2019 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Part 2 - TRAFFIC OFFENSES
Section 66-8-101 - Homicide by vehicle; great bodily harm by vehicle.
A. Homicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.
B. Great bodily harm by vehicle is the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle.
C. A person who commits homicide by vehicle while under the influence of intoxicating liquor or while under the influence of any drug is guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
D. A person who commits homicide by vehicle while violating Section 66-8-113 NMSA 1978 is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor Vehicle Code [Chapter 66, Articles 1 to 8 NMSA 1978] shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.
E. A person who commits great bodily harm by vehicle while under the influence of intoxicating liquor, while under the influence of any drug or while violating Section 66-8-113 NMSA 1978 is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor Vehicle Code shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.
F. A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, as provided in Subsection C or E of this section, and who has incurred a prior DWI conviction within ten years of the occurrence for which the person is being sentenced under this section shall have the person's basic sentence increased by four years for each prior DWI conviction.
G. For the purposes of this section, "prior DWI conviction" means:
(1) a prior conviction under Section 66-8-102 NMSA 1978; or
(2) a prior conviction in New Mexico or any other jurisdiction, territory or possession of the United States, including a tribal jurisdiction, when the criminal act is driving under the influence of alcohol or drugs.
H. A person who willfully operates a motor vehicle in violation of Subsection C of Section 30-22-1 NMSA 1978 and directly or indirectly causes the death of or great bodily harm to a human being is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
History: 1953 Comp., § 64-8-101, enacted by Laws 1978, ch. 35, § 509; 1981, ch. 370, § 1; 1983, ch. 76, § 1; 1989, ch. 226, § 1; 1991, ch. 114, § 1; 2004, ch. 42, § 2; 2016, ch. 16, § 1.
ANNOTATIONSCross references. — For the penalty for a felony, see 66-8-9 NMSA 1978.
For uniform jury instructions to be used with 66-8-101 NMSA 1978, see 14-240 NMRA.
The 2016 amendment, effective July 1, 2016, increased the penalty for homicide by vehicle while under the influence of intoxicating liquor or drugs; in Subsection C, after "homicide by vehicle", deleted "or great bodily harm by vehicle", after "under the influence of any drug", deleted "or while violating Section 66-8-113 NMSA 1978", after "guilty of a", deleted "third" and added "second", and after "31-18-15 NMSA 1978", deleted "provided that violation of speeding laws as set forth in the Motor Vehicle Code shall not per se be a basis for violation of Section 66-8-113 NMSA 1978"; added new Subsections D and E and redesignated the succeeding subsections accordingly; and in Subsection F, after "Subsection C", added "or E", after "occurrence for which", deleted "he" and added "the person", and after "shall have", deleted "his" and added "the person's".
The 2004 amendment, effective March 2, 2004, amended Subsection D to increase the basic sentence from two to four years and amended Paragraph (2) of Subsection E to add: "including a tribal jurisdiction". The 2004 amendment also changed "great bodily injury" to "great bodily harm".
The 1991 amendment, effective July 1, 1991, added Subsections D and E and redesignated former Subsection D as Subsection F.
The 1989 amendment, effective June 16, 1989, added Subsection D.
I. GENERAL CONSIDERATION.
Constitutionality. — Subsection D is not unconstitutionally ambiguous. State v. House, 2001-NMCA-011, 130 N.M. 418, 25 P.3d 257, cert. denied, 130 N.M. 167, 21 P.3d 36.
Applicability of section. — This section applies when the vehicular killing is while driving under the influence of intoxicating liquor, while driving under the influence of drugs or while driving recklessly. State v. Montoya, 1979-NMCA-002, 93 N.M. 346, 600 P.2d 292, cert. quashed, 92 N.M. 532, 591 P.2d 286.
Negligence. — Where the proof is sufficient to establish, beyond a reasonable doubt, that under the circumstances of the injury the conduct of the driver was so reckless, wanton, and willful, as to show an utter disregard for the safety of pedestrians, a conviction for manslaughter will be warranted; but an injury caused by mere negligence, not amounting to a reckless, willful and wanton disregard of consequences, cannot be made the basis of a criminal action. State v. Harris, 1937-NMSC-046, 41 N.M. 426, 70 P.2d 757.
The charges of party to the crime of homicide by vehicle and great bodily harm by a vehicle do not require physical control over a vehicle. State v. Marquez, 2010-NMCA-064, 148 N.M. 511, 238 P.3d 880, cert. quashed, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.
Party to the crime of homicide by vehicle and great bodily harm by a vehicle. — Where defendant and defendant's friend were drinking together in a bar; the friend became so intoxicated that the bar refused service; defendant and the friend were refused service at another bar; defendant bought a twelve-pack of beer and suggested that the friend drive them in the friend's vehicle so that they could continue to party; the friend's vehicle rear-ended a van that resulted in the death of two and great bodily injury of five occupants of the van; seven open beer cans were found in the friend's vehicle; the friend had a breath alcohol content of .19; and defendant stated that defendant knew the friend was intoxicated at the time of the accident, and that defendant should have taken the friend's keys away, although defendant did not have physical control over the friend's vehicle, defendant was guilty of homicide by a vehicle and of great bodily injury by a vehicle while driving a vehicle under the influence of alcohol. State v. Marquez, 2010-NMCA-064, 148 N.M. 511, 238 P.3d 880, cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182.
Injunction: inappropriate penalty. — Application of the enhancement provision of Subsection D did not violate defendant's constitutional rights to equal protection and due process. State v. House, 2001-NMCA-011, 130 N.M. 418, 25 P.3d 257, cert. denied, 130 N.M. 167, 21 P.3d 36.
Choice of statute for prosecution. — Vehicular homicide is a lesser offense than child abuse resulting in death. The legislature did not intend to create separately punishable offenses under Section 30-6-1C and Section 66-8-101 NMSA 1978 for one death, The crime of vehicular homicide does not operate as an exception to the crime of child abuse resulting in death to the extent of compelling the State to prosecute under the vehicular homicide statute for cases involving the operation of a vehicle. State v. Santillanes, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456, rev'g 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203.
Each homicide constitutes separate violation. — The subject of punishment of vehicular homicide is the killing of another, not the unlawful operation of a motor vehicle; thus, each homicide constitutes a separate violation of this section. State v. House, 2001-NMCA-011, 130 N.M. 418, 25 P.3d 257, cert. denied, 130 N.M. 167, 21 P.3d 36.
Involuntary manslaughter statute preempted. — This section preempts the involuntary manslaughter statute, Section 30-2-3 NMSA 1978, in unintentional vehicular homicide cases. State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209, aff'd, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131.
There is no such crime as homicide by vehicle by careless driving. State v. Yazzie, 1993-NMCA-101, 116 N.M. 83, 860 P.2d 213, overruled on other grounds by State v. Yarborough, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131.
"Operating" vs. "driving" motor vehicle. The legislature has made no distinction in this section as to whether "operating a motor vehicle" means to drive or be in actual physical control of the vehicle. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.
"Operation of a motor vehicle". — There was substantial evidence from which fact finder could determine that defendant, found underneath steering wheel immediately after accident, was driver of vehicle. State v. Vigil, 1985-NMCA-110, 103 N.M. 643, 711 P.2d 920, cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).
Criminal intent, a mental state of conscious wrongdoing, is a necessary element of the crime for which defendant was convicted, (homicide by vehicle), and one which must be proven. State v. Jordan, 1972-NMCA-033, 83 N.M. 571, 494 P.2d 984.
Driving under influence malum in se and evidence of intent. — Criminal intent, a mental state of conscious wrongdoing, is a necessary element of homicide by vehicle and one which must be proven; however, voluntarily driving a vehicle while under the influence is an act malum in se and this action is substantial evidence of criminal intent. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280; State v. Dutchover, 1973-NMCA-052, 85 N.M. 72, 509 P.2d 264.
Rules concerning contributory negligence have no application to homicide cases. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.
Driving conduct immediately before mishap admissible to show no "accident". — In a prosecution for homicide by vehicle by driving recklessly, evidence of driving conduct that occurred immediately before the mishap was admissible under Rule 404(b), N.M.R. Evid. (now Rule 11-404B), both to show defendant's mental state and also lack of accident. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029.
Unborn viable fetus is not a human being for purposes of vehicular homicide. The killing of a fetus, under the common law, was not homicide unless the fetus had been born alive; until born alive, there was no human being. State v. Willis, 1982-NMCA-151, 98 N.M. 771, 652 P.2d 1222.
Mental state required for vehicular homicide (conscious wrongdoing) requires only that a defendant purposefully engage in an unlawful act; a defendant need not know of any risk involved in his actions. State v. Ibn Omar-Muhammad, 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922.
Instruction tracking statute did not shift burden to defendant. — General principles of criminal law do not require that a defendant's conduct be the sole cause of the crime. Instead, it is only required that the result be proximately caused by, or the "natural and probable consequence of," the accused's conduct. Thus, as the causation instruction given in this case clearly states, the State has the burden of proving beyond a reasonable doubt that the defendant's actions caused the deaths and great bodily harm, in the sense that his unlawful acts, "in a natural and continuous chain of events," produced the deaths and the great bodily harm. This instruction does not instruct the jury to convict the defendant if he is at fault only to an insignificant extent. Accordingly, the vehicular homicide statute does not unconstitutionally shift the burden of proof and the trial court did not err in giving jury instructions that tracked the statute. State v. Simpson, 1993-NMSC-073, 116 N.M. 768, 867 P.2d 1150.
Sufficient evidence of homicide by vehicle and great bodily harm by vehicle. — Where defendant was charged with homicide by vehicle and great bodily harm by vehicle following a two-vehicle collision, and where defendant claimed that he was not the driver of the vehicle at the time of the accident, evidence presented at trial that defendant was observed with injuries on the left side of his body, which the state's expert witness opined would be consistent with defendant being in the driver's seat at the time of the accident, that DNA evidence was negative for another person on the driver's side of the vehicle and negative for defendant on the passenger's side of the vehicle, and that defendant made jailhouse statements implying that he was the driver, was sufficient to support defendant's convictions. State v. Hernandez, 2017-NMCA-020, cert. denied.
Corpus delicti of vehicular homicide may be proved by circumstantial evidence. — Where defendant was charged with vehicular homicide, and where the state sought to establish the corpus delicti of vehicular homicide purely from circumstantial evidence and without any expert testimony, and where the state presented circumstantial evidence that defendant was not in the lawful operation of the vehicle, based on his admission that he was in the vehicle, that blood found on the driver's side matched defendant's DNA, and that defendant had a blood alcohol content of .06 and had methamphetamine in his system, along with evidence that the decedent was alive in the vehicle prior to the accident and was found by officers after the accident with visible signs of trauma, the district court erred in dismissing the charges based on its finding that an expert was required as a matter of law to prove cause of death, because the circumstantial evidence to be presented by the state was sufficient to establish the corpus delicti of vehicular homicide. State v. Platero, 2017-NMCA-083, cert. denied.
Sufficient evidence of great bodily harm. — Where defendant was convicted of causing great bodily injury by vehicle following a collision in which defendant's vehicle, while traveling on a state road, crossed the center lane and struck a group of motorcyclists, there was sufficient evidence to support a finding of "prolonged impairment" where the victim testified that she experienced severe bruising, road rash, and bruised ribs as a result of the collision, that the bruising and road rash covered her right side, that she was unable to work for approximately a month, that for the first two weeks, she was unable to move because of the extreme pain resulting from her bruised ribs and that she still experiences pain resulting from the bruised ribs. State v. Cordova, 2016-NMCA-019, cert. granted, 2015-NMCERT-008.
Great bodily harm means harm to a human being other than the perpetrator. — Where defendant was charged with, and convicted of, driving while intoxicated causing great bodily harm to a human being, where the great bodily injury resulting from his unlawful conduct was to himself and not to others, defendant's conviction required reversal because 66-8-101 NMSA 1978 applies only when a driver while under the influence of an intoxicant has caused great bodily harm to another human being. State v. Gray, 2016-NMCA-095, cert. denied.
Sentence enhancement for prior DWI convictions. — Where defendant was convicted of driving while intoxicated causing great bodily harm, the trial court lacked statutory authority to enhance defendant's sentence by sixteen years for prior DWI convictions occurring in 1987, 1996, 2006, and 2008, because the enhancement can be added only for those prior convictions occurring within ten years of the occurrence for which the person is being sentenced. State v. Gray, 2016-NMCA-095, cert. denied.
Jury question as to type of homicide. — In most cases, it is for the jury to determine whether the defendant acted with the subjective knowledge of great danger to the lives of others required to establish depraved mind murder or merely with the mental state of conscious wrongdoing (i.e., whether he purposefully did an act the law declares to be a crime) required to establish vehicular homicide. State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165.
Sentence for homicide by vehicle. — Even though this section does not include the language "resulting in the death of a human being," the crime of homicide by vehicle is subject to the six-year sentence authorized by Section 31-18-15 A(4) NMSA 1978. State v. Guerro, 1999-NMCA-026, 126 N.M. 699, 974 P.2d 669, cert. denied, 126 N.M. 533, 972 P.2d 352; State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, cert. denied, 128 N.M. 689, 997 P.2d 821, rev'd, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.
II. DOUBLE JEOPARDY.
Driving under influence not necessarily lesser included offense. — A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. However, where the indictment against defendant was phrased in the alternative charging him with homicide by vehicle while violating either Section 66-8-102 NMSA 1978 or Section 64-22-3, 1953 Comp. (similar to Section 66-8-113 NMSA 1978), the prosecution was not barred by a conviction in municipal court for driving under the influence, since the lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.
Driving while under the influence of intoxicating liquor is not a lesser-included offense of homicide by vehicle because it is possible to commit homicide by vehicle without being intoxicated. State v. Munoz, 2004-NMCA-103, 136 N.M. 235, 96 P.3d 796.
Reckless driving not necessarily lesser included offense. — A conviction of reckless driving is not necessarily included in a conviction of vehicular homicide while driving under the influence. State v. Wiberg, 1988-NMCA-022, 107 N.M. 152, 754 P.2d 529, cert. denied, 107 N.M. 106, 753 P.2d 352.
Merger with driving-while-intoxicated offense. — A defendant's driving-while-intoxicated (DWI) offense merges with his vehicular homicide offense, and his sentence for the DWI conviction must be vacated. State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, rev'd, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.
Vehicular homicide and leaving the scene of an accident. — Where defendant drove a pickup toward a group of children who were trick-or-treating on Halloween; the chaperone pushed the children out of the way but was struck and killed; defendant stopped and then left the scene of the accident; defendant was convicted of homicide by vehicle under 66-8-101 NMSA 1978 and knowingly leaving the scene of an accident involving great bodily harm or death under 66-7-201 NMSA 1978, defendant's convictions did not violate defendant's double jeopardy rights. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-NMCERT-006.
Offense has no degrees thus driving under influence not included. — Driving while under the influence of intoxicating liquor is not a lesser included offense of homicide by vehicle, since homicide by vehicle provision has no degrees, and since homicide by vehicle not only may be committed while driving under the influence of intoxicating liquor, but may also be committed by driving while under the influence of drugs or reckless driving. State v. Trujillo, 1973-NMCA-076, 85 N.M. 208, 510 P.2d 1079, questioned in State v. Munoz, 2004-NMCA-103, 136 N.M. 235, 96 P.3d 796.
Convictions for two types of vehicular homicide prohibited. — When the defendant was charged with two charges of vehicular homicide for each of three deaths based on driving while intoxicated and on resisting, evading or obstructing an officer, he could not be convicted of more than one type of homicide by vehicle and it was error to allow convictions on both of the alternative charges and to impose consecutive sentences therefor. State v. Landgraf, 1996-NMCA-024, 121 N.M. 445, 913 P.2d 252, cert. denied, 121 N.M. 375, 911 P.2d 883.
Vehicular homicide and child abuse resulting in death. — Conduct underlying both vehicular homicide and child abuse resulting in death charges was the same. Therefore, the defendant's convictions and sentences for both offenses violated his right to be free from double jeopardy. State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, rev'd, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.
No double jeopardy when facts fail "same evidence" test. — Where the facts offered in municipal court to support a conviction for driving while under the influence of intoxicating liquors would not necessarily sustain a conviction for homicide by vehicle in district court, under the "same evidence" test there was no double jeopardy when the state sought to prosecute the defendant for homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.
When double jeopardy not applicable. — Where jurisdiction was lacking over an involuntary manslaughter alleged in a children's court proceeding, such allegation provides no basis for a double jeopardy claim in a subsequent prosecution. State v. Montoya, 1979-NMCA-002, 93 N.M. 346, 600 P.2d 292, cert. quashed, 92 N.M. 532, 591 P.2d 286.
Offense beyond jurisdiction of the court. — Where a defendant pleads guilty to the misdemeanor charges of driving while intoxicated and reckless driving in the magistrate court, he cannot then claim that a trial on the felony charge of homicide by vehicle while driving under the influence of intoxicating liquor in the district court is barred by the double jeopardy rule, because jeopardy cannot extend to an offense (i.e., homicide) beyond the jurisdiction of the magistrate court. State v. Manzanares, 1983-NMSC-102, 100 N.M. 621, 674 P.2d 511, cert. denied, 471 U.S. 1057, 105 S. Ct. 2123, 85 L. Ed. 2d 487, rh'g denied, 472 U.S. 1013, 105 S. Ct. 2715, 86 L. Ed. 2d 729 (1985); State v. James, 1979-NMSC-096, 93 N.M. 605, 603 P.2d 715.
Retrial is continuing prosecution. — Where the state initially brought charges of driving while intoxicated and vehicular homicide in one proceeding and the jury found the defendant guilty of driving while intoxicated but was unable to reach a verdict on the vehicular homicide count, the subsequent retrial of vehicular homicide did not subject the defendant to double jeopardy, as such an action could be characterized as a continuing prosecution of the vehicular homicide charge. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121.
Separate enhancements and consecutive terms. — In a prosecution for homicide by vehicle and great bodily injury by vehicle, arising out of a single incident, the imposition of separate enhancements and consecutive terms for each count does not constitute double jeopardy. State v. Telles, 1999-NMCA-013, 126 N.M. 593, 973 P.2d 845.
No merger with offense of injury to pregnant woman. — The offense of vehicular homicide does not merge with the offense of injury to a pregnant woman because the two statutory offenses require proof of different facts. State v. Begay, 1987-NMCA-025, 105 N.M. 498, 734 P.2d 278.
Causation. — Where causation, the element that distinguishes driving under the influence from great bodily injury by vehicle, was sufficiently in dispute, a jury rationally could have acquitted defendant of great bodily injury by vehicle and found defendant guilty of driving under the influence. State v. Munoz, 2004-NMCA-103, 136 N.M. 235, 96 P.3d 796.
III. RECKLESS OR INTOXICATED.
Substantial evidence of reckless driving while willfully disregarding the rights and safety of others. — Where a motorist, who was attempting to merge into the right lane of the highway, reported that defendant passed the motorist on the right side at a high speed; the police stopped defendant; defendant admitted that defendant had been driving eighty miles per hour; the officers gave defendant a verbal warning, told defendant to slow down before defendant hurt someone, and told defendant to follow the forty-five mile per hour speed limit which would decrease to thirty-five miles per hour; approximately two minutes after the traffic stop and one to one and one-half miles from the traffic stop, defendant collided with a vehicle that was crossing the highway, killing the passenger; defendant was driving in the left lane and could have avoided the collision by steering left into the oncoming traffic lane; instead, defendant veered to the right toward the other vehicle; the driver of the other vehicle testified that defendant appeared to be laughing as defendant veered into the other vehicle; and defendant was driving between fifty-four and fifty-nine miles an hour in a thirty-five miles per hour speed zone, there was substantial evidence that defendant was driving recklessly when defendant willfully disregarded the rights and safety of others. State v. Munoz, 2014-NMCA-101.
Sufficient evidence of reckless driving. — Where defendant was charged with homicide by vehicle, great bodily harm by vehicle, and reckless driving following a two-vehicle collision, and where defendant claimed that he was not the driver of the vehicle at the time of the accident, evidence presented at trial that the vehicle in which defendant occupied slowly cut across all lanes of travel in a nearly horizontal direction, causing the vehicle to collide with another vehicle, and where the jury was free to reject defendant's version of the facts, was sufficient to conclude that the driver showed a willful or wanton disregard of the rights or safety of others and was therefore sufficient to support the recklessness element of defendant's convictions. State v. Hernandez, 2017-NMCA-020, cert. denied.
Crossing yellow line to pass truck on incline is reckless. — Where driver crossed a yellow no-passing line while attempting to pass a truck at the crest of an incline and he saw the lights of the approaching car of the deceased, and there was hesitation and doubt in his mind before he started to pass, and by his own testimony, had the truck not increased its speed there would have been only the possible chance of passing safely, the sum total constitutes substantial evidence of reckless disregard of the rights or safety of others. State v. Tracy, 1958-NMSC-043, 64 N.M. 55, 323 P.2d 1096.
Overly excessive speed wanton and reckless disregard of other's rights. — Where the evidence was undisputed that defendant drove 70 m.p.h. in a residential neighborhood, in a 25 to 35 m.p.h. zone, and on the wrong side of the highway, and smashed into decedent's car and killed him, a jury would have a right to believe that the collision was not accidental, and that the defendant was driving in a careless manner and in wanton disregard of the rights or safety of others, or at a speed or in a manner so as to endanger any person, and the evidence was sufficient to submit to the jury homicide by vehicle while operating in a reckless manner. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657.
Mildly excessive speed while "showing off". — Evidence that at the precise time of the accident defendant was traveling at 45 m.p.h. in a 30 m.p.h. zone on a heavily traveled main street, that the decedent's vehicle drove out onto the main street after stopping at a stop sign, and that defendant revved up his engine, slammed on his brakes, left 74 feet of skid marks and hit the decedent's vehicle broadside, along with abundant evidence from many witnesses that during the hours and minutes immediately preceding the accident, defendant was engaged in showing off a "hot-rod" type vehicle (driving up and down the street at high speeds, switching in and out of lanes, straddling lanes, turning corners very rapidly and making illegal U-turns, in addition to alternately revving up and slowing down the engine and attempting to "leave rubber" when he passed young members of the opposite sex walking along the street, and drinking) showed, without doubt, that defendant was operating his vehicle carelessly and heedlessly in willful and wanton disregard of the rights and safety of others, and without due caution and circumspection and in a manner so as to be likely to endanger persons and property, and was sufficient to sustain the conviction for homicide by vehicle while driving recklessly. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029.
Ordinary recklessness is sufficient for conviction of vehicular homicide and is shown by a total disregard for the safety of others. State v. Ibn Omar-Muhammad, 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922.
Defendant's actions reasonably found to be reckless. — The jury could reasonably find that the defendant had operated a motor vehicle in a reckless manner that endangered another person by driving after drinking alcohol, deciding to lean over in the dark to get his cell phone, and driving onto the shoulder of the road. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071.
Hierarchy of vehicular homicide offenses. — Because the legislature made clear its intent to impose a greater penalty for DWI-related violations of this section, when committed by a recidivist-impaired driver, than for reckless-driving-related violations, regardless of the driving history of the defendant, DWI-related violations must be viewed as the graver or more serious offense. State v. House, 2001-NMCA-011, 130 N.M. 418, 25 P.3d 257, cert. denied, 130 N.M. 167, 21 P.3d 36.
Blood-alcohol content of other driver, passenger not relevant. — In trial of driver for vehicular homicide and great bodily injury by vehicle while under the influence, the trial court did not err in excluding evidence of the blood-alcohol concentration of the driver of the struck motorcycle, which was below the legal limit for intoxication, and that of the motorcycle's passenger, since neither fact was relevant to the case. State v. Telles, 1999-NMCA-013, 126 N.M. 593, 973 P.2d 845.
Vehicular homicide by reckless conduct is lesser included offense of depraved mind murder by vehicle. State v. Ibn Omar-Muhammad, 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922.
Instructing as lesser included offense of murder. — District court, in instructing on murder, committed reversible error in refusing to instruct the jury on the lesser included offense of vehicular homicide, where the evidence of the defendant's use of marijuana the night before the morning of the killing could have supported a conviction of vehicular homicide while under the influence of drugs. State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165.
No implied acquittal of greater offense. — Where the state brought charges of vehicular homicide and driving while intoxicated as separate counts, as opposed to lesser-included offenses, the jury's conviction of the defendant for driving while intoxicated but inability to reach a verdict on vehicular homicide was not an implied acquittal of vehicular homicide. An implied acquittal generally occurs when the jury is instructed to choose between a greater and a lesser offense, and chooses the lesser. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121.
No "crime-conviction" sequence requirement under Subsection D. — Sentencing of repeat DWI offenders under Subsection D, unlike habitual offender sentencing under New Mexico criminal law, does not require that the commission of each prior offense used for enhancement occur after the conviction for the previous offense. State v. Telles, 1999-NMCA-013, 126 N.M. 593, 973 P.2d 845.
Blood alcohol percentage material to state's conviction. — Where the state's conviction for vehicular homicide is based primarily upon defendant's driving under the influence of intoxicating liquor, his blood alcohol percentage is clearly material to his guilt or innocence. State v. Lovato, 1980-NMCA-126, 94 N.M. 780, 617 P.2d 169.
Admission of blood test results found not to be error. State v. Sanchez, 1982-NMCA-155, 98 N.M. 781, 652 P.2d 1232.
Evidence supported finding that defendant was under the influence at time of accident. State v. Copeland, 1986-NMCA-083, 105 N.M. 27, 727 P.2d 1342, cert. denied, 104 N.M. 702, 726 P.2d 856.
Admissions of the defendant. — Evidence was sufficient to support a finding of impairment or intoxication where the defendant admitted that he had consumed approximately sixteen ounces of wine and two additional alcoholic drinks the evening of the incident, that he had not eaten anything during the time he drank the alcohol, and the State presented evidence that the defendant consumed the alcohol in a two-hour period. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071.
Evidence that defendant had been drinking alcohol before driving is relevant to jury's consideration of defendant's recklessness. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071.
State proved the corpus delicti of vehicular homicide with sufficient evidence apart from defendant's admissions. — Where defendant was charged with homicide by vehicle after being involved in a car crash while intoxicated, and where defendant admitted to being the driver of the vehicle at the time of the accident, defendant's argument that the state failed to prove the corpus delicti of the charged offense was without merit, because under the corpus delicti rule, a defendant's extrajudicial statements may be used to establish the corpus delicti when the prosecution is able to demonstrate the trustworthiness of the confession and introduce some independent evidence of a criminal act, and in this case, the corpus delicti of vehicular homicide was established because other evidence showing that defendant was the driver of the vehicle corroborated the trustworthiness of defendant's confession and independently showed that defendant's passenger died from a criminal act. State v. Bregar, 2017-NMCA-028, cert. denied.
Violation while reckless and DWI was serious violent offense. — Where defendant's truck, which defendant was driving recklessly at a high rate of speed, crossed the center line, struck a bicyclist, propelled the bicyclist through the air and into the bed of defendant's truck, and killed the bicyclist; defendant's blood alcohol level was .23 and .24; and defendant had an extensive history of alcohol abuse, the offense of vehicular homicide was a serious violent offense under Section 33-2-34 NMSA 1978. State v. Solano, 2009-NMCA-098, 146 N.M. 831, 251 P.3d 769, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Violation while DWI. — Not all vehicular homicides committed while DWI are serious violent offenses under Section 33-2-34 NMSA 1978. State v. Worrick, 2006-NMCA-035, 139 N.M. 247, 131 P.3d 97, cert. quashed, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.
Violation while DWI was a serious violent offense. — Where defendant's vehicle collided head-on with the victim's vehicle; the victim died as a result of the collision; defendant's breath alcohol level was three times the presumption level of intoxication; although the victim's headlights were on, defendant claimed defendant did not see the victim because the victim's headlights were not on; and defendant admitted that defendant was too drunk to drive, defendant's offense of vehicular homicide was a serious violent offense under Section 33-2-34 NMSA 1978. State v. Worrick, 2006-NMCA-035, 139 N.M. 247, 131 P.3d 97, cert. quashed, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.
Violation can be "serious violent offense." — The trial court could reasonably conclude that vehicular homicide was a serious violent offense for purposes of Section 33-2-34 NMSA 1978 where, in addition to other evidence, it considered information contained in the presentence report that the vehicular homicide was the fourth time that the defendant had been arrested for an alcohol-related driving offense and that he had two previous convictions for DWI. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071.
Law reviews. — For comment, "Two-Tiered Test for Double Jeopardy Analysis in New Mexico," see 10 N.M.L. Rev. 195 (1979-80).
For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).
For note, "The New Mexico Supreme Court's 'Jurisdictional Exception' to the Bar on Double Jeopardy: State v. Manzanares," see 15 N.M.L. Rev. 537 (1985).
For article, "Unintentional Homicides Caused by Risk-Creating Conduct: Problems in Distinguishing Between Depraved Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal Homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).
For note, "Criminal Law: Applying the General/Specific Statute Rule in New Mexico - State v. Santillanes," see 32 N.M.L. Rev. 313 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 324 to 344, 383 to 385.
What amounts to negligent homicide within meaning of statutes penalizing negligent homicide by operation of a motor vehicle, 20 A.L.R.3d 473.
Homicide by automobile as murder, 21 A.L.R.3d 116.
Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.
Alcohol-related vehicular homicide: nature and elements of offense, 64 A.L.R.4th 166.
61A C.J.S. Motor Vehicles §§ 657 to 671.
