(dissenting).
{36} The legislature decides what criminal laws to enact and the essential elements that define each crime. Crimes involving police officers, such as resisting arrest, battery on a police officer, and evading a police officer all have as an element that the police officer was in the lawful discharge of his or her duty. Rather than using the broad language “in the lawful discharge of his duties,” the legislature has more narrowly specified those duties when a defendant is charged with aggravated fleeing. Recognizing that both the suspect and the officers put the public at risk during a high speed pursuit, the legislature has specifically required officers in New Mexico to comply with the Law Enforcement Safe Pursuit Act, NMSA 1978, Sections 29-20-1 to -4 (2003) (the “Safe Pursuit Act” or “the Act”), before a defendant can be found guilty of aggravated fleeing. Because the majority has simply deleted this requirement from the statutory crime of aggravated fleeing, I respectfully dissent.
{37} While on routine patrol, a police officer attempted to pull Defendant over for a registration violation. Defendant sped away with the officer in hot pursuit for what might have been nothing more than a registration violation. Ultimately, in addition to other charges, Defendant was charged with aggravated fleeing in violation of NMSA 1978, Section 30-22-1.1(A) (2003):
Aggravated fleeing a law enforcement officer consists of a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop ... by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle in pursuit in accordance with the provisions of the Law Enforcement Safe Pursuit Act. ...
(emphasis added). The Safe Pursuit Act and the offense of aggravated fleeing were enacted in the same bill. 2003 N.M. Laws, ch. 260, §§ 1-6. The Act establishes the conditions under which an officer is authorized to engage in a high speed pursuit. Section 29-20^4(B)(1) (requiring the local policy to specify “the conditions under which a law enforcement officer may engage in a high speed pursuit and the conditions when the officer shall terminate a high speed pursuit”) (emphasis added); § 29-20-4(C)(l)-(2) (requiring that the written policy include factors for when an officer “may initiate a high speed pursuit” and when an officer “shall not initiate or continue a high speed pursuit”) (emphasis added). In other words, the Safe Pursuit Act limits the scope of the officer’s authority to engage in a high speed pursuit.
{38} Significantly, the minimum requirements of the Safe Pursuit Act include a prohibition against an officer initiating a high speed pursuit unless the officer has reasonable grounds to believe that the suspect “poses a clear and immediate threat of death or serious injury to others or who the officer has probable cause to believe poses a clear and immediate threat to the safety of others that is ongoing and that existed prior to the high speed pursuit[J” Section 29-20-4(C)(1) (emphasis added). The seriousness of the offense that initiated the high speed pursuit is critical to the analysis. See § 29-20-4(C)(3)(a). If the officer did not act in accordance with the Act, then he did not have the authority to engage in a high speed pursuit.
{39} The “pursuit in accordance” portion of aggravated fleeing is analogous to the requirement in other statutes that an officer act “in the lawful discharge of his duties.” For example, resisting, evading, or obstructing an officer consists of “resisting or abusing any judge, magistrate or peace officer in the lawful discharge of his duties.” NMSA 1978, § 30-22-l(D) (1981) (emphasis added). Similarly, the crime of aggravated assault upon a peace officer requires, as an essential element, that the State prove that the officer was acting in the lawful discharge of his or her duties. See State v. Tapia, 2000-NMCA-054, ¶ 12, 129 N.M. 209, 4 P.3d 37 (citing NMSA 1978, § 30-22-22(A) (1971)). This element is sometimes a “severely disputed factual question.” State v. Kraul, 90 N.M. 314, 317, 563 P.2d 108, 111 (Ct.App.1977) (battery upon a peace officer, NMSA 1953, § 40A-22-23).
{40} It is significant that the legislature chose not to use the phrase “in the lawful discharge of his duties”; it chose instead to use the phrase “in accordance with the ... Safe Pursuit Act.” The more specific language, coupled with the creation of the two statutes in a single bill, indicates that the officer’s authority should be evaluated with respect to the Safe Pursuit Act. This also recognizes that it is not just the suspect, but also the officer, who puts the public in danger during a high speed pursuit. See § 29-20-3(B) (recognizing “the need to balance the known offense and risk posed by a fleeing suspect against the danger to law enforcement officers and other people by initiating a high speed pursuit”) (emphasis added). It is incongruous to believe that the legislature intended compliance with the Safe Pursuit Act to be irrelevant when elevating a misdemeanor evading an officer charge to a fourth-degree felony.
{41} The language of a statute determines the essential elements of an offense. State v. Rhea, 93 N.M. 478, 480, 601 P.2d 448, 450 (Ct.App.1979). As a result, the well-reasoned opinion of the Court of Appeals is persuasive that, by using the phrase “in accordance with the provisions of the [Safe Pursuit Act],” the legislature intended compliance with the Act to be an essential element of aggravated fleeing. State v. Padilla, 2006-NMCA-107, ¶ 13, 140 N.M. 333, 142 P.3d 921. When the statute’s language is clear and unambiguous, this Court is bound by the plain meaning rule. State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994). We may depart from the plain language “only under rare and exceptional circumstances.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930). In this case, the Act clearly states that a pursuit must comply with the Safe Pursuit Act. Unless there is a clear intent otherwise, we must assume that the legislature chose its words advisedly. State v. Maestas, 2007-NMSC-001, ¶22, 140 N.M. 836, 149 P.3d 933 (citations omitted). We must do so even if we believe that the legislature did not consider all of the consequences that would result from its choice of words. Burch v. Foy, 62 N.M. 219, 223, 308 P.2d 199, 202 (1957).
{42} The majority renders meaningless and superfluous the language “in accordance with the provisions of the [Safe Pursuit Act.]” Section 30-22-l.l(A). This approach violates the rule of statutory construction that a court must construe statutes to avoid rendering a portion of the statute superfluous. State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1.
{43} Interpreting the aggravated fleeing statute to require compliance with the Safe Pursuit Act gives effect to the entire statutory scheme. As noted by the Court of Appeals, it seems reasonable that the legislature included the phrase “in pursuit in accordance with the provisions of the [Safe Pursuit Act]” to “motivate police to abide by the legislature’s promulgated rules regarding safe pursuits.” Padilla, 2006-NMCA-107, ¶ 13, 140 N.M. 333, 142 P.3d 921 (citations omitted). The Court of Appeals held that “[tjhis reading promotes the policy objectives of the Act and the aggravated fleeing statute by (1) more severely punishing a person who flees in a car in a dangerous manner, while at the same time (2)requiring that police obey the legislature’s rules relating to high speed pursuits.” Id. ¶ 14. One important rule is not engaging in a high speed pursuit when the suspect does not pose a clear and immediate threat of death or serious injury to others.
{44} The majority’s concern that proof of compliance with the Safe Pursuit Act will be unorthodox and consume greater resources is misplaced. Majority Opinion ¶ 23. Just as a jury is instructed to consider whether an officer was acting in the lawful discharge of his or her duties when a defendant is charged with evading a police officer, a jury can be instructed to consider whether a police officer initiated a high speed pursuit when having reasonable grounds to believe that the suspect “poses a clear and immediate threat of death or serious injury to others or who the officer has probable cause to believe poses a clear and immediate threat to the safety of others that is ongoing and that existed prior to the high speed pursuit[.]” See § 29 — 20—4(C)(1). Such an analysis focuses squarely on the conduct of a defendant. A jury can also be instructed to weigh the factors enumerated in the Act and decide whether “the immediate danger to the officer and the public created by the high speed pursuit exceeded] the immediate danger to the public if the occupants of the motor vehicle being pursued remain[ed] at large[.]” See § 29-2(M(C)(2)-(3). Indeed, the majority has rewritten the crime of aggravated fleeing to require a greater showing for the misdemeanor crime of evading a police officer than what is required for the felony. To prove the misdemeanor, the prosecution must prove beyond a reasonable doubt that the officer was in the lawful discharge of his or her duties, but such a showing is not required under the majority construction of aggravated fleeing. This is inconsistent with the legislature’s intent.
{45} For the foregoing reasons, I respectfully dissent.
I CONCUR: CHARLES W. DANIELS, Justice.