By on June 29, 2010

The New Mexico Supreme Court on Thursday expanded the ability of police to jail suspects for driving under the influence of alcohol (DUI) by allowing arrests to be made solely based on third-party tips. The ruling was handed down two weeks after the same court had relaxed DUI arrest rules so that motorists sleeping off a night of drinking in their automobiles would not be hit with the same penalty as if they had driven away (read decision).

On December 22, 2007, Marcos Martinez was taken into custody for drunk driving in the city of Santa Fe not because an officer saw him commit a crime, but because someone who works at a mall called in a tip. Santa Fe Police Sergeant Troy Baker responded to the call which alleged that a man was staggering in the DeVargas Mall parking lot, eventually driving away in a van. The caller had provided a license plate, so Baker went to the van owner’s home to investigate. Inside the home, Martinez was clearly drunk and unlocked the door when Baker knocked. Baker entered and arrested Martinez.

A district court found the arrest unlawful under the common law “misdemeanor arrest rule” that states a suspect may only be arrested for a misdemeanor that is committed in an officer’s presence. The rule does not apply to felonies.

“Under the common law rules for warrantless arrests, there is an inherent balance between public safety and a suspect’s constitutional rights,” Patricio M. Serna explained in the unanimous decision. “Because felonies are a greater concern with respect to public safety, officers are granted more latitude when conducting investigations of such crimes. 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.”

The court then decided that although the legislature had designated first-time DUI to be a misdemeanor and not a felony, it would rescind the common law tradition and create a new category — a misdemeanor that is not a “minor crime.”

“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,” Serna wrote. “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.”

The court added that it was important to avoid requiring a warrant before attempting to arrest a suspect not seen driving because that individual might later drive a car.

“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,” Serna wrote. “Such a risk is untenable given the strong public interest in deterring the crime of DWI…. Instead, the warrantless arrest of one suspected of committing DWI is valid when supported by both probable cause and exigent circumstances.”

A copy of the decision is available in a 30k PDF file at the source link below.

Source: PDF File New Mexico v. Martinez (Supreme Court, State of New Mexico, 6/24/2010)


Get the latest TTAC e-Newsletter!


17 Comments on “New Mexico Supreme Court Upholds Phone Tip DUI Conviction...”

  • avatar

    Yeah we’ve had that “phone tip line” for people driving erratically for over a year now. Everytime I have to swerve to avoid trash in the road or inadvertantly cut someone off, I wonder if someone is going to call me in.

  • avatar

    So the trend seems to be heading toward this: if you appear to be under the influence and have a motor vehicle key in your possession, you can be arrested regardless of where your car is located.

  • avatar

    If the person is clearly drunk when the police follow-up on a tip, I don’t see the problem.

    I’ve had the misfortune of being caught behind someone who was either drunk or dozing off while behind the wheel. it’s a very unnerving experience. It was during morning rush-hour down a winding back road. The women driving kept crossing into the opposing lane and driving across the edge of front lawns. The road had several steep drop-offs where she could have easily flew off into the trees. I called the police and gave them here licence plate#. After about 5 miles she finally turned off onto a side street.

    I suspect nothing happened to the woman as a result of my phone call.

  • avatar

    To understand the scope of the Court’s holding, you really need to read the opinion. In the opinion, the Court held that the crime of driving while intoxicated (DWI) should be treated as a felony for the purposes of warrantless arrests. A police officer cannot make a warrantless arrest of a person suspected of committing a felony unless the officer has probable cause.

    So let’s say, for example, you’re sober and driving down the road when you swerve erratically to avoid something on the road. A person, believing you’re drunk, writes down your license plate number and calls the police. A police officer pulls you over and notices you don’t have any of the symptoms normally associated with being under the influence. Accordingly, the police officer would have no probable cause to arrest you and, theoretically at least, should let you on your merry way.

    • 0 avatar
      Shane Rimmer

      However, let’s assume that you are on your way home from a tough day at work when you swerved to avoid that trash in the road. After you get home, you turn on the game and down a few beers to forget about the day. Meanwhile, a cop, acting on a phoned in tip, is on his way to your house.

      When he gets there, you are legally intoxicated and arrested for DWI.

    • 0 avatar

      Oh, I’m not afraid that I or anyone else will be wrongly arrested. I would just hate dealing with the PIA of proving I’m not. In college a good friend of mine was going across an empty bridge late at night in Cleveland, OH. The bridge was riddled with potholes (Swiss cheese-like) and he was meandering (although mostly staying in his lane) to avoid them. He was seen by one of Cleveland’s finest who pulled him over about halfway across the bridge.

      Cop spent 15 min grilling him, putting him through the paces, and going over the car with a fine toothed comb (as fine as he could do with a flashlight in the middle of the night) even looking for cracked headlight or SOMETHING he could give him a ticket for. My friend offered his explanation of the bridge being empty and trying to miss the potholes. Eventually an extremely disapointed officer sent him on his way. My friend waited for the officer to leave first and watched the cop car weave it’s way down the rest of the bridge, swerving to avoid the potholes.

    • 0 avatar

      I have to agree with Shane, this completely ignores the presumption of innocence. There’s no way for the cop to prove you were drunk while driving if he arrests you at home. I’m all for strict DUI laws, but this goes too far.

  • avatar

    “So the trend seems to be heading toward this: if you appear to be under the influence and have a motor vehicle key in your possession, you can be arrested regardless of where your car is located.”

    I disagree. The Court essentially held that since DWI crimes are to be treated as felonies, a police officer needs to have probable cause before he can make a warrantless arrest. In your example, let’s say you’re staggering out of a bar, pissed drunk, and your car keys are in your pocket. Let’s also say your car is nowhere near you, and in fact is parked in your garage. A police officer would need probable cause to believe you’re drunk AND in control of a motor vehicle before he can arrest you for DWI. Obviously, you’re not in control of a car, and the officer cannot arrest you for DWI.

    There’s nothing in the Court’s opinion even remotely suggesting that a person can be arrested (or convicted) of a DWI if they’re not in control of a car at the time he/she was drunk.

    • 0 avatar

      You ignore the twisted logic of the court’s “let’s treat it like a felony for the purposes of arrest” even though it’s not a felony.

      If first time suspected DUI is so dangerous, then the legislative body should make it a felony.

      The trend is toward being arrested while carrying a key: It used to be active driving while drunk was a DUI (hence the ‘D’) then it was even being in or near close physical proximity to your car.
      Then allowed BAC levels were reduced.

      In your example, the cop could have probable cause to believe you parked near the bar as that is a common trait of bar customer and you possess the key. Plus you are drunk and not responding logically.

      “There’s nothing in the Court’s opinion even remotely suggesting that a person can be arrested (or convicted) of a DWI if they’re not in control of a car at the time he/she was drunk.”
      That’s exactly what the cop did when they arrested the guy in his home…he was not in control of car save for the phone call from some person unknown.

  • avatar

    “However, let’s assume that you are on your way home from a tough day at work when you swerved to avoid that trash in the road. After you get home, you turn on the game and down a few beers to forget about the day. Meanwhile, a cop, acting on a phoned in tip, is on his way to your house.

    When he gets there, you are legally intoxicated and arrested for DWI.”

    Yes, that’s certainly a possibility. But being arrested is not the same as being convicted. That’s why trials in the U.S. give the defendant the opportunity to present a defense.

    • 0 avatar

      Obviously when the cop arrives at the door have a bottle of whiskey present when confronted, knock back a big pull as you open the door, offer a tug to the cop and ask “whats the problem”

    • 0 avatar

      I sat on a jury in a similar case in California, drunk after driving. We found him not guilty and I dont think the judge was too happy about the waste of time and expense of the trial, not to mention what the arrested and charged, but not convicted, party had to endure.

  • avatar
    John Horner

    I think the court got it right. First, remember that “common law” means “tradition”, as in it isn’t an actual law written down and passed by a legislative body.

    Driving drunk means putting the life and limb of every person the driver happens to come in contact with at risk. The arrest was completely appropriate. No constitutional rights violations are at issue here.

  • avatar

    Ah yes. We all cheerfully acknowledge another little piece of thread being cut off the clothing of liberty.

    I sense that people are unconcerned about this ruling because they don’t believe it will have any negative effect on them but they hope it will have an effect on a group of people there is widespread disdain for on this website, the drunk driver.

    I see this as yet another tool for LEO’s to go on fishing expeditions. At the end of the day the number of crimes, accidents, whatever that will be prevented by this ruling will be minuscule to nonexistent. The number of citizens who will be detained, harassed, wrongly accused of crimes… a much bigger number I’m sure.

    Just for the record, I don’t drink. I obviously don’t drive and drink. And yes, I’ve had the prerequisite car accident involving a drunk driver that probably wouldn’t have happened if he had been sober. And I still believe that warrant-less searches, sobriety checkpoints and draconian laws all in the name of preventing drunk driving are getting a little out of hand.

  • avatar

    Awesome. So now if some neighbor decides to hate me, all they have to do is wait for me to walk into the house with a case of beer and a friend or two, give it an hour, and then make a call saying they saw me drive my car piss-drunk. The cop comes over, and if I managed to finish 3 beers by then, I’m busted.

    Villager: … Well, we did do the nose.
    Sir Bedevere: The nose?
    Villager: And the hat. But she is a witch!
    Villagers: A witch, a witch, burn her!
    Sir Bedevere: Did you dress her up like this?
    Villager: … Um … Yes … no … a bit … yes… she has got a wart!

    You might think this is all funny and that we don’t do this kind of stuff… anymore. Only we keep hunting “witches” over, and over, and over. History teaches us that it doesn’t teach us anything.

    • 0 avatar

      Yes, we call all imagine scenarios where, under the New Mexico Supreme Court’s new rule, a person might be mistakenly arrested for DWI. But seriously, how realistic are these scenarios? Does anyone really think it’s common for somebody to falsely tell the police that you’ve been drinking and driving, and then for the police to come to your home JUST as your getting drunk at home???

      I think a far more typical scenario is this: a 911 dispatcher receives several calls from frantic witnesses reporting that a driver has been seen driving erratically for miles. The witnesses give the 911 dispatcher the driver’s license plate number and the make and model of the car. The police arrive at the driver’s home, where they find a car matching the same make and model parked on the driveway. The hood is warm. The police then speak with the car’s owner, who is obviously drunk out of his mind.

      Now, let’s say the owner denies he had been driving, and instead claims that he drank all his beer at home. Now, under the old rule, the police would not be able to arrest him for DWI because the driving was not done in the presence of the police officers. Under the new rule, the police would be able to arrest him.

      Now, whether there’s enough evidence to CONVICT the owner of DWI is another matter entirely. But doesn’t it make sense that, in light of the eyewitnesses’ reports, the police should be able to at least ARREST the guy, notwithstanding the fact that the actual driving did not occur in the police officers’ presence?

  • avatar

    Not common, but it did happen. I was on the jury. The cost of merely a DUI arrest, and defense and court costs, to the accused as well as the State are reason enough. Do impound fees, bail and attorney costs get refunded if you win?

Back to TopLeave a Reply

You must be logged in to post a comment.

Recent Comments

  • DeadWeight: Have you been or do you feel replaced/displaced? Will the South rise again?
  • Arthur Dailey: In Canada Audis start in the low $30k range and except for the R8 top out around $140k. Bentleys start...
  • SCE to AUX: They’re durable.
  • ToddAtlasF1: I guess the market for large luxurious Tata sedans dressed in English heritage badges is large enough to...
  • squelchy451: A lowly E90 is all I’d ever want in a vehicle–RWD, inline 6, naturally aspirated, excellent...

New Car Research

Get a Free Dealer Quote


  • Contributors

  • Matthew Guy, Canada
  • Ronnie Schreiber, United States
  • Bozi Tatarevic, United States
  • Chris Tonn, United States
  • Corey Lewis, United States
  • Mark Baruth, United States
  • Moderators

  • Adam Tonge, United States
  • Corey Lewis, United States