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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