State v. Montano , 423 P.3d 1 ( 2018 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: March 29, 2018
4 NO. A-1-CA-35275
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 ROY MONTANO,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 Fred T. Van Soelen, District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 John J. Woykovsky, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Attorney & Counselor at Law, P.A.
18 Eric D. Dixon
19 Portales, NM
20 for Appellant
1 OPINION
2 BOHNHOFF, Judge.
3 {1} Roy Montano (Defendant) was convicted of aggravated fleeing from a law
4 enforcement officer in violation of NMSA 1978, Section 30-22-1.1(A) (2003).
5 Defendant contends on appeal, as he argued below, that the Curry County Sheriff’s
6 Office deputy whose signals to stop Defendant refused to obey was neither
7 “uniformed” nor in “an appropriately marked law enforcement vehicle” as required
8 by the statute. See id. We conclude that, while the deputy’s vehicle complied with the
9 statutory requirement, the clothes that he was wearing did not constitute a uniform.
10 We therefore reverse Defendant’s conviction.
11 BACKGROUND
12 {2} On September 4, 2013, Deputy Glenn Russ with the Curry County Sheriff’s
13 Office was working as an “investigator.” He was wearing the clothes that
14 investigators were required to wear: “a dress shirt with tie, dress slacks, and dress
15 shoes.” His badge was displayed on the breast pocket of his shirt. He was driving a
16 Ford Expedition that had no decals, striping, insignia, or lettering on the front, back,
17 or sides of the vehicle. However, the vehicle had a government license plate, wigwag
18 headlights, red and blue flashing lights mounted on the front grill and the top of the
19 rear window, flashing brake lights, and a siren.
1 {3} Around noon that day, while Deputy Russ was driving within the Clovis, New
2 Mexico city limits, he observed Defendant enter a vehicle and begin driving. Russ
3 initially thought Defendant was someone else whom Russ believed had an
4 outstanding warrant. Russ approached Defendant’s vehicle from behind and checked
5 the license plate. Russ determined that the vehicle was registered to Defendant, not
6 the other person, but that the registration for Defendant’s vehicle had expired. At that
7 point Russ attempted to stop Defendant for the registration infraction by “utilizing the
8 [red and blue flashing] lights” on his vehicle. Defendant then made a few turns and
9 ran a stop sign, at which point Russ activated his vehicle’s siren. Defendant continued
10 driving through a residential neighborhood at speeds that exceeded the posted speed
11 limits and failed to stop at additional stop signs and intersections. Defendant came to
12 a stop after his vehicle jumped a curb and drove onto an adjacent easement after he
13 attempted to turn by braking and sliding through an intersection. Russ then
14 approached the vehicle, removed Defendant, placed him on the ground, and
15 handcuffed him. The pursuit lasted “a couple of minutes” in total. Undersheriff
16 Michael Reeves, also of the Curry County Sheriff’s Office, arrived at the scene after
17 Defendant was already in custody.
18 {4} Defendant was charged with aggravated fleeing, contrary to Section 30-22-
19 1.1(A). Deputy Russ and Undersheriff Reeves both testified at Defendant’s bench
2
1 trial. During the trial, the district court took judicial notice that the vehicle Russ drove
2 “was not a marked vehicle.” The court denied Defendant’s motion for directed verdict
3 based on his uniform and “appropriately marked vehicle” arguments. The court
4 determined that displaying a badge was enough to be in uniform; the vehicle was
5 appropriately marked because motorists know they have to pull over and stop when
6 they see emergency lights flash. The court found Defendant guilty of aggravated
7 fleeing and imposed the maximum sentence of eighteen months imprisonment.
8 DISCUSSION
9 {5} In 2003, the Legislature enacted the Law Enforcement Safe Pursuit Act
10 (LESPA), 2003 N.M. Laws, ch. 260, §§ 1-4. LESPA, which is codified at NMSA
11 1978, Sections 29-20-1 to -4 (2003), mandates the development and implementation
12 of law enforcement agency policies and training to reduce the risk that uninvolved
13 motorists and bystanders will be killed or injured by vehicles involved in high-speed
14 pursuits conducted by law enforcement personnel. However, along with LESPA’s
15 establishment of standards for the conduct of high-speed pursuits, Section 5(A) of
16 2003 N.M. Laws, ch. 260, codified at Section 30-22-1.1(A), established the crime of
17 aggravated fleeing from a law enforcement officer:
18 Aggravated fleeing [from] a law enforcement officer consists of a person
19 willfully and carelessly driving his vehicle in a manner that endangers
20 the life of another person after being given a visual or audible signal to
21 stop, whether by hand, voice, emergency light, flashing light, siren or
3
1 other signal, by a uniformed law enforcement officer in an appropriately
2 marked law enforcement vehicle in pursuit in accordance with the
3 provisions of the [LESPA].
4 Section 30-22-1.1(B) provides that aggravated fleeing is a fourth degree felony.
5 {6} Section 30-22-1.1(A) presumably is patterned after NMSA 1978, Section 30-
6 22-1(C) (1981) . Section 30-22-1, which was first enacted in 1963, established the
7 misdemeanor crime of resisting, evading, or obstructing an officer. As amended, see
8 1981 N.M. Laws, ch. 248, § 1(C), the crime is committed by, among other actions,
9 “willfully refusing to bring a vehicle to a stop when given a visual or audible signal
10 to stop, whether by hand, voice, emergency light, flashing light, siren or other signal,
11 by a uniformed officer in an appropriately marked police vehicle[.]” Section 30-22-
12 1(C).
13 {7} Section 30-22-1(C) in turn appears to be patterned after a provision, Section
14 11-911(a), of the Uniform Vehicle Code that was added in 1968:
15 Any driver of a motor vehicle who willfully fails or refuses to bring his
16 or her vehicle to a stop, or who otherwise flees or attempts to elude a
17 pursuing police vehicle when given a visual or audible signal to bring
18 the vehicle to a stop, shall be guilty of a misdemeanor. The signal given
19 by the police officer may be by hand, voice, emergency light or siren.
20 The officer giving such signal shall be in uniform, prominently
21 displaying the officer’s badge of office, and the officer’s vehicle shall
22 be appropriately marked showing it to be an official police vehicle.
23 Nat’l Comm. on Unif. Traffic Laws & Ordinances, Uniform Vehicle Code & Model
24 Traffic Ordinance § 11-911(a) (2000). A number of states have laws similar to
4
1 Section 30-22-1(C) and Section 30-22-1.1(A), see, e.g., Ga. Code Ann. § 40-6-395(a)
2 (2012); N.D. Cent. Code § 39-10-71 (2011), although we are aware of none with
3 identical language.
4 I. UNIFORMED LAW ENFORCEMENT OFFICER
5 {8} We first address whether Deputy Russ was “uniformed”, i.e., wearing a
6 uniform on September 4, 2013, within the meaning of Section 30-22-1.1(A).
7 Defendant generally argues that the street clothes Russ was wearing that day do not
8 constitute a uniform. The State maintains that Russ’s badge alone was a uniform.
9 Alternatively, the State argues, because he was required to wear dress shoes, pants,
10 and shirt with tie, those items combined with his badge, handcuffs, and firearm
11 together constituted a uniform.
12 {9} “When an appeal presents an issue of statutory construction, our review is de
13 novo.” State v. Tafoya, 2010-NMSC-019, ¶ 9, 148 N.M. 391, 237 P.3d 693.
14 Challenges to the sufficiency of the evidence supporting a conviction that raise an
15 issue of statutory interpretation are subject to the same de novo review standard. See
16 State v. Erwin, 2016-NMCA-032, ¶ 5, 367 P.3d 905, cert. denied, 2016-NMCERT-
17 ___ (No. S-1-SC-35753, Mar. 8, 2016).
18 A. The Plain Meaning of “Uniform”
19 {10} Section 30-22-1.1(A) does not define “uniformed.” Therefore, we interpret its
5
1 meaning based on rules of statutory construction. “Our primary goal when
2 interpreting statutory language is to give effect to the intent of the [L]egislature.”
3 State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. A court begins
4 the search for legislative intent of a statute “by looking first to the words chosen by
5 the Legislature and the plain meaning of the Legislature’s language.” State v. Davis,
6 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation marks and
7 citation omitted).
8 {11} Webster’s Third New International Dictionary 2498 (Unabridged ed. 1986)
9 defines “uniform” as “dress of a distinctive design or fashion adopted by or
10 prescribed for members of a particular group . . . and serving as a means of
11 identification[.]” (Emphases added.); accord Uniform, New Oxford American
12 Dictionary 1890 (3d ed. 2010) (defining a uniform as “the distinctive clothing worn
13 by members of the same organization or body”). “Dress,” in turn, is defined as
14 “utilitarian or ornamental covering for the human body: as . . . clothing and
15 accessories suitable to a specific purpose or occasion[.]” Dress, Webster’s Third New
16 Int’l Dictionary 689 (Unabridged ed. 1986) (emphasis added).
17 {12} This definition of uniform is significant in two respects. First, a uniform
18 consists of clothing, as distinguished from, for example, only a law enforcement
19 officer’s badge. Stated another way, equipment alone, without distinctive clothing,
6
1 is not “dress of a distinctive design or fashion[,]” i.e., it is not a uniform. Cf.
2 2.110.3.8(B)(2) NMAC (distinguishing between “holsters, . . . uniforms, belts, badges
3 and related apparatus” as items eligible for purchase with funds from the Law
4 Enforcement Protection Fund Act, NMSA 1978, §§ 29-13-1 to -9 (1993, as amended
5 through 2017)). Second, a uniform is clothing that distinguishes the wearer from the
6 general public, i.e., identifies him or her as a member of a particular group.
7 {13} Deputy Russ’s clothing was not of a distinctive design or fashion and did not
8 serve to identify him as a law enforcement officer. On the contrary, the purpose of his
9 outfit was, if anything, to allow him to blend in with the general public. For purposes
10 of applying the plain meaning of uniform, it matters not that as an investigator Russ
11 was required to wear civilian clothes: they did not distinguish him from the general
12 public any more than the dress clothing that lawyers generally must wear in court
13 constitutes a uniform that distinguishes them from persons who work in other
14 occupations where dress clothes are the norm. Further, Russ’s badge was not an
15 article of clothing, even though it, too, may be a separate indicia of law enforcement
16 officer status. Similarly, handcuffs and a holstered firearm may identify the person
17 wearing them as a law enforcement officer, but they do not amount to clothing. Thus,
18 absent some basis for not applying the plain meaning rule, which we now consider,
19 Deputy Russ was not “uniformed” as that term is used in Section 30-22-1.1(A).
7
1 B. Other Statutes
2 {14} In addition to looking to its plain meaning, in construing a statute, a court will
3 consider related statutes. Statutory language “may not be considered in a vacuum, but
4 must be considered in reference to the statute as a whole and in reference to statutes
5 dealing with the same general subject matter.” State v. Rivera, 2004-NMSC-001,
6 ¶ 13, 134 N.M. 768, 82 P.3d 939 (internal quotation marks and citation omitted).
7 “[W]henever possible, [the appellate courts] must read different legislative
8 enactments as harmonious instead of as contradicting one another.” Id. (omission,
9 internal quotation marks, and citation omitted). In addition to looking at the statutory
10 language, “we also consider the history and background of the statute [and w]e
11 examine the overall structure of the statute and its function in the comprehensive
12 legislative scheme.” State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d
13 1022 (internal quotation marks and citations omitted).
14 {15} We discern no inconsistency between Section 30-22-1.1(A), construed in
15 accordance with the plain meaning of “uniform,” and Section 30-22-1(C) quoted
16 above, as well as several other New Mexico statutes that address law enforcement
17 officers’ uniforms and authority to stop motorists. On the contrary, these statutes are
18 harmonious.
19 {16} First, NMSA 1978, Section 29-2-13 (1989), and NMSA 1978, Section 29-2-14
8
1 (2015), address the uniforms and badges of the New Mexico State Police. Section 29-
2 2-13 provides that “[a] suitable and distinctive uniform shall be prescribed by the
3 secretary [of public safety]. The secretary shall provide and issue to each
4 commissioned officer a uniform and an appropriate badge. . . . The prescribed
5 uniform and badge shall be worn at all times when on duty[.]” (Emphases added.)
6 Section 29-2-14(A), (C) create the petty misdemeanor crime of unauthorized wearing
7 of a State Police uniform or badge. It consists of “wearing or requiring the wearing,
8 without authorization by the secretary, of a uniform or badge or both whose material,
9 color or design, or any combination of them, is such that the wearer appears to be a
10 member of the New Mexico [S]tate [P]olice.” Section 29-2-14(A) (emphases added).
11 These statutes distinguish between a uniform and a badge. They can be understood
12 to reflect the Legislature’s understanding that, while a uniform and a badge are both
13 indicia of law enforcement officer status, the two are different—i.e., a badge is not
14 simply a part of a uniform. Uniform Vehicle Code Section 11-911 also distinguishes
15 between a police officer’s uniform and badge, requiring that the officer be in uniform
16 as well as that the badge be “prominently” displayed.
17 {17} Second, the statutory history of NMSA 1978, Section 66-8-124(A) (2007), is
18 consistent with this distinction between a uniform and a badge. The statute currently
19 reads,
9
1 No person shall be arrested for violating the Motor Vehicle Code
2 [NMSA 1978, Section 66-1-1 to -8-141 (1978, as amended through
3 2017)] or other law relating to motor vehicles punishable as a
4 misdemeanor except by a commissioned, salaried peace officer who, at
5 the time of arrest, is wearing a uniform clearly indicating the peace
6 officer’s official status.
7 When enacted in 1961, Section 66-8-124(A) contained the following second
8 sentence: “In the Motor Vehicle Code, ‘uniform’ means an official badge prominently
9 displayed, accompanied by a commission of office.” NMSA 1953, § 64-22-8.1
10 (1961). However, in 1968 the Legislature deleted the second sentence from the
11 statute. Compare 1961 N.M. Laws, ch. 213, § 3, with 1968 N.M. Laws, ch. 62, § 162.
12 The most logical inference to be drawn from the 1968 amendment is that which is
13 consistent with the Legislature’s enactment of Section 29-2-14(A) three years later:
14 the Legislature determined that a badge should not be considered part of a uniform
15 and instead is a separate indicia of law enforcement officer status.
16 {18} Third, Section 66-8-125(C) parallels the current language of Section 66-8-
17 124(A):
18 Members of the New Mexico [S]tate [P]olice, sheriffs, and their salaried
19 deputies and members of any municipal police force may not make
20 arrest for traffic violations if not in uniform; however, nothing in this
21 section shall be construed to prohibit the arrest, without warrant, by a
22 peace officer of any person when probable cause exists to believe that
23 a felony crime has been committed or in nontraffic cases.
24 {19} Fourth, Section 66-7-332(A), originally enacted in 1978, provides that:
10
1 Upon the immediate approach of an authorized [by the state police or a
2 local law enforcement agency] emergency vehicle displaying flashing
3 emergency lights or when the driver is giving audible signal by siren the
4 driver of every other vehicle shall yield the right of way and shall
5 immediately drive to a position parallel to, and as close as possible to,
6 the right-hand edge or curb of the roadway clear of any intersection and
7 shall stop and remain in that position until the authorized emergency
8 vehicle has passed, except when otherwise directed by a police officer.
9 (Emphasis added.) This statute therefore mandates, independent of Section 30-22-
10 1(C) and Section 30-22-1.1(A), that drivers pull off the road and stop when they see
11 or hear a law enforcement or other authorized vehicle with its emergency lights
12 and/or siren engaged. Section 66-8-116 imposes a fifty-dollar penalty for violating
13 Section 66-7-332.
14 {20} Section 66-7-332 together with Section 66-8-116, Section 30-22-1(C), and
15 Section 30-22-1.1(A) can be viewed as evincing a common general legislative intent:
16 enforcing, by means of progressively greater sanctions for disobedience, the public
17 policy imperative that a motorist must promptly pull off to the side of the road and
18 stop when he or she notices a law enforcement vehicle that has its emergency lights
19 and/or sound equipment engaged. Section 66-8-116 sanctions a motorist with a fine
20 for failure to comply with Section 66-8-332’s general requirement to take that action
21 in those circumstances. Section 30-22-1(C) sanctions as a misdemeanor the willful
22 failure to stop where it is objectively clear (based on visual and audible signals, a
23 uniform, and appropriate markings on a vehicle) that it is a law enforcement officer
11
1 who is signaling the motorist to stop. See State v. Padilla, 2008-NMSC-006, ¶ 22,
2 143 N.M. 310, 176 P.3d 299 (explaining that the intent of Section 30-22-1.1(A)’s
3 uniform and appropriately marked law enforcement vehicle requirements is to
4 “establish[] a defendant’s knowledge that he is fleeing a police officer”). And in order
5 to advance LESPA’s apparent goal of reducing the risk of injuries and fatalities
6 resulting from high-speed police chases, Sections 30-22-1.1(B) sanctions as a fourth
7 degree felony the same failure to stop under circumstances that endanger the life of
8 another person.
9 C. Archuleta and Maes
10 {21} The State argues that State v. Archuleta, 1994-NMCA-072, 118 N.M. 160, 879
11 P.2d 792, and State v. Maes, 2011-NMCA-064, 149 N.M. 736, 255 P.3d 314, hold
12 that a badge without more suffices as a “uniform” as that term is used in Sections 66-
13 8-124(A) and Section 66-8-125(C). It urges that we extend that precedent to Section
14 30-22-1.1(A). We are not persuaded.
15 {22} Initially, we observe that the defendants in Archuleta and Maes were not
16 arrested and prosecuted for violating Section 30-22-1.1(A) or even Section 30-22-
17 1(C). In Archuleta, the defendant was stopped for speeding. 1994-NMCA-072, ¶ 2.
18 The question whether the arresting police officer was wearing a uniform arose only
19 because, as discussed above, Section 66-8-124(A) and Section 66-8-125(C) require
12
1 an arresting officer to be in uniform to make an arrest for a traffic offense. Archuleta,
2 1994-NMCA-072, ¶ 7. Similarly, in Maes, the defendant initially was stopped on the
3 basis of traffic infractions but following a search of his vehicle ultimately was
4 charged with drug offenses. 2011-NMCA-064, ¶ 3. He challenged the legality of the
5 search based on the claimed impropriety of the stop under Section 66-8-124(A) and
6 Section 66-8-125(C). Maes, 2011-NMCA-064, ¶ 4.
7 {23} We note also that the facts of Archuleta and Maes, and as a result the questions
8 to be resolved, were different than those of the case at bar. In Archuleta, the police
9 officer, a member of the Albuquerque Police Department (APD), was in civilian
10 clothes but driving a marked police vehicle on a major street in Albuquerque, New
11 Mexico. 1994-NMCA-072, ¶ 2. The defendant, who was a former police officer,
12 pulled up in his vehicle alongside the police officer. Id. ¶¶ 2, 4. The defendant looked
13 at the police officer and then immediately accelerated to a speed that exceeded the
14 posted speed limit. Id. ¶ 2. After the police officer turned on his emergency lights, the
15 defendant immediately braked, pulled over to the shoulder, and stopped. Id. At that
16 point the police officer put on a windbreaker issued by APD which had “a cloth shield
17 on the front which [said] ‘Albuquerque Police’ and a patch on the shoulder which
18 [had] the State of New Mexico emblem on it. That emblem also [had] the words
19 ‘Albuquerque Police’ on it.” Id. (The opinion does not indicate whether the police
13
1 officer had his badge attached to his clothing.) When the police officer approached
2 the defendant’s vehicle, the defendant argued with the officer that he could not stop
3 him because he was not in uniform. Id. ¶ 3.
4 {24} In Maes, two State Police officers wearing “Basic Duty Uniforms” (BDUs) and
5 driving an unmarked vehicle stopped the defendant for traffic infractions. 2011-
6 NMCA-064, ¶¶ 1, 3. Following a license plate check, the officers learned the
7 defendant had outstanding warrants and arrested him. Id. ¶ 3. During a search incident
8 to arrest, they discovered the drugs for which the defendant ultimately was
9 prosecuted. Id. The BDUs consisted of black pants, a black vest, a black long-sleeve
10 shirt
11 with the words ‘STATE POLICE’ in large bold yellow lettering on the
12 sleeves, the word ‘POLICE’ in large bold white lettering on the right
13 shoulder area, a smaller triangular cloth patch with the words ‘STATE
14 POLICE’ also on the right shoulder; and, on the back of the shirt, the
15 word ‘POLICE’ in large bold white lettering in two places; an
16 equipment belt, holster, and firearm; and a metal police badge hung from
17 one of the front pockets.
18 Id. ¶ 11. Thus, the practical question in Archuleta and Maes was not whether, as here,
19 a badge without more suffices as a uniform (indeed, the significance of a badge to the
20 determination of whether a law enforcement officer is in uniform was not addressed
21 at all in either opinion), but whether Section 66-8-124(A) and Section 66-8-125(C)
22 required a full uniform as opposed to the APD windbreaker in Archuleta or the BDUs
14
1 in Maes.
2 {25} The State argues that Deputy Russ’s attire satisfied a two-part test articulated
3 in Archuleta for being in a “uniform” as that term is used in these statutes:
4 [W]e adopt two alternative tests for determining if an officer is in
5 “uniform” within the intent of the statute; one, whether there are
6 sufficient indicia that would permit a reasonable person to believe the
7 person purporting to be a peace officer is, in fact, who he claims to be;
8 or, two, whether the person stopped and cited either personally knows
9 the officer or has information that should cause him to believe the
10 person making the stop is an officer with official status.
11 1994-NMCA-072, ¶ 11. With respect to the objective prong of this test, the State
12 argues that a reasonable person would believe that Russ was a law enforcement
13 officer because, like other investigators with the Curry County Sheriff’s Office, he
14 was wearing a shirt and tie, a badge, a gun, and handcuffs.“Indeed, the badge alone
15 clearly indicated Russ’s official status[.]” We disagree. First, the mere fact that all
16 other Curry County Sheriff’s Office investigators wear civilian clothes does not
17 convert those clothes into a “uniform” within the plain meaning of the word, nor,
18 indeed, do we believe it would lead a reasonable person in Curry County or elsewhere
19 to believe that Russ was a law enforcement officer. A shirt and tie do not have the
20 distinctive markings and lettering present on the APD windbreaker and State Police
21 BDU described in Archuleta and Maes, respectively. Second, as discussed above,
22 pursuant to Section 29-2-13 and Section 29-2-14, a badge is not part of a uniform, but
15
1 rather a separate indicia of law enforcement officer status. Third, we note that the
2 record in this case is devoid of any description of the badge that Russ wore, in
3 particular, any description of its wording or the size of the lettering. Therefore, we
4 cannot reach any conclusions regarding what information about his law enforcement
5 officer status the badge reasonably may have conveyed to Defendant. Fourth, and
6 similarly, while Undersheriff Reeves testified that Curry County Sheriff’s Office
7 investigators normally carry firearms and handcuffs, Russ did not testify and nothing
8 else in the record establishes that he was carrying a gun when he arrested Defendant
9 on September 4, 2013—although Russ did testify that he handcuffed Defendant after
10 the vehicles came to a stop. But even assuming, based on Undersheriff Reeves’
11 habit/routine testimony, see Rule 11-406 NMRA, we can infer that Russ had both a
12 gun and handcuffs, for the reasons discussed above, we do not agree that such
13 equipment would suffice to constitute a uniform within the meaning of Section 30-22-
14 1.1(A) in the absence of some distinctive clothing—such as the APD windbreaker or
15 the State Police BDUs—that would identify Russ as a law enforcement officer.
16 {26} With respect to the subjective prong of the test, the State maintains that the
17 evidence showed that Defendant recognized Deputy Russ as a law enforcement
18 officer, because he did not simply fail to pull over when signaled to stop and instead
19 “reacted to Russ’s presence by turning down various streets, driving through stop
16
1 signs, and accelerating to 55 miles per hour.” The mere fact that a motorist speeds
2 away from a vehicle that engages emergency lights does not prove that he or she
3 knows that the driver of the other vehicle is a law enforcement officer. Another
4 plausible inference is that the motorist suspects that the driver is someone who is only
5 posing as a law enforcement officer. Moreover, it certainly would not follow from
6 Defendant’s response that he recognized Russ—who was still inside the vehicle—as
7 a law enforcement officer on the basis of his clothing, badge and equipment as
8 opposed to Russ engaging his vehicle’s flashing and alternating lights. The State’s
9 argument effectively would eliminate the uniform element of the aggravated fleeing
10 crime, a proposition we decline to accept. In any event, there is no evidence in the
11 record to support the State’s supposition. In fact, Russ testified that he did not know
12 what Defendant was thinking.
13 {27} Our more fundamental concern with applying the two-part Archuleta test to
14 Section 30-22-1.1(A) is that it permits a determination that a law enforcement officer
15 is in “uniform” to be made on the basis of considerations unrelated to what he or she
16 is wearing. In Archuleta, the court relied on the fact that the officer was driving a
17 “marked police unit” in concluding that both the objective and the subjective prongs
18 of the test were met. 1994-NMCA-072, ¶¶ 11-12. Section 30-22-1.1(A), however,
19 requires that an officer be both “uniformed” and in “an appropriately marked law
17
1 enforcement vehicle.” “The [L]egislature is presumed not to have used any surplus
2 words and each word has a meaning.” State v. Doe, 1977-NMCA-092, ¶ 6, 90 N.M.
3 776, 568 P.2d 612. “We will not assume that the [L] has adopted useless language in
4 the statute.” In re Francesca L., 2000-NMCA-019, ¶ 10, 128 N.M. 673, 997 P.2d 147,
5 overruled on other grounds by State v. Adam J., 2003-NMCA-080, ¶ 10, 133 N.M.
6 815, 70 P.3d 805.
7 {28} Lastly, the State points to the discussion in Archuleta of the 1968 amendment
8 of Section 66-8-124(A) as support for its position that Deputy Russ’s badge, without
9 more, constituted a uniform. See Archuleta, 1994-NMCA-072, ¶ 10. As discussed
10 above, in 1968 the Legislature amended Section 66-8-124(A), which prohibits arrests
11 for violations of the Motor Vehicle Code except by a uniformed peace officer, by
12 deleting its second sentence which had read, “[I]n the [M]otor [V]ehicle [C]ode,
13 ‘uniform’ means an official badge prominently displayed, accompanied by a
14 commission of office.” Archuleta, 1994-NMCA-072, ¶ 10. The Archuleta panel noted
15 this amendment and commented, “We believe that the deletion of that language
16 suggested that the [L]egislature intended the definition of ‘uniform’ to be less
17 restrictive, no doubt recognizing that modern day police officers may have more than
18 one uniform or may on occasion wear combinations thereof.” Id. (emphasis added).
19 The State seizes on this language:
18
1 Deputy Russ’s attire clearly would have qualified as a uniform under
2 this [pre-1968] definition, because he was a certified peace officer,
3 wearing his badge on his chest pocket, ‘prominently displayed’. . . .
4 Logically, if Deputy Russ’s attire qualified as a uniform under this more
5 restrictive definition, it also must qualify under today’s less restrictive
6 definition.
7 {29} We respectfully question this inference in Archuleta. Prior to the 1968
8 amendment, a law enforcement officer attired in gym shorts and a t-shirt perhaps
9 could arrest a motorist for a misdemeanor violation of the Motor Vehicle Code or
10 other law relating to motor vehicles so long as he or she displayed a badge of office;
11 after the amendment, we submit, this would not be permitted. Thus, it is difficult to
12 understand how eliminating language that a badge, without more, constitutes a
13 uniform makes less restrictive the requirement in Section 66-8-124(A) that the law
14 enforcement officer be in uniform. Again, the more straightforward inference is that
15 the Legislature wanted to make clear, consistent with its enactment of Section 29-2-
16 14(A) three years later, that a badge is not a uniform or even part of a uniform. (The
17 amendment also made Section 66-8-124(A) consistent with Section 66-8-125(C).) In
18 any event, we do not believe that this comment in Archuleta was intended to suggest
19 that a badge, without more, constitutes a uniform. Indeed, there was no reference at
20 all in the case to whether the police officer in question had a badge on his person, and
21 instead the issue was whether the APD windbreaker qualified as a uniform. In that
22 context, and given the panel’s observation that “modern day” police officers have
19
1 more than one uniform, we understand the “less restrictive” point to be only that
2 Section 66-8-124(A) does not require that a law enforcement officer be in full
3 uniform to make an arrest for violating the Motor Vehicle Code.1 Archuleta, 1994-
4 NMCA-072, ¶ 10.
5 {30} To be clear, we have no quarrel with the conclusion in Archuleta and Maes that
6 a law enforcement officer need not be in full uniform in order to stop, cite, and/or
7 arrest a motorist for a misdemeanor traffic or other motor vehicle violation pursuant
8 to Section 66-8-124(A) and Section 66-8-125(C) or to satisfy the “uniformed”
9 element of Section 30-22-1.1(A). The APD officer’s windbreaker in Archuleta and
10 the State Police officers’ BDU uniform in Maes sufficed. However, because it
11 conflicts with the plain meaning of “uniform,” we decline to extend Archuleta’s
12 two-part test to construction of Section 30-22-1.1(A).2
1
11 We note as well that the second sentence of Section 66-8-124(A) was never
12 applicable to more than the Motor Vehicle Code, i.e., it cannot be invoked to support
13 interpretation of Sections 30-22-1(C) or -1.1(A).
2
14 The State’s final argument regarding the uniform issue relies on Section 29-2-
15 14, which prohibits, as a petty misdemeanor, wearing a badge without authorization.
16 The State reasons that Deputy Russ’s badge, clearly indicated his official status, and,
17 therefore, qualified as a uniform. The logic is flawed. First, Section 29-2-14 applies
18 only to State Police uniforms. To our knowledge, it is not a crime to wear a Clovis
19 County Sheriff’s Office badge without authorization. Second, and more
20 fundamentally, it ignores the distinction drawn, by not only Section 29-2-14 but also
21 Section 29-2-13, between a badge and a uniform. Whether or not a law enforcement
22 officer’s badge might indicate his or her official status, Section 30-22-1.1(A) still
23 requires, as an element of the crime, that the pursuing officer be in uniform, and a
20
1 D. Applying the Plain Meaning of “Uniform” to Sections 30-22-1.1A and
2 30-22-1(C) Does Not Lead to a Result That Is Absurd or Contrary to
3 Clearly Manifested Legislative Intent
4 {31} While “the plain meaning rule is not absolute,” it is the norm. Chavez v.
5 Mountain States Constructors, 1996-NMSC-070, ¶ 24, 122 N.M. 579, 929 P.2d 971.
6 “We may depart from the plain language only under rare and exceptional
7 circumstances.” Padilla, 2008-NMSC-006, ¶ 41, (Chavez, J., dissenting) (internal
8 quotation marks and citation omitted). Thus, we give effect to the meaning of the
9 words of a statute “unless this leads to an absurd or unreasonable result.” State v.
10 Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801; accord Chavez, 1996-
11 NMSC-070, ¶ 24 (explaining that a court will “avoid any literal interpretation that
12 leads to an absurd or unreasonable result and threatens to convict the [L]egislature
13 of imbecility” (internal quotation marks and citation omitted)).
14 {32} Does application of the plain meaning of “uniform” to Section 30-22-1.1(A)
15 necessarily yield an unreasonable or absurd result? No. Requiring as an element of
16 the crime that the pursuing officer be in uniform, i.e., clothing that in addition to a
17 badge objectively identifies him or her as a law enforcement officer, is unreasonable
18 only if one assumes that the intent of the statute is to criminalize all refusals to
19 comply with a signal to stop, even by a nonuniformed officer. But that would render
20 uniform is not the same as a badge.
21
1 meaningless, contrary to the foregoing rules of construction, the word “uniformed”
2 in the statute. It also would conflict with Section 29-2-13 and Section 29-2-14, which
3 distinguish between uniforms and badges. Thus, if anything, the absurd or
4 unreasonable result is reached by not applying the plain meaning of “uniform.” An
5 interpretation of Section 30-22-1.1(A) that imposes the felony sanction only where
6 it is clear (from, among other indicators, the uniform) that the person who has
7 signaled the motorist to stop is a law enforcement officer is reasonable and, in fact,
8 advances the apparent legislative intent.
9 {33} We emphasize that construing Section 30-22-1.1(A) in accordance with the
10 plain meaning of “uniform” does not give motorists license to simply ignore law
11 enforcement officers who signal them to stop. Section 66-7-332(A) remains in effect
12 and requires motorists to pull over whenever any emergency vehicle, including a law
13 enforcement vehicle whether or not its occupant is in uniform, has engaged its lights
14 and/or sirens. Section 66-8-125 remains in effect as well: all law enforcement
15 officers, whether or not in uniform, retain their authority to make arrests for all
16 nontraffic offenses and all felonies where probable cause exists. Giving effect to the
17 plain meaning of “uniform” in Section 30-22-1.1(A) prevents a law enforcement
18 officer who is not in a uniform only from arresting a motorist for violation of Section
22
1 30-22-1.1(A) itself.3 This is not an absurd result. Rather, it gives meaning to the
2 Legislature’s inclusion of the word “uniformed” in the statutes and carries out the
3 apparent intent in doing so: to “establish[ ] a defendant’s knowledge that he is fleeing
4 a police officer.” Padilla, 2008-NMSC-006, ¶ 22.
5 {34} It matters not that an argument might be made that it would be better policy to
6 allow nonuniformed law enforcement officers to make arrests for violation of Section
7 30-22-1.1(A).“[W]e must assume the [L]egislature chose its words advisedly to
8 express its meaning unless the contrary intent clearly appears.” State v. Maestas,
9 2007-NMSC-001, ¶ 22, 140 N.M. 836, 149 P.3d 933 (alterations, internal quotation
10 marks, and citation omitted). “[A] statute must be read and given effect as it is written
11 by the Legislature, not as the court may think it should be or would have been written
12 if the Legislature had envisaged all the problems and complications which might arise
13 in the course of its administration.” Id. ¶ 14 (internal quotation marks and citation
14 omitted). Stated another way, courts generally “are not at liberty to disregard the plain
15 meaning of words in order to search for some other conjectured intent.” State v.
16 Carroll, 2015-NMCA-033, ¶ 4, 346 P.3d 372 (omission omitted).
3
17 Even if the plain meaning of uniform were applied to Section 66-8-124(A) and
18 Section 66-8-125(C), a question we do not address herein, a law enforcement officer
19 who is not in a uniform still would be prevented only from arresting a motorist for a
20 nonfelony Motor Vehicle Code or other traffic or motor vehicle offense.
23
1 II. APPROPRIATELY MARKED LAW ENFORCEMENT VEHICLE
2 {35} We now address whether an “unmarked” police vehicle, that is, one with no
3 lettering or insignia anywhere on the exterior, nevertheless may constitute an
4 “appropriately marked” law enforcement vehicle for purposes of Section 30-22-
5 1.1(A). The aggravated fleeing statute does not define “appropriately marked.” As
6 previously mentioned, the term appears in Section 30-22-1(C) but is not defined in
7 that statute either.
8 A. The Plain Meaning of “Appropriately Marked”
9 {36} Our analysis again begins with the plain meaning of “appropriately marked.”
10 Webster’s Third New International Dictionary 1383 (Unabridged ed. 1986) defines
11 “marked” as “having a mark.” More usefully, Webster’s then broadly defines “mark”
12 as “something that gives evidence of something else.” Marked, Webster’s Third New
13 Int’l Dictionary 1382 (Unabridged ed. 1986). Within that general definition,
14 Webster’s provides the following subdefinition, among others: “a character, device,
15 label, brand, seal, or other sign put on an article esp[ecially] to show the maker or
16 owner, to certify quality, or for identification[.]” Id. (emphasis added). The reference
17 in this subdefinition to “device” is notable, in that a mark is not necessarily graphic,
18 or even visual. “Appropriate” means “specially suitable,” and “appropriately” means
19 “in an appropriate manner.” Webster’s Third New Int’l Dictionary 106 (Unabridged
24
1 ed. 1986).
2 {37} In the context of Section 30-22-1.1(A), we understand the plain meaning of
3 “appropriately marked” to be that the vehicle in question is marked in a manner that
4 is suitable for being driven by a law enforcement officer and identified as such. We
5 consider it significant that the Legislature did not specifically refer to insignia or
6 lettering, and instead used only the broader term, “mark.” Emergency lights and a
7 siren are devices that can evidence, i.e., identify, a law enforcement vehicle. Thus,
8 absent some basis for not applying the plain meaning rule, Deputy Russ’s vehicle was
9 “appropriately marked” as that term is used in Section 30-22-1.1(A).
10 B. Resolving the Ambiguity in “Appropriately Marked”
11 {38} Notwithstanding our conclusion that the plain meaning of “appropriately
12 marked,” as used in Section 30-22-1.1(A), encompasses emergency lights and sirens,
13 we acknowledge that a “marked” police car commonly refers to a vehicle with
14 lettering, insignia, or striped paint that would indicate the driver of the vehicle is a
15 law enforcement officer, and conversely an “unmarked” police car refers to a vehicle
16 without any such graphic markings on the exterior. See, e.g., People v. Mathews, 75
17 Cal. Rptr. 2d 289, 291 (Cal. Ct. App. 1998) (addressing whether “an unmarked police
18 vehicle equipped with a siren, a red light mounted on the front dashboard, and
19 headlights which flashed in an alternating, ‘wigwag’ pattern” was “distinctively
25
1 marked” within the meaning of California’s analog to Section 30-22-1.1(A) (internal
2 quotation marks and citation omitted)). Indeed, the district court acknowledged this
3 colloquial terminology during Defendant’s trial, concluding that Deputy Russ’s Ford
4 Expedition “was not a marked vehicle.” See 10.5.400.8(C)(1)(a) NMAC (Department
5 of Public Safety regulation specifying that “both marked and unmarked [State Police
6 vehicles]” will be used only for official business).
7 {39} A statute’s ambiguity is one circumstance in which we will not apply the plain
8 meaning rule to construe it. “We do not depart from the plain language of a statute
9 unless we must resolve an ambiguity[.]” Progressive Nw. Ins. Co. v. Weed Warrior
10 Servs., 2010-NMSC-050, ¶ 6, 149 N.M. 157, 245 P.3d 1209 (internal quotation marks
11 and citation omitted). “A statute is ambiguous when it can be understood by
12 reasonably well-informed persons in two or more different senses.” Maestas v. Zager,
13 2007-NMSC-003, ¶ 9, 141 N.M. 154, 152 P.3d 141 (internal quotation marks and
14 citation omitted). Given the divergence between the plain meaning and the common
15 understanding of a marked law enforcement vehicle, the phrase “appropriately
16 marked” in Section 30-22-1.1(A) is ambiguous.
17 {40} “When a statute’s language is ambiguous or unclear, we look to legislative
18 intent to inform our interpretation of the statute.” Ortiz v. Overland Express, 2010-
19 NMSC-021, ¶ 18, 148 N.M. 405, 237 P.3d 707; see also Helen G. v. Mark J.H., 2006-
26
1 NMCA-136, ¶ 11, 140 N.M. 618, 145 P.3d 98 (noting that ambiguous provisions
2 require the court to ascertain a statute’s legislative purpose), rev’d on other grounds
3 by 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914. In Padilla, our Supreme Court
4 articulated the legislative intent behind Section 30-22-1.1(A)’s “appropriately
5 marked” requirement in the context of its discussion of the statute’s scienter
6 requirement:
7 [T]he officer’s conduct, wearing his uniform, being in a marked car, and
8 signaling the defendant to stop, establishes a defendant’s knowledge that
9 he is fleeing a police officer. As such, it is a fair inference that the
10 Legislature intended to make those parts of the officer’s conduct that
11 establishes scienter, i.e., the accused’s knowledge that he is fleeing an
12 officer, elements of the crime of aggravated fleeing.
13 Padilla, 2008-NMSC-006, ¶ 22 (emphases added). Thus, the intent of Section 30-22-
14 1.1(A)’s requirement that the police vehicle be “appropriately marked” is the same
15 as that statute’s requirement that the officer be in uniform: to establish that the
16 motorist knows that he is fleeing a law enforcement officer.
17 {41} Given this intent, are the siren and flashing emergency lights on Deputy Russ’s
18 vehicle properly understood to be “appropriate marks” that identified it as a law
19 enforcement vehicle? Defendant argues generally that a motorist cannot know that
20 a vehicle that lacks identifying insignia or lettering is a law enforcement vehicle,
21 because “lots of vehicles have flashing lights.” Defendant’s point is that, without an
22 insignia or lettering specifically indicative of law enforcement, it is not possible to
27
1 distinguish a vehicle with flashing lights from, for example, fire department vehicles
2 or ambulances. Thus, Defendant would have us conclude it is necessary for a vehicle
3 to have insignia or lettering in order to meet the legislative intent: establishing that
4 it is a law enforcement officer who is pursuing the motorist and signaling him or her
5 to stop.
6 {42} We are not persuaded. Pursuant to Section 66-7-332(A) discussed above, a
7 motorist who sees a vehicle with flashing emergency lights and/or hears its siren must
8 pull off the road and stop. Therefore, whether the motorist can differentiate a police
9 vehicle from, say, an ambulance, is of no consequence for purposes of establishing
10 the initial obligation to stop. Stated another way, a law enforcement vehicle is
11 “appropriately marked” so long as it has sufficient equipment to trigger the motorist’s
12 obligation under Section 66-7-332 to come to a stop. Once the motorist’s and the law
13 enforcement officer’s vehicles have come to a stop and the officer (assuming he is in
14 uniform) emerges from his vehicle, the officer’s identity as law enforcement will be
15 confirmed. If at that point the motorist drives off, he or she will violate Section 30-
16 22-1(C) and, potentially, Section 30-22-1.1(A). Thus, a vehicle equipped with
17 emergency lights, flashing lights, and siren, i.e., one consistent with the plain
18 meaning of “appropriately marked,” also meets the legislative intent underlying
19 Section 30-22-1.1(A).
28
1 {43} We also observe that Deputy Russ’s vehicle in any event had multiple sets of
2 specialized lights to distinguish it from civilian and other emergency vehicles. He
3 described the vehicle as being equipped with red and blue flashing lights. In addition,
4 the vehicle was equipped with wigwag headlights that flashed in an alternating
5 sequence. Defendant did not establish on cross-examination of Russ or Undersheriff
6 Reeves, or through other evidence presented as part of the defense case, whether any
7 non-law-enforcement emergency vehicles have flashing red and blue emergency
8 lights that are located inside the vehicle or on its grill as opposed to on the top of the
9 vehicle. Regardless, we can note that the absence of any flashing lights attached to
10 the top of the vehicle would appear to distinguish Russ’s vehicle from any other
11 emergency vehicle. Further, Defendant did not establish that any emergency vehicles
12 other than law enforcement vehicles are equipped with wigwag headlights. On the
13 basis of similar facts, the court in People v. Estrella, 37 Cal. Rptr. 2d 383, 386-87
14 (Cal. Ct. App. 1995), concluded that an “unmarked” vehicle was “distinctively
15 marked” within the meaning of California’s aggravating fleeing statute, Cal. Vehicle
16 Code § 2800.1(a)(3) (2006): “We find it incredible to believe or even seriously argue
17 that a reasonable person, upon seeing a vehicle in pursuit with flashing red and blue
18 lights, wigwag headlights and hearing a siren, would have any doubt that said pursuit
19 vehicle was a police vehicle.” Estrella, 37 Cal. Rptr. 2d at 386, 388 (distinguishing
29
1 flashing red and blue lights on a light bar (“emergency lights”) from the wigwag
2 lights (“alternating lights”)). For these reasons, we conclude that the siren along with
3 the combination of flashing and alternating lights on Russ’s vehicle were sufficient
4 to enable Defendant to know immediately, not only that it was an emergency vehicle,
5 but that it was a law enforcement vehicle in particular. That is, even assuming a siren
6 and emergency flashing lights would not meet Section 30-22-1.1(A)’s legislative
7 intent, Russ’s siren, flashing lights and wigwag lights would accomplish this goal and
8 thus satisfy the “appropriately marked” element of the crime.
9 C. Section 30-22-1.1(A)’s “Visual or Audible Signal to Stop” Language Is Not
10 Surplusage
11 {44} New Mexico courts will avoid construing one portion of a statute in a manner
12 that renders another portion superfluous. State v. Juan, 2010-NMSC-041, ¶ 39, 148
13 N.M. 747, 242 P.3d 314; State v. Indie C., 2006-NMCA-014, ¶ 14, 139 N.M. 80, 128
14 P.3d 508. Defendant argues that, if “appropriately marked” is not construed to require
15 that the law enforcement vehicle have insignia or lettering and instead that element
16 of Section 30-22-1.1(A) is satisfied by flashing lights and siren, then the requirement
17 that the officer give the motorist “a visual or audible signal to stop, whether by hand,
18 voice, emergency light, flashing light, siren or other signal,” will be rendered
19 surplusage and meaningless. Section 30-22-1.1(A).
20 {45} We disagree for several reasons. First, as the State points out, under Section 30-
30
1 22-1.1(A), the “visual or audible signal to stop” may be given by any number of
2 means, including hand or voice. Thus, the flashing lights and/or siren that satisfy the
3 appropriately marked vehicle element will not necessarily be the, or at least the only,
4 visual or audible signal to stop that the officer gives. Second, and related, Section 30-
5 22-1.1(A)’s examples of the visual or audible signal to stop are set out in the
6 disjunctive. For example, only a siren, an emergency light or a flashing light is
7 required. The siren, flashing red and blue lights, and wigwag lights activated on
8 Deputy Russ’s vehicle therefore were not all required to satisfy the “visual or audible
9 signal to stop” element. Third, and more fundamentally, in our view the fact that in
10 the case at bar the flashing lights might serve the purposes underlying both
11 elements—communicating the instruction to stop and making clear that the person
12 giving the instruction is a law enforcement officer—does not render either element
13 of the crime superfluous or meaningless. See People v. Hudson, 136 P.3d 168, 177
14 (Cal. 2006) (Moreno, J., dissenting) (concluding that “the requirement that a police
15 vehicle must be distinctively marked can be satisfied, in part, by the same evidence
16 used to establish the additional requirements that the vehicle exhibit a red
17 lamp . . . and sound a siren”). Thus, it is not necessary to construe “appropriately
18 marked” to require that the law enforcement vehicle have insignia or lettering to
19 avoid rendering meaningless “a visual or audible signal to stop.”
31
1 {46} We are sensitive to the public concern expressed over the past several decades
2 about persons posing as law enforcement officers in vehicles equipped with
3 emergency lights and sirens who stop and prey upon other motorists. “It is an all too
4 sad fact that persons have been victimized as a result of their trusting criminals who
5 were impersonating police officers to facilitate crimes.” A.F. v. State, 905 So. 2d
6 1010, 1012 (Fla. Dist. Ct. App. 2005) (internal quotation marks and citation omitted);
7 see also Archuleta, 1994-NMCA-072, ¶ 15 (noting the risk to the public posed by
8 police impersonators); State v. Kenneth, No. A-1-CA-33281, mem. op. (N.M. Ct.
9 App. Nov. 12, 2015) (nonprecedential) (affirming conviction of person who posed
10 as police officer and sexually assaulted a motorist). However, we have no evidence
11 that this consideration entered into the motivation of any of the members of our
12 Legislature in enacting Section 30-22-1.1(C). For this reason, it does not inform our
13 construction of Section 30-22-1.1(A). Our Legislature nevertheless may wish to
14 consider imposing sanctions, beyond the petty misdemeanor established by Section
15 29-2-14(A) for wearing a uniform or badge that appears to be that of a New Mexico
16 State Police officer, on individuals who impersonate law enforcement officers by
17 means of vehicle equipment and attire. Such a law would tend to promote the
18 legislative goal—ensuring that motorists stop when they see another vehicle with
19 emergency lights or siren engaged—underlying Section 66-7-332, Section 30-22-
32
1 1(C), and Section 30-22-1.1(A).
2 CONCLUSION
3 {47} The foregoing rules of statutory construction require that, as used in Section
4 30-22-1.1(A), “uniformed” and “appropriately marked” cannot be stripped of all
5 meaning, and instead will be interpreted in accordance with their plain meaning. So
6 construed, however, these phrases do not mandate that the law enforcement officer
7 who signals the motorist to stop must be in full or formal uniform and in a fully
8 marked vehicle. The statute requires only that the officer be in a vehicle that
9 objectively establishes that the vehicle is an emergency vehicle for which, pursuant
10 to Section 66-7-332(A), the motorist must pull off to the side of the road and stop;
11 and wearing a uniform that, by the time the officer emerges from the vehicle,
12 objectively establishes that he is in fact a law enforcement officer. The sirens,
13 flashing red and blue emergency lights, and alternating wigwag headlights on Deputy
14 Russ’s vehicle met Section 30-22-1.1(A)’s “appropriately marked” standard. While
15 the informal uniforms at issue in Archuleta and Maes would have met the statute’s
16 “uniformed” standard, Russ’s street clothes and equipment, even with his badge
17 affixed to his shirt, did not.
18 {48} We reverse Defendant’s conviction for aggravated fleeing in violation of
19 Section 30-22-1.1(A).
33
1 {49} IT IS SO ORDERED.
2 ___________________________________
3 HENRY M. BOHNHOFF, Judge
4 WE CONCUR:
5 ___________________________________
6 LINDA M. VANZI, Chief Judge
7 STEPHEN G. FRENCH, Judge (dissenting)
34
1 FRENCH, Judge (concurring in part and dissenting in part).
2 {50} I concur in the Majority Opinion’s application of “appropriately marked” to the
3 vehicle driven by Deputy Russ relative to the aggravated fleeing statute, as that term
4 appears in Section 30-22-1.1(A). In dissenting, I take issue with the Majority
5 Opinion’s holding that Deputy Russ was not in uniform when he pursued and arrested
6 Defendant for aggravated fleeing.
7 {51} To determine whether Deputy Russ—adorned in a dress shirt, pants, a tie, and
8 accessorized by his holster, sidearm, extra sidearm magazines, handcuffs, and his
9 official sheriff’s department badge pinned upon his chest—was in uniform for
10 purposes of Section 30-22-1.1(A), our precedent uniformly, plainly, and consistently
11 directs application of a straightforward objective test. Rejected by the Majority today,
12 the test asks simply whether sufficient indicia of law enforcement authority was
13 displayed such that a reasonable person ought conclude that the person purporting to
14 be a peace officer in fact is. Yet today, the Majority upends that which a reasonable
15 person might readily conclude for a rigid, cloth-specific, requirement that officers
16 dress only in clothing that is itself marked, and diminishes law enforcement authority
17 when those officers wear something other than that exact uniform. Specifically,
18 because Deputy Russ’s clothing did not demonstrably reiterate what his badge made
19 clear, the Majority concludes he was not a “uniformed law enforcement officer”
35
1 pursuant to Section 30-22-1.1(A). To so hold, the Majority discards this Court’s
2 objective test and applies a dictionarial approach to glean the plain meaning of
3 uniform—as the dress or actual cloth worn—to the exclusion of Deputy Russ’s
4 official badge. I respectfully dissent.
5 {52} “Our primary goal when interpreting statutory language is to give effect to the
6 intent of the [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141
7 P.3d 1284. “We do this by giving effect to the plain meaning of the words of [the]
8 statute, unless this leads to an absurd or unreasonable result.” Marshall, 2004-
9 NMCA-104, ¶ 7. In Archuleta, we first construed the plain meaning of
10 uniform—“uniform plainly indicating his official status”—to give effect to the
11 intention of the Legislature. 1994-NMCA-072, ¶ 9; see id. (“[T]he intention of the
12 [L]egislature in requiring the officer to wear a uniform plainly indicating his official
13 status was to enable the motorist to be certain that the officer who stops him is, in
14 fact, a police officer.”). The officer making the stop in Archuleta was dressed in plain
15 clothes bearing no indicia that he was an officer. 1994-NMCA-072, ¶ 2. Upon exiting
16 his patrol car, he donned a police department windbreaker with a cloth shield on the
17 front indicating “Albuquerque Police” and cloth shoulder patch to the same effect. Id.18 Applying our objective test to discern the legislative intent in the plain meaning of
19 the words—“uniform clearly indicating the peace officer’s official status[,]” and “in
36
1 uniform[,]”—we held that sufficient indicia of law enforcement authority was clearly
2 evinced with the addition of the cloth shield and patch. Sections 66-8-124(A) and -
3 125(C); see also Archuleta, 1994-NMCA-072, ¶¶ 11-12. Here, Deputy Russ’s official
4 Curry County Sheriff’s badge was at all times prominently displayed on his chest.
5 Indeed, subsequent to Defendant’s willful and careless fleeing and crashing his car,
6 when Deputy Russ ordered Defendant to “show his hands” he did so, evidencing his
7 compliance with and acknowledgment of the officer’s official status and directive.
8 {53} In noting that the Legislature had removed language from what is now Section
9 66-8-124—which provided “uniform means an official badge prominently displayed,
10 accompanied by a commission of office”—the Archuleta Court concluded that the
11 Legislature intended the definition of “uniform” to be “less restrictive, no doubt
12 recognizing that modern day police officers may have more than one uniform or may
13 on occasion wear combinations thereof.” 1994-NMCA-072, ¶ 10 (internal quotation
14 marks omitted).
15 {54} In affirming this expression of legislative intent and applying Archuleta’s
16 objective test for determining whether an officer is in uniform, our Court in Maes
17 held that non-traditional dress or garments, adorned with police lettering and
18 accompanied by police badge, would constitute a uniform as that term is used in
19 Section 66-8-124(A) and Section 66-8-125(C). Maes, 2011-NMCA-064, ¶¶ 9-11; see
37
1 id. ¶ 11 (holding garments consisting of cloth marked with “STATE POLICE” and
2 “POLICE[,]” equipment belt, holster, firearm, and metal police badge, satisfied
3 objective test that reasonable person would believe that person wearing such
4 garments is, in fact, a police officer).
5 {55} There can be little doubt that we may infer that Deputy Russ’s official badge
6 conveyed words and symbols to the same effect as the cloth shield on the windbreaker
7 in Archuleta or cloth garments in Maes—such as “Sheriff’s Department” or “Sheriff.”
8 The Majority’s rejection of the objective sufficient indicia of law enforcement
9 authority test, in favor of a plain meaning of the word “uniformed” analysis, is
10 inapposite to our Court’s precedent. In so doing, the Majority would displace this
11 Court’s prior discernment of legislative intent for “uniform” and “in uniform,” thus
12 leading “to an absurd or unreasonable result.” Marshall, 2004-NMCA-104, ¶ 7. Here,
13 the unreasonable result is manifest: indicia of law enforcement authority that is
14 stitched into or printed upon a clothing garment itself is sufficient to being
15 “uniformed,” whereas indicia of law enforcement authority imprinted or stamped into
16 an official badge, or the forged official badge itself, pinned upon a clothing garment
17 is not, regardless of the attendant sidearm, holster, and other law enforcement tools.
18 {56} Because I would hold that the tie, dress shirt, dress pants, badge, and the
19 accouterments of law enforcement authority worn and displayed by Deputy Russ
38
1 would sufficiently notify any reasonable person that the man they encountered was
2 not Mr. Russ, but Deputy Russ, I respectfully dissent.
3 __________________________________
4 STEPHEN G. FRENCH, Judge
39