This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellant, 8

v. NO. 29,671 9 JAMES MAHSEM , 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 12 Grant L. Foutz, District Judge 13 Gary K. King, Attorney General 14 Margaret McLean, Assistant Attorney General 15 Santa Fe, NM 16 for Appellant 17 Chief Public Defender 18 B. Douglas Wood III, Assi stant Appellate Defender 19 Santa Fe, NM 20 for Appellee 21 MEMORANDUM OPINION 22 VANZI, Judge. 232 The State appeals from the district court’s order dismissing this case for lack 1 of jurisdiction. We conclude that the di strict court had jurisdiction over this matter 2 since it involved a victimless crime committe d by a non-Indian on Indian land. The 3 fact that the State did not demonstrate thatthe tribal police officer had authority to 4 arrest and charge Defendant did not impact the jurisdiction of the district court. We 5 therefore reverse the district court and re mand for proceedings consistent with this 6 opinion. 7 BACKGROUND 8 The following facts are undisputed. De fendant James Mahsem, a non-Indian, 9 was pulled over by Officer Paloma, a Zuni Pueblo tribal police officer, on the Zuni 10 Pueblo for running a stop sign. OfficerPaloma suspected Defendant had been 11 drinking, and after Defendant failed field sobriety tests, Officer Paloma took him into 12 the McKinley County Sheriff’s Office. At the sheriff’s office, Officer Paloma 13 administered a breath alcohol test that s howed that Defendant’s breath alcohol level 14 was .17. 15 Defendant was charged in magistrate court with violations of NMSA 1978, 16 Section 66-8-102(E) (2008) (amended 2010), for driving under the influence of 17 intoxicating liquor or drugs (DWI), and NMSA 1978, Section 66-7-330(B) (1978), for 18 failure to stop at a stop sign. Defendant moved to dismiss the charges, and the 193 magistrate court granted that motion, ruli ng that the court had no jurisdiction because 1 the arrest occurred on tribal land. The State then appealed to the district court. 2 In the district court, Defendant again moved to dismiss the charges. Defendant 3 sought dismissal on three grounds: (1) st ate court does not have jurisdiction to 4 prosecute; (2) the stop was not lawful; and (3) Officer Paloma, a Zuni tribal police 5 officer, is not a salaried deputy of the Mc Kinley County Sheriff’s Department. The 6 district court granted the motion to dismi ss without entering findi ngs and conclusions. 7 The State timely appeals from that order. 8 DISCUSSION 9 The State contends that the district court erred when it granted Defendant’s 10 motion to dismiss because the jurisdiction to prosecute a non-Indian for DWI and 11 traffic offense committed on tribal land rests in state court. We review de novo the 12 issue of whether the district court had jurisdiction to hear this case, as it presents a 13 question of law. See Gallegos v. Pueblo of Tesuque , 2002-NMSC-012, ¶ 6, 132 N.M. 14 207, 46 P.3d 668 (“[T]he determin ation of whether jurisdiction exists is a question of 15 law which an appellate court reviews de novo.”). 16 It is clear from our case law that the district court had jurisdiction to hear this 17 matter. New Mexico state courts are courts of general jurisdiction. ACLU of N.M. v. 18 City of Albuquerque , 2008-NMSC-045, ¶ 7, 144 N.M. 471, 188 P.3d 1222. Yet, that 194 general principle is not always true for crimes committed in Indian country. See State 1 v. Harrison , 2010-NMSC-038, ¶¶ 13-14, 148 N.M. 500, 238 P.3d 869 (discussing the 2 jurisdiction of state courts over crimes co mmitted in Indian country). However, for 3 “criminal offenses committed on an Indianreservation within this state, by non4 Indians, which are not against an Indiannor involving Indian property,” the New 5 Mexico state courts have jurisdiction. State v. Warner , 71 N.M. 418, 422, 379 P.2d 6 66, 68-69 (1963); see Harrison , 2010-NMSC-038, ¶ 14 (holding that state courts have 7 jurisdiction over “victimless crimes by non -Indians” (internal quotation marks and 8 citation omitted)). We have held that DWI is a victimless crime. See Warner , 71 9 N.M. at 421-22, 379 P.2d at 68-69 (holding th at DWI is a victimless crime, and 10 therefore, the district court had jurisdiction to hear a case against a non-Indian 11 defendant for the offense of DWI in Indiancountry). Therefore, when a non-Indian 12 defendant is charged with the victimless crime of DWI occurring on Zuni Indian land, 13 the New Mexico state courts have jurisdiction over that defendant. See id. 14 Accordingly, the State can prosecute Defendant in this case in state district court. 15 It is apparent from a review of the arguments made by counsel to the district 16 court and from the briefs filed in the distri ct court and on appeal that both the district 17 court and the parties conflated the issue of the district court’s jurisdiction to hear this 18 case with the issue of the tribal officer’s authority to act as he did. At the hearing in 195 the district court, Defendant argued that his motion to dismiss was primarily based on 1 jurisdiction and contended that the State had not provided any evidence of a cross2 commission agreement, as required by NMSA 1978, Section 29-1-11 (2005), that 3 would have allowed state law to be enforced against a non -Indian on Indian tribal land 4 by a tribal police officer. See § 29-1-11(A) (providing that tribal law enforcement 5 officers may be authorized as New Mexi co peace officers to enforce state laws 6 pursuant to agreements or other requirement s as provided by the section). The State 7 rebutted Defendant’s argument by presenti ng evidence to show the many ways that 8 Officer Paloma was authorized through Sec tion 29-1-11 to enforce the laws of New 9 Mexico. This created some confusion con cerning the distinction between the officer’s 10 jurisdiction, or what we refer to here as the officer’s authority, and the court’s 11 jurisdiction to hear this type of case. As a result of this conflation of the issues, the 12 district court dismissed the charges ag ainst Defendant, appa rently agreeing with 13 Defendant’s argument that Officer Paloma’s authority, or lack thereof, under Section 14 29-1-11 prevented jurisdiction from vesting in the New Mexico state courts for 15 Defendant’s case. 16 Similarly, on appeal, both the State and Defendant argueover the issue of 17 whether Officer Paloma had lawful authorityto arrest Defendant . Defendant contends 18 that because Officer Paloma was not authorized to make the arrest, jurisdiction did not 196 properly vest in New Mexico state court. The State contends that the officer was 1 properly cross-commissioned. To the extent that the parties’ arguments suggest that 2 the jurisdiction of the state courts of Ne w Mexico is contingent upon Officer Paloma’s 3 authority, and therefore is properly addresse d in a motion to dismiss, we disagree. 4 Section 29-1-11 does not operate to confer jurisdiction on the New Mexico state 5 courts for crimes committed by non-Indians on tribal land; rather, it outlines the 6 procedures and requirements for “[a]uthori zation of tribal and pueblo police officers 7 and certain federal officers to act as New Mexico peace officers.” Section 29-1-11. 8 Thus, authorization under Section 29-1-11 affect s the propriety of an arrest or seizure, 9 but has no impact on the jurisdiction of the state courts. See Harrison , 2010-NMSC10 038, ¶¶ 13-18 (addressing the issue of the jurisdiction of the court before reaching 11 issues relating to the officer’s authority to stop and arrest); Ryder v. State , 98 N.M. 12 316, 318, 648 P.2d 774, 776 (1982) (addressing th e issue of the jurisdiction of state 13 courts prior to addressing the legality of a detention based on the officer’s authority 14 to detain a non-Indian while awaiting an offi cer with authority to issue state traffic 15 citations). Because we concludethat the issue of jurisdiction is a separate and distinct 16 question from the issue of whether Office Palo ma acted with lawful authority to make 17 the traffic stop, the district court erred in granting Defendant’s motion to dismiss. 187 Because we determine that the district court had jurisdiction to hear this case, we 1 reverse the court’s order granting dismi ssal and remand for further proceedings. 2 We remand because the record is less th an clear. Defendant in his brief in 3 support of his motion to dismiss acknowledges that Officer Paloma carried a 4 McKinley County Sheriff’s Department appointment card. In his answer brief, 5 Defendant points to the lack of evidence regarding any agreement between the State 6 Police and the Zuni Pueblo or between th e McKinley County Sheriff’s Office and the 7 Zuni Pueblo, thus indicating that even if Officer Paloma had an appointment card, an 8 agreement was also necessary. There is no authority for this proposition, nor did the 9 prosecutor provide authority for the converse proposition. Additionally, the 10 documents relied on by the prosecutor were never entered into evidence at the hearing 11 and are not in the record on appeal. A ccordingly, we cannot tell from the record 12 exactly what the district court relied on re garding Officer Paloma’s authority or lack 13 of authority. Further, we observe that De fendant did not file a motion to suppress any 14 evidence that might have been obtained by anofficer without lawful authority. As we 15 have discussed, the district court has juri sdiction to hear this case; we remand for 16 consideration of whether evidence in this case was obtained without lawful authority. 17 See State v. Martinez , 2005-NMCA-052, ¶¶ 11, 13, 137 N.M. 432, 112 P.3d 293 18 (affirming motion to suppress based on the defendant’s failure to establish error). 198 Finally, because we determine that th e district court has jurisdiction over 1 Defendant’s case and because we remand for additional fi ndings, we do not reach the 2 State’s public policy argument that Defendant should be subject to the jurisdiction of 3 the state court for offenses committed on Indian land. 4 CONCLUSION 5 For the foregoing reasons, we reverse the district court’s order dismissing the 6 criminal complaint and remand with instruc tions to reinstate the criminal complaint 7 on the docket. 8 IT IS SO ORDERED. 9

__________________________________ 10 LINDA M. VANZI, Judge 11 WE CONCUR: 12

_________________________________ 13 CELIA FOY CASTILLO, Chief Judge 14

_________________________________ 15 JAMES J. WECHSLER, Judge 16