by Anthony Accurso

The Supreme Court of New Mexico consolidated two cases on appeal to clarify the meaning of the terms “uniformed law enforcement officer” and “appropriately marked law enforcement vehicle” under N.M. Stat. Ann. 1978, § 30-22-1.1(A) (2003).

Roy D. Montano and William Daniel Martinez both were charged with aggravated fleeing from law enforcement, a fourth-degree felony, resulting from two separate instances where they each fled from plainclothes police in unmarked vehicles. Section 30-22-1.1 penalizes “willfully and carelessly driving” after being told to stop “by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle” using any number of ways to signal such as hand signals, sirens, or flashing lights.

In Montano’s case, the Court of Appeals concluded the deputy’s badge alone was not a “uniform,” because the deputy was otherwise dressed in “a dress shirt with tie, dress slacks, and dress shoes.” However, it found that the undercover vehicle was “appropriately marked” when it flashed the red and blue lights embedded in its grill.

In Martinez’s case, the deputy was driving an undercover vehicle that “bore no insignias, stripes, decals, labels, seals, symbols or other pictorial signs” but was equipped with “red and blue LED lights located within the grill area that were visible through the grill even when not activated” and “an antenna that is not common to civilian vehicles.”

The district court acquitted Martinez of fleeing, but the Court of Appeals reversed based on its earlier holding that found the undercover vehicle “appropriately marked” by virtue of the deputy activating the signal lights.

On appeal, the New Mexico Supreme Court combined the cases to clarify the requirements for law enforcement under the statute.

In Montano’s case, the Court of Appeals concluded that the plain meaning of “uniform” did not include a badge. “Uniform” is “dress of a distinctive design or fashion adopted by or prescribed for members of a particular group.” Webster’s Third New International Dictionary (unabr. ed. 1986). Further, § 2.110.3.8(B)(2) NMAC distinguishes “[guns], holsters ... uniforms, belts, badges, and related apparatus” (where uniforms and badges are listed separately), the Court of Appeals noted. It thus decided that “equipment alone, without distinctive clothing, is not dress of a distinctive design or fashion, i.e., it is not a uniform.” The Court of Appeals also noted that the 1968 revision removed the sentence, “In the Motor Vehicle Code, ‘uniform’ means an official badge prominently displayed, accompanied by a commission of office.” NMSA 1953, § 64-22-8.1(1961). Since the Legislature presumably removed this phrase intentionally, it must mean that a badge alone no longer qualifies as a uniform, concluded the Court of Appeals.

Citing the foregoing reasoning by the Court of Appeals, comparisons with other New Mexico statutes, and the holdings in State v. Archuleta, 879 P.2d 792 (N.M. 1994) (officer’s windbreaker prominently displaying “POLICE” constitutes a “uniform”), and State v. Maes, 255 P.3d 314 (N.M. 2011) (state police basic dress uniform constitutes a uniform), the Supreme Court affirmed the portion of the Montano ruling that found a badge alone to be insufficient under Section 30-22-1.1 to constitute a uniform.

However, it reversed the Court of Appeals’ determination of what constitutes an “appropriately marked” vehicle.

The Court of Appeals relied on NMSA 1978, § 66-7-332(2005, amended 2017), which requires motorists to pull over for an “authorized emergency vehicle displaying flashing emergency lights,” to conclude that such lights are “appropriate” markings as they cause the motorist to pull over.

The Supreme Court concluded that that is insufficient. The stature doesn’t make it a felony for failing to stop for emergency vehicles. It’s merely a misdemeanor and a fine. The felony arises when fleeing from law enforcement. And “appropriately marked” then must mean “marked in a manner that is suitable for being driven by a law enforcement officer and identified as such,” according to the Court. Thus, an “appropriately marked law enforcement vehicle” must mean “a police vehicle bearing decals or other prominent and visible insignia identifying it as such,” the Court ruled.

This determination also avoids surplusage (redundancy of terms in the statute’s wording) and is similar to rulings in other states (with the exceptions of Kansas, Ohio, and Massachusetts), the Court explained.

Accordingly, the Court upheld the ruling in Montano that the plainclothes officer’s badge alone is not a “uniform” and reversed the portion in Montano and Martinez that concluded the unmarked police cars in both cases were “appropriately marked” within the meaning of the statute. See: State v. Montano, 468 P.3d 838 (N.M. 2020).

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