(specially concurring).
I concur in the majority result but would add to the reasoning found in the discussion of fresh pursuit.
I first note that in Benally v. Marcum, 89 N.M. 463, 553 P.2d 1270 (1976), we recognized that the common law doctrine of fresh pursuit allowed police officers to pursue and arrest suspected felons beyond the territorial boundaries of their jurisdiction. 89 N.M. at 466, 553 P.2d at 1273. In response to this limited common law doctrine allowing police officers to only pursue felons and not misdemeanants, the legislature, in 1981, enacted an act relating to law enforcement, allowing fresh pursuit of a misdemeanant across intrastate jurisdictional lines. 1981 N.M.Laws, ch. 102, § 1 (codified at NMSA 1978, § 31-2-8 (Repl. Pamp.1984)). Section 31-2-8(A) and (B) provides in pertinent part:
A. Any county sheriff or municipal police officer who leaves his jurisdictional boundary while in fresh pursuit of a misdemeanant whom he would otherwise have authority to arrest shall have the authority to arrest that misdemeanant anywhere within this state and return him to the jurisdiction in which the fresh pursuit began without further judicial process.
B. For purposes of this section, “fresh pursuit of a misdemeanant” means the pursuit of a person who has committed a misdemeanor in the presence of the pursuing officer. Fresh pursuit shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
In my view, the critical issue in this case is whether the generic term “misdemean- or” in Section 31-2-8(B) includes “petty misdemeanors,” allowing police officers to make extraterritorial arrests for DWI, an offense carrying “petty misdemeanor” penalties. I believe it does. I note that the criminal law evolved over several centuries in England creating three classifications of crimes: treasons, felonies, and misdemeanors. Hoffman v. People, 72 Colo. 552, 555, 212 P. 848, 851 (1923); W. LaFave & A. Scott, Jr., Criminal Law § 6 (1972) (hereinafter LaFave). At common law, all offenses other than treasons or felonies, were misdemeanors. State v. Kelly, 218 Minn. 247, 257, 15 N.W.2d 554, 564 (1944); State v. O’Shields, 163 S.C. 408, 410, 161 S.E. 692, 694 (1931); 1 C. Torda, Wharton’s Criminal Law § 20 (14th ed. 1978). Codification of the criminal law occurred in the United States to subdivide felonies and misdemeanors into classes for purposes of defining levels of punishment. See State v. Pontier, 95 Idaho 707, 715, 518 P.2d 969, 977 (1974); R. Perkins, Criminal Law § 1 (2d ed. 1969). In New Mexico felonies are subdivided into degrees. NMSA 1978, § 30-1-7 (Repl.Pamp.1984). A misdemean- or may be either a major crime or a petty offense/misdemeanor depending on the possible level of punishment. See Fimara v. Garner, 86 Conn. 434, 436, 85 A. 670, 672 (1913); LaFave at § 6. Generally, petty offenses/misdemeanors are subgroups of misdemeanors. Fimara v. Garner, 86 Conn, at 436, 85 A. at 672 (dividing misdemeanors into two grades: serious and petty misdemeanors). See State v. Berg, 237 Iowa 356, 357, 21 N.W.2d 777, 778 (1946); Commonwealth v. Cano, 389 Pa. 639, 645, 133 A.2d 800, 806, cert. denied, 355 U.S. 182, 78 S.Ct. 267, 2 L.Ed.2d 186 (1957). See also 18 U.S.C. § 1 (1982); LaFave at § 6.
I believe the legislature was aware of the statutory criminal law trend to subdivide felonies and misdemeanors into distinct categories. I further believe that the legislature did not intend to supplant this trend. Therefore, as it follows that the generic term “felony” is subdivided into degrees, it also would logically follow that the generic term “misdemeanor” in Section 31-2-8(B) includes “petty misdemeanors” as it historically always has. Thus, Section 31-2-8 of the Fresh Pursuit Act allows county sheriffs or municipal police officers to make an extraterritorial arrest for a DWI offense carrying “petty misdemeanor” penalties.