FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen,
H. Balderas, Attorney General Santa Fe, NM John J. Woykovsky,
Assistant Attorney General Albuquerque, NM for Appellee.
Attorney & Counselor at Law, P.A. Eric D. Dixon Portales,
NM for Appellant.
M. BOHNHOFF, Judge.
Roy Montano (Defendant) was convicted of aggravated fleeing
from a law enforcement officer in violation of NMSA 1978,
Section 30-22-1.1(A) (2003). Defendant contends on appeal, as
he argued below, that the Curry County Sheriffs Office deputy
whose signals to stop Defendant refused to obey was neither
"uniformed" nor in "an appropriately marked
law enforcement vehicle" as required by the statute.
See id. We conclude that, while the deputy's
vehicle complied with the statutory requirement, the clothes
that he was wearing did not constitute a uniform. We
therefore reverse Defendant's conviction.
On September 4, 2013, Deputy Glenn Russ with the Curry County
Sheriffs Office was working as an "investigator."
He was wearing the clothes that investigators were required
to wear: "a dress shirt with tie, dress slacks, and
dress shoes." His badge was displayed on the breast
pocket of his shirt. He was driving a Ford Expedition that
had no decals, striping, insignia, or lettering on the front,
back, or sides of the vehicle. However, the vehicle had a
government license plate, wigwag headlights, red and blue
flashing lights mounted on the front grill and the top of the
rear window, flashing brake lights, and a siren.
Around noon that day, while Deputy Russ was driving within
the Clovis, New Mexico city limits, he observed Defendant
enter a vehicle and begin driving. Russ initially thought
Defendant was someone else whom Russ believed had an
outstanding warrant. Russ approached Defendant's vehicle
from behind and checked the license plate. Russ determined
that the vehicle was registered to Defendant, not the other
person, but that the registration for Defendant's vehicle
had expired. At that point Russ attempted to stop Defendant
for the registration infraction by "utilizing the [red
and blue flashing] lights" on his vehicle. Defendant
then made a few turns and ran a stop sign, at which point
Russ activated his vehicle's siren. Defendant continued
driving through a residential neighborhood at speeds that
exceeded the posted speed limits and failed to stop at
additional stop signs and intersections. Defendant came to a
stop after his vehicle jumped a curb and drove onto an
adjacent easement after he attempted to turn by braking and
sliding through an intersection. Russ then approached the
vehicle, removed Defendant, placed him on the ground, and
handcuffed him. The pursuit lasted "a couple of
minutes" in total. Undersheriff Michael Reeves, also of
the Curry County Sheriffs Office, arrived at the scene after
Defendant was already in custody.
Defendant was charged with aggravated fleeing, contrary to
Section 30-22-1.1(A). Deputy Russ and Undersheriff Reeves
both testified at Defendant's bench trial. During the
trial, the district court took judicial notice that the
vehicle Russ drove "was not a marked vehicle." The
court denied Defendant's motion for directed verdict
based on his uniform and "appropriately marked
vehicle" arguments. The court determined that displaying
a badge was enough to be in uniform; the vehicle was
appropriately marked because motorists know they have to pull
over and stop when they see emergency lights flash. The court
found Defendant guilty of aggravated fleeing and imposed the
maximum sentence of eighteen months imprisonment.
In 2003, the Legislature enacted the Law Enforcement Safe
Pursuit Act (LESPA), 2003 N.M. Laws, ch. 260,
§§1-4. LESPA, which is codified at NMSA 1978,
Sections 29-20-1 to -4 (2003), mandates the development and
implementation of law enforcement agency policies and
training to reduce the risk that uninvolved motorists and
bystanders will be killed or injured by vehicles involved in
high-speed pursuits conducted by law enforcement personnel.
However, along with LESPA's establishment of standards
for the conduct of high-speed pursuits, Section 5(A) of 2003
N.M. Laws, ch. 260, codified at Section 30-22-1.1(A),
established the crime of aggravated fleeing from a law
Aggravated fleeing [from] a law enforcement officer consists
of a person willfully and carelessly driving his vehicle in a
manner that endangers the life of another person after being
given a visual or audible signal to stop, whether by hand,
voice, emergency light, flashing light, siren or other
signal, by a uniformed law enforcement officer in an
appropriately marked law enforcement vehicle in pursuit in
accordance with the provisions of the [LESPA].
30-22-1.1(B) provides that aggravated fleeing is a fourth
Section 30-22-1.1 (A) presumably is patterned after NMSA
1978, Section 30- 22-1(C) (1981). Section 30-22-1, which was
first enacted in 1963, established the misdemeanor crime of
resisting, evading, or obstructing an officer. As amended,
see 1981 N.M. Laws, ch. 248, § 1(C), the crime
is committed by, among other actions, "willfully
refusing to bring a vehicle to a stop when given a visual or
audible signal to stop, whether by hand, voice, emergency
light, flashing light, siren or other signal, by a uniformed
officer in an appropriately marked police vehicle[.]"
Section 30-22- 1(C).
Section 30-22-1(C) in turn appears to be patterned after a
provision, Section 11-911(a), of the Uniform Vehicle Code
that was added in 1968:
Any driver of a motor vehicle who willfully fails or refuses
to bring his or her vehicle to a stop, or who otherwise flees
or attempts to elude a pursuing police vehicle when given a
visual or audible signal to bring the vehicle to a stop,
shall be guilty of a misdemeanor. The signal given by the
police officer may be by hand, voice, emergency light or
siren. The officer giving such signal shall be in uniform,
prominently displaying the officer's badge of office, and
the officer's vehicle shall be appropriately marked
showing it to be an official police vehicle. *
Nat'l Comm. on Unif. Traffic Laws & Ordinances,
Uniform Vehicle Code & Model Traffic Ordinance
§ 11-911(a) (2000). A number of states have laws similar
to Section 30-22- 1(C) and Section 30-22-1.1 (A), see,
e.g., Ga. Code Ann. § 40-6-395(a) (2012); N.D.
Cent. Code § 39-10-71 (2011), although we are aware of
none with identical language.
UNIFORMED LAW ENFORCEMENT OFFICER
We first address whether Deputy Russ was
"uniformed", i.e., wearing a uniform on September
4, 2013, within the meaning of Section 30-22-1.1 (A).
Defendant generally argues that the street clothes Russ was
wearing that day do not constitute a uniform. The State
maintains that Russ's badge alone was a uniform.
Alternatively, the State argues, because he was required to
wear dress shoes, pants, and shirt with tie, those items
combined with his badge, handcuffs, and firearm together
constituted a uniform.
"When an appeal presents an issue of statutory
construction, our review is de novo." State v.
Tafoya, 2010-NMSC-019, ¶ 9, 148 N.M. 391, 237 P.3d
693. Challenges to the sufficiency of the evidence supporting
a conviction that raise an issue of statutory interpretation
are subject to the same de novo review standard. See
State v. Erwin, 2016-NMCA-032, ¶ 5, 367 P.3d 905,
cert, denied, 2016-NMCERT-___ (No. S-1-SC-35753,
Mar. 8, 2016).
The Plain Meaning of "Uniform"
Section 30-22-1.1 (A) does not define "uniformed."
Therefore, we interpret its meaning based on rules of
statutory construction. "Our primary goal when
interpreting statutory language is to give effect to the
intent of the [Legislature." State v. Torres,
2006-NMCA-106, ¶ 8, 140N.M.230, 141 P.3d 1284. A court
begins the search for legislative intent of a statute
"by looking first to the words chosen by the Legislature
and the plain meaning of the Legislature's
language." State v. Davis, 2003-NMSC-022,
¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation
marks and citation omitted).
Webster's Third New International Dictionary
2498 (Unabridged ed. 1986) defines "uniform" as
"dress of a distinctive design or
fashion adopted by or prescribed for members of a particular
group . . . and serving as a means of identification"
(Emphases added.); accord Uniform, New Oxford American
Dictionary 1890 (3d ed. 2010) (defining a uniform as
"the distinctive clothing worn by members of the same
organization or body"). "Dress, " in turn, is
defined as "utilitarian or ornamental covering for the
human body: as . . . clothing and accessories
suitable to a specific purpose or occasion[.]"
Dress, Webster's Third New Int'l Dictionary
689 (Unabridged ed. 1986) (emphasis added).
This definition of uniform is significant in two respects.
First, a uniform consists of clothing, as distinguished from,
for example, only a law enforcement officer's badge.
Stated another way, equipment alone, without distinctive
clothing, is not "dress of a distinctive design or
fashion[, ]" i.e., it is not a uniform. Cf.
18.104.22.168(B)(2) NMAC (distinguishing between "holsters,
... uniforms, belts, badges and related apparatus" as
items eligible for purchase with funds from the Law
Enforcement Protection Fund Act, NMSA 1978, §§
29-13-1 to -9 (1993, as amended through 2017)). Second, a
uniform is clothing that distinguishes the wearer from the
general public, i.e., identifies him or her as a member of a
Deputy Russ's clothing was not of a distinctive design or
fashion and did not serve to identify him as a law
enforcement officer. On the contrary, the purpose of his
outfit was, if anything, to allow him to blend in with the
general public. For purposes of applying the plain meaning of
uniform, it matters not that as an investigator Russ was
required to wear civilian clothes: they did not distinguish
him from the general public any more than the dress clothing
that lawyers generally must wear in court constitutes a
uniform that distinguishes them from persons who work in
other occupations where dress clothes are the norm. Further,
Russ's badge was not an article of clothing, even though
it, too, may be a separate indicia of law enforcement officer
status. Similarly, handcuffs and a holstered firearm may
identify the person wearing them as a law enforcement
officer, but they do not amount to clothing. Thus, absent
some basis for not applying the plain meaning rule, which we
now consider, Deputy Russ was not "uniformed" as
that term is used in Section 30-22-1.1 (A).
In addition to looking to its plain meaning, in construing a
statute, a court will consider related statutes. Statutory
language "may not be considered in a vacuum, but must be
considered in reference to the statute as a whole and in
reference to statutes dealing with the same general subject
matter." State v. Rivera, 2004-NMSC-001, ¶
13, 134 N.M. 768, 82 P.3d 939 (internal quotation marks and
citation omitted). "[W]henever possible, [the appellate
courts] must read different legislative enactments as
harmonious instead of as contradicting one another."
Id. (omission, internal quotation marks, and
citation omitted). In addition to looking at the statutory
language, "we also consider the history and background
of the statute [and w]e examine the overall structure of the
statute and its function in the comprehensive legislative
scheme." State v. Smith, 2004-NMSC-032, ¶
10, 136 N.M. 372, 98 P.3d 1022 (internal quotation marks and
discern no inconsistency between Section 30-22-1.1(A),
construed in accordance with the plain meaning of
"uniform, " and Section 30-22-1(C) quoted above, as
well as several other New Mexico statutes that address law
enforcement officers' uniforms and ...