Apodaca v. State, Tax and Revenue Dept.

884 P.2d 515, 118 N.M. 624
CourtNew Mexico Court of Appeals
DecidedAugust 29, 1994
Docket15458
StatusPublished
Cited by17 cases

This text of 884 P.2d 515 (Apodaca v. State, Tax and Revenue Dept.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apodaca v. State, Tax and Revenue Dept., 884 P.2d 515, 118 N.M. 624 (N.M. Ct. App. 1994).

Opinion

OPINION

HARTZ, Judge.

Licensee appeals the revocation of his driving privileges for ninety days, pursuant to NMSA 1978, Section 66-8-lll(C) (Repl.Pamp.1987) (revocation for driving while under the influence of intoxicating liquor). A hearing officer of the state motor vehicle division sustained the revocation. The district court affirmed after Licensee petitioned the court for review. Licensee contends that certain evidence introduced at his license revocation hearing was the product of an unconstitutional stop and therefore should have been suppressed. He also argues that the hearing officer violated his right to due process by impermissibly acting as an investigator during the hearing, rather than limiting herself to an adjudicatory role. We affirm.

FACTS

At the revocation hearing the arresting officer testified that he observed Licensee driving a motorcycle on Eubank Boulevard, a multi-lane street in Albuquerque. According to the officer, Licensee was weaving from the right side of his traffic lane to the left side in a continuous pendulum-type movement. In addition, Licensee’s motorcycle was leaning from side to side during the weaving.

The officer admitted that the weaving did not cause him to suspect that Licensee was driving while intoxicated or was committing any other driving infraction. He testified that he stopped Licensee because he was concerned for Licensee’s welfare. He thought Licensee might be injured or sick, or that something else might be wrong. When he approached Licensee after the stop, the officer detected a strong odor of alcohol and noticed that Licensee’s eyes were bloodshot and his speech was slurred. At that point the officer required Licensee to perform several field-sobriety tests, all but one of which Licensee failed. Licensee was then taken to a police station where two breath-alcohol tests were administered. The tests revealed blood-alcohol levels exceeding the statutory limit.

DISCUSSION

Validity of Stop

Licensee contends that the stop that led to his arrest was unconstitutional because the officer had no reasonable suspicion that he had committed or was about to commit a crime. He points to the arresting officer’s admission that he did not suspect Licensee was driving while intoxicated until after he stopped him and to the officer’s testimony that Licensee did not commit any traffic infractions while the officer was observing him. We disagree with Licensee’s contention that suspicion of a crime is the only basis upon which an officer may properly stop a moving vehicle.

This Court recently held that a police officer may stop a vehicle for a specific, articulable safety concern, even in the absence of reasonable suspicion that a violation of law has occurred or is occurring. State v. Reynolds, 117 N.M. 23, 25, 868 P.2d 668, 670 (Ct.App.1993), cert. granted, 117 N.M. 328, 871 P.2d 984 (1994). Such a stop is justified by the officer’s role as a community caretaker. Id.; see State v. Vistuba, 251 Kan. 821, 840 P.2d 511, 514 (1992), overruled on other grounds by State v. Field, 252 Kan. 657, 847 P.2d 1280, 1286 (1993); State v. Pinkham, 565 A.2d 318, 319 (Me.1989); State v. Martinez, 260 N.J.Super. 75, 615 A.2d 279, 280-81 (Ct.App.Div.1992); State v. Marcello, 157 Vt. 657, 599 A.2d 357, 358 (1991); cf. 3 Wayne R. LaFave, Search and Seizure § 7.4(f) (2d ed. 1987) (officers may enter a vehicle without a warrant or reasonable suspicion if there is reason to believe the occupant is in distress and needs assistance). The scope of any intrusion following the stop must be limited to those actions necessary to carry out the purposes of the stop, unless, as here, reasonable suspicion or probable cause arises. See Reynolds, 117 N.M. at 26, 868 P.2d at 671.

Hence, the question before us is whether the arresting officer identified specific, articulable safety concerns that made his stop of Licensee’s motorcycle reasonable. The officer described Licensee’s peculiar driving behavior. Although such behavior may not always be the result of impaired function of the driver, it is not normal. See White v. Oklahoma Dep’t of Pub. Safety, 606 P.2d 1131, 1132 (Okla.1980) (weaving within driver’s own lane and driving unusually slowly provided reasonable suspicion to stop vehicle). Weaving like that described by the officer could well result from a driver’s attempting to retain control of his motorcycle, or to resist the effects of drowsiness, illness, or a similar problem. The fact finder could properly determine that the officer had a reasonable basis to stop Licensee to ascertain whether he needed assistance. The stop did not violate Licensee’s constitutional rights. See Reynolds. We need not decide whether weaving within one’s own lane can provide reasonable suspicion that a law is being violated. See White.

Licensee relies on State v. Burciaga, 116 N.M. 733, 866 P.2d 1200 (Ct.App.1993), where we stated that “in the absence of reasonable suspicion or exigent circumstances, an officer may [not] restrain a person in order to question him.” Id. at 736, 866 P.2d at 1203. In Burciaga, however, there was no information indicating that the driver who was stopped might be in physical difficulty or need assistance. Burciaga cited Reynolds with approval. There is no inconsistency between Burciaga and our holding that a specific, articulable safety concern justifies a vehicle stop.

Unlike the defendant in Reynolds, 117 N.M. at 26, 868 P.2d at 671, Licensee has not challenged the officer’s actions following the stop. Having determined that the stop was valid, we therefore hold that the district court properly refused to suppress evidence obtained as a result of that stop.

Violation of Due Process

In the course of the revocation hearing, a question arose as to which breath-alcohol-testing machine had been used to test the level of alcohol in Licensee’s blood. Identification of the machine was necessary to prove that it had been properly calibrated at the time Licensee was tested. The hearing officer went off the record and apparently obtained certain logs that had been submitted to the Motor Vehicle Division and were being kept in its files. Using these logs, the arresting officer was able to identify which machine was used to test Licensee and was .able to show that the machine had been properly calibrated. Licensee contends that the hearing officer’s actions violated his right to due process because she impermissibly acted as an investigator and prosecutor by obtaining the documentary evidence and admitting it at the hearing.

We decline to address Licensee’s argument because it was not preserved below. See SCRA 1986, 12-216(A) (Repl.1992) (to preserve a question for appellate review, a ruling on that issue must have been invoked below). Licensee did not object to the hearing officer’s actions at the hearing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Van Zanten
546 P.3d 163 (Idaho Supreme Court, 2024)
State v. Byrom
412 P.3d 1109 (New Mexico Court of Appeals, 2017)
State v. Sheehan
2015 NMCA 021 (New Mexico Court of Appeals, 2015)
State v. Maxwell
New Mexico Court of Appeals, 2012
State v. Jimenez
New Mexico Court of Appeals, 2011
State v. Gonzales
141 P.3d 501 (Court of Appeals of Kansas, 2006)
State v. Ryon
2005 NMSC 005 (New Mexico Supreme Court, 2005)
State v. Lackey
2005 NMCA 038 (New Mexico Court of Appeals, 2005)
State v. Joe
2003 NMCA 071 (New Mexico Court of Appeals, 2003)
State v. Lovegren
2002 MT 153 (Montana Supreme Court, 2002)
State v. Nemeth
2001 NMCA 029 (New Mexico Court of Appeals, 2001)
Wright v. State
7 S.W.3d 148 (Court of Criminal Appeals of Texas, 1999)
State v. Munoz
1998 NMCA 140 (New Mexico Court of Appeals, 1998)
Evans v. STATE, TAX. AND REV. DEPT.
922 P.2d 1212 (New Mexico Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
884 P.2d 515, 118 N.M. 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apodaca-v-state-tax-and-revenue-dept-nmctapp-1994.