### 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-069
Filing Date: May 10, 2011
Docket No. 30,482
STATE OF NEW MEXICO,
Plaintiff-Appellant,

v. JAVIER TREVIZO,
Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Albert S. “Pat” Murdoch, District Judge
Gary K. King, Attorney General Andrew S. Montgomery, Assistant Attorney General Santa Fe, NM
for Appellant

Chief Public Defender Lisa Bozone, Assistant Appellate Defender Albuquerque, NM
for Appellee

OPINION
WECHSLER, Judge.
{1} We consider in this appeal whether drivi ng under the influence (DWI) (first offense), in violation of NMSA 1978, Section 66-8 -102(E) (2005) (amended 2010), and reckless driving, in violation of NMSA 1978, Section 66- 8-113 (1987), have an applicable statute of limitations of one, two, or three years. We conc lude that the applicable statute of limitations for both crimes is one year. We therefore a ffirm the district court order remanding to the metropolitan court for dismissal of the charges against Defendant with prejudice.1 The Legislature’s 2009 amendment to S ection 30-1-8 added a provision providing a statute of limitations of five years for id entity theft once discovered. The amendment did not change the substance of Section 30-1-8( G), but the numbering for the statute changed. The provision is now codified as Section 30-1-8(H). We refer to the provision herein as Section 30-1-8(G).



### 2 BACKGROUND
{2} Defendant Javier Trevizo was arrested and charged with DWI (first offense), reckless driving, and other violations of the Moto r Vehicle Code, NMSA 1978, Sections 66-1-1 to -8-141 (1978, as amended through 2010), that are notrelevant to this appeal. Defendant’s arrest occurred on October 13, 2005. A criminal complaint was filed against Defendant in metropolitan court on April 12, 2007. The time between Defendant’s arrest and the filing of the criminal complaint was one day short of eighteen months.
{3} Defendant moved to dismiss, arguing that the charges were barred because the complaint was filed outside the applicable limitations period. The metropolitan court denied Defendant’s motion, concluding that a two-year statute of limitations applied and, therefore, the charges against Defendant were not time- barred. Defendant was subsequently convicted of DWI (first offense) and reckless driving. He appealed his c onvictions to the district court.
{4} The district court reversed the metropo litan court’s decision and remanded for the charges against Defendant to be dismissed withprejudice. The district court concluded that DWI (first offense) and reckless driving were petty misdemeanors and subject to a one-year statute of limitations. The State appeals.

APPLICABLE STATUTE OF LIMITATIONS
{5} This Court must determine whether a one, two, or three-year statute of limitations applies to the charges of DWI (first offens e) and reckless drivi ng. NMSA 1978, Section 30- 1-8 (2005) (amended 2009) of the Criminal C ode provides for the following relevant time limitations for commencing prosecution:
C. for a misdemeanor, within two years from the time the crime was committed;
D. for a petty misdemeanor, within one year from the time the crime was committed;

. . . . G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed[.] 12 At the time Robinson was decided, the three-year statute of limitations for crimes outside of the Criminal Code was codified as Section 30-1-8(F). We note that the language in Section 30-1-8(G) is the same as when the Court decided Robinson . To avoid confusion, we continue to refer to this provision as Section 30-1-8(G) in the text of the opinion.



### 3 {6} The State contends that the Legislature ha s designated all violations of the Motor Vehicle Code to be misdemeanors unless othe rwise designated as a felony and, thus, a twoyear statute of limitations applies. Alternativ ely, the State argues that because the crimes of DWI and reckless driving are found outside of th e Criminal Code, the three-year statute of limitations provided for in Subsection (G) applie s. Defendant contends that both DWI (first offense) and reckless drivi ng are petty misdemeanors pursuant to NMSA 1978, Section 30-1- 6(C) (1963) and, thus, the limitations period is only one year.
{7} The limitations provisions relied on by the parties are statutory in nature. “Statutory interpretation is an issue of law, which we review de novo.” State v. Duhon , 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature.” State v. Torres , 2006- NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect to the plain meaning of the words of [the] st atute, unless this leads to an absurd or unreasonable result.” State v. Marshall , 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801. We therefore engage in a de novo review of “whether a particular statute of limitations applies.” Jaramillo v. Gonzales , 2002-NMCA-072, ¶ 8, 132 N.M. 459, 50 P.3d 554.
{8} In Robinson v. Short , 93 N.M. 610, 603 P.2d 720 ( 1979), our Supreme Court considered the applicability of the three-year statute of limitations for crimes not contained in the Criminal Code. The Court determined that the crime of falsely obtaining unemployment benefits, contrary to NMSA 1978, Section 51-1-38 (1993) , was subject to a one-year statute of limitations, not a three-year statute of limitations, even though it was “uncontroverted that the crimes with whic h [the defendant was] charged [were] not contained in the Criminal Code.” See Robinson , 93 N.M. at 611, 603 P.2d at 721. In making this determination, the Court looked to Section 30-1-8(G) 2and concluded that because the sentence authorized for a violation of Section 51-1-38 was consistent with characterizing the crime as a petty misdemeanor, a limitation was otherwise provided for, thus, making the three-year statute of limitations contai ned in Section 30-1-8(G) inapplicable. Robinson , 93 N.M. at 611, 603 P.3d at 721. The Court determin ed that, because the crime charged carried “an authorized penalty of imprisonment for not l onger than thirty days, or a fine of not over one hundred dollars or both,” and Section 51- 1-38 did not specifically delineate the degree of crime, the definition for petty misdemeanors provided by Section 30-1-6(C) should control. Robinson , 93 N.M. at 611, 603 P.2d at 721; see§ 30-1-6(C) (providing that “[a] crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or le ss is authorized”). The Court therefore held that the one-year statute of limitations for petty misdemeanors contained in Section 30-1- 8(D) should apply. See Robinson , 93 N.M. at 611-12, 603 P.2d at 721-22.

### 4 {9} Implicit in our Supreme Court’s treatment of Section 30-1-8(G) was its decision to read the provisions conjunctively. Thus, our Supreme Court determined that the fact that “the crimes with which [the defendant was] charged [were] not contained in the Criminal Code” was insufficient to make the three-year statute of limitations apply. See Robinson , 93 N.M. at 611, 603 P.2d at 721 (“It is uncontroverted that the crimes with which [the defendant was] charged [were] not contained in the Criminal Code. What we concern ourselves with is whether a limitation is ‘otherwi se provided for.’”). To the extent the State argues that the three-year statute of limitations applies because the crimes charged are contained in the Motor Vehicle Code and not the Criminal Code, we are bound by our Supreme Court’s interpretation of Section 30-1-8(G) in Robinson. See State v. Travarez , 99 N.M. 309, 311, 657 P.2d 636, 638 (Ct. App. 1983) (sta ting that the Court of Appeals must follow applicable precedents of the Supreme Court).
{10} Furthermore, to the extent the State contends that Robinson is no longer good law, we disagree. The State points out that, following the Supreme Court’s decision in Robinson , the Legislature amended Section 30-1-8 and in cluded a section providing that violations of Section 51-1-38 are subject to a three-year statute of limitations. We agree that this amendment indicated a legislativ e intent contrary to what our Supreme Court had determined to have been the legislative intent in Robinson

. See Robinson , 93 N.M. at 612, 603 P.2d at 722 (“To interpret the statutes [to apply a three-year statute of limitations] would result in an inconsistency we do not believe the Legisl ature intended. Crimes with an authorized maximum penalty of less than six months whic h do not expressly state the degree of the crime would have the same length of limitation as a third or fourth degree felony.”). However, although with the amendment the Legislature provided a specific statute of limitation for violations of Section 51-1-38, it c hose not to alter the language in Section 30- 1-8(G) interpreted by our Supreme Court. As a result, the Legislature’s subsequent amendment of Section 30-1-8 did not abrogate our Supreme Court’s reading of Section 30-1- 8(G) inRobinson

. {11} Moreover, to interpret Section 30-1-8(G) as the State suggests would result in a three-year statute of limitations for all violations of the Motor Vehicle Code. A three-year statute of limitations would therefore apply not only to DWI (first offense) and reckless driving, but to speeding violations, parking violations, failure to signal, following too closely, and other traffic violations. SeeNMSA 1978, § 66-7-301 (2002); NMSA 1978, § 66-7-352 (1978); NMSA 1978, § 66-7-325 (1978) ; NMSA 1978, § 66-7-318 (1978). Thus, crimes generally subject to penalty assessments in the Motor Vehicle Code would have a statute of limitations longer than all crimes other than felonies. See generally § 30-1-8(C), (D). We do not believe that the Legislature intended such a result. For these reasons, we reject the State’s argument that a three-year statute of limitations should apply to all violations of the Motor Vehicle Code.
{12} We now turn to the State’s argument that a two-year statute of limitations should apply to DWI (first offense) and reckless dr iving. The State relies on Section 30-1-6, which provides:

### 5 B. A crime is a misdemeanor if it is so designated by law or if upon conviction thereof a sentence of im prisonment in excess of six months but less than one year is authorized. C. A crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a senten ce of imprisonment for six months or less is authorized.
{13} The State contends that Section 66-8-7(A) designates all violations of the Motor Vehicle Code as misdemeanors “unless the viol ation is declared a felony.” Section 66-8- 7(A) provides that “[i]t is a misdemeanor fo r any person to violate any provision of the Motor Vehicle Code [Section 66-1-1] unless the violation is declared a felony.” The State argues that, in selecting between these two means of defining a misdemeanor or petty misdemeanor, the Legislature’s designation of violations of the Motor Vehicle Code as misdemeanors takes precedence over the authorized punishment for the violation. The State relies on cases holding that a statute must not be construed to render any part of it surplusage. See State v. Rivera , 2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939 (“We are generally unwilling to construe one provision of a statute in a manner that would make other provisions null or superfluous.”). We understand the State to argue that, because all criminal violations will have a specific punishme nt associated with them, if this Court does not give the legislative designation priority, that provision of the statute will be rendered superfluous. The State therefore asserts that th e Legislature’s classifi cation of all violations of the Motor Vehicle Code as misdemeanors, unless specifically designated as felonies, results in the application of a two-year statute of limitations.
{14} We disagree with the State that, if this Court were to rely on the Legislature’s designation of violations of the Motor Vehicle Code as “misdemeanors” in Section 66-8- 7(A), our inquiry would be complete. Misdemeanor is defined as “[a] crime that is less serious than a felony and is usually punishable by fine, pe nalty, forfeiture, or confinement . . . in a place other than prison.” Black’s Law Dictionary1089 (9th ed. 2009) (emphasis added). Based on this definition, a misdemeanor would encompass any crime that was not a felony, including petty misdemeanors. We r ead the Legislature’s use of “misdemeanor” in Section 66-8-7 as merely making this di stinction and not as precluding treatment of violations of the Motor Vehicle Code as petty misdemeanors. Cf. Incorporated Cnty. of Los Alamos v. Johnson , 108 N.M. 633, 636, 776 P.2d 1252, 1255 (1989) (Baca, J., specially concurring) (“‘[M]isdemeanor’ . . . includes ‘p etty misdemeanors’ as it historically always has.”).
{15} Section 66-8-7(B) provides further support fo r our interpretation of these provisions:
Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for viol ation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both.
The Legislature has therefore set the penalty fo r violations of the Motor Vehicle Code to be consistent with the classification of petty misdemeanors found in the Criminal Code. See

### 6 § 30-1-6(C) (“A crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or less is authorized.”).
{16} To the extent the State argues that there are “persuasive policy considerations based on which the Legislature could rationally treat the particular offenses of DWI and reckless driving as more serious than petty misdemeanor s[,]” we agree. However, it does not appear that the Legislature has chosen to do so with respect to DWI (first offense) and reckless driving. Instead, the punishment designated by the Legislature for reckless driving and DWI (first offense) indicates the legislative inte nt to treat these crimes as petty misdemeanors. See § 66-8-113(B); § 66-8-102(E); cf. Lewis v. United States , 518 U.S. 322, 326 (1996) (stating that the maximum penalty attached to an offense “is considered the most relevant with which to assess the character of an offens e, because it reveals the legislature’s judgment about the offense’s severity”); Frank v. United States , 395 U.S. 147, 148 (1969) (“The most relevant indication of the serious ness of an offense is the seve rity of the penalty authorized for its commission.”).
{17} The State also relies on City of Santa Fe v. Martinez , 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275. In Martinez , our Supreme Court recognized the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences when DWI is committed. Id. ¶ 13. The State argues that the sameinterests support a limitations period longer than that of a petty misdemeanor. The mi sdemeanor arrest rule has its origins in the common law. State v. Ochoa , 2008-NMSC-023, ¶ 11, 143 N.M. 749, 182 P.3d 130. As our Supreme Court explained,
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 [(alteration in original) (internal quotation marks and citation omitted)]. Although the continued viability of the misdemeanor arrest rule has been questioned generally, see Cave v. Cooley , 48 N.M. 478, 483-84, 152 P.2d 886, 890 (1944), we conclude that DWI investigations, in particular, fall outside the original purpose of the rule.
{18} The case before us, involves a criminal statute of limitations imposed by the Legislature. Criminal statutes of limitation “are to be liberally construed in favor of a defendant because their purpose ‘is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the [L]egislature has decided to punish by criminal sanctions.’” State v. Kerby , 2007-NMSC-014, ¶ 13, 141 N.M. 413, 156 P.3d 704 (quoting Toussie v. United States , 397 U.S. 112, 114 (1970)). Because the purposes of the misdemeanor arrest rule and criminal statutes of limitations are distinct, we decline the State’s invitation to use the reasoning in Martinez to expand the limitation period set by the Legislature.
{19} If the State is correct and the Legislature intended to treat these crimes more seriously by providing for a longer limitations period, the Legislature may explicitly do so by providing a specific limitation period for these crimes in Section 30-1-8 as it did following our Supreme Court’s decision in Robinson . However, based on the current

### 7 legislation, we conclude that the Legislature intended for these crimes to be treated as petty misdemeanors. We further conclude that, pur suant to Section 30-1-8(D), a one-year statute of limitations applies.

CONCLUSION
{20} We affirm the district court and remand to the metropolitan court to dismiss the charges with prejudice.
{21} IT IS SO ORDERED.

__________________________ ____________ JAMES J. WECHSLER, Judge

WE CONCUR:

______________________________________ CELIA FOY CASTILLO, Chief Judge

______________________________________ LINDA M. VANZI, Judge
Topic Index for State v. Trevizo , Docket No. 30,482

AE APPEAL AND ERROR AE-SR Standard of Review AE-RM Remand

CU COURTS CU-ME Metropolitan Court

CL CRIMINAL LAW CL-DG Driving While Intoxicated CL-RD Reckless Driving

CA CRIMINAL PROCEDURE CA-DC Dismissal of Charges CA-SL Statute of Limitations

ST STATUTES ST-IP Interpretation ST-LI Legislative Intent ST-RC Rules of Construction