. CONCLUSION
{17} The district court erred when it found that Defendant’s arrest was invalid due to a
violation of the misdemeanor arrest rule. We reverse the district court’s dismissal and
remand to the district court for a determination of whether Defendant’s warrantless arrest
was supported by both probable cause and exigent circumstances.
{18} IT IS SO ORDERED.
____________________________________
PATRICIO M. SERNA, Justice
WE CONCUR:
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____________________________________
CHARLES W. DANIELS, Chief Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
Topic Index for City of Santa Fe v. Martinez, Docket No. 31,785
CL CRIMINAL LAW
CL-DG Driving While Intoxicated
CL-MS Misdemeanor
CL-MH Motor Vehicle Violations
CA CRIMINAL PROCEDURE
CA-AT Arrest
CA-AE Arrest Warrant
CA-PA Probable Cause
CA-WA Warrantless Arrest
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