2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-113 - Reckless driving.
A. Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving.
B. Every person convicted of reckless driving shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, upon a first conviction by imprisonment for not less than five days nor more than ninety days, or by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100), or both and on a second or subsequent conviction by imprisonment for not less than ten days nor more than six months, or by a fine of not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000), or both.
C. Upon conviction of violation of this section, the director may suspend the license or permit to drive and any nonresident operating privilege for not to exceed ninety days.
History: 1953 Comp., § 64-8-113, enacted by Laws 1978, ch. 35, § 521; 1987, ch. 97, § 4.
Cross references. — For homicide by vehicles, see 66-8-101 NMSA 1978.
For driving while intoxicated, see 66-8-102 NMSA 1978.
For immediate appearance before magistrate for violation, see 66-8-122 NMSA 1978.
The 1987 amendment, effective April 7, 1987, in Subsection B inserted "notwithstanding the provisions of Section 31-18-13 NMSA 1978" following "shall be punished" near the beginning.
I. GENERAL CONSIDERATION.
The offense of reckless driving is a petty misdemeanor and is subject to a one-year statute of limitations. State v. Trevizo, 2011-NMCA-069, 150 N.M. 158, 257 P.3d 978.
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.
Violation of reckless driving provision is negligence per se. Bell v. Carter Tobacco Co., 1937-NMSC-053, 41 N.M. 513, 71 P.2d 683.
Death caused by mere negligence no basis for criminal prosecution. — A death caused by mere negligence, not amounting to a reckless, willful and wanton disregard of consequences to others, lays no foundation for criminal prosecution. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.
"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.
Reckless driving is distinguished from drunken driving so that a conviction for one does not preclude prosecution for the other. Rea v. Motors Ins. Corp., 1944-NMSC-002, 48 N.M. 9, 144 P.2d 676; State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.
Offense not necessarily lesser included offense in vehicular homicide. — 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 this section), 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.
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.
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.
Section does not preempt child abuse statute under general/specific statute rule. — In a case involving convictions of abuse of a child under Section 30-6-1 NMSA 1978, and reckless driving under this section, the Court of Appeals erred in holding that under the general/specific statute rule the reckless driving statute was the more specific offense and preempted the child abuse statute. State v. Guilez, 2000-NMSC-020, 129 N.M. 240, 4 P.3d 1231.
Guilty plea does provide substantial evidence of state of mind. — A plea of guilty to reckless driving, together will all of the other facts and circumstances, creates an issue of fact for the jury to determine whether the accident was caused by defendant's heedlessness or his reckless disregard of the rights of plaintiff. The reason is that it provides substantial evidence of defendant's state of mind. His plea of guilty admits that he drove his vehicle "heedlessly in willful or wanton disregard of the rights or safety of others". Valencia v. Dixon, 1971-NMCA-108, 83 N.M. 70, 488 P.2d 120, cert. denied, 83 N.M. 57, 488 P.2d 107.
A. IN GENERAL.
Evidence of driving conduct occurring before mishap admissible. — 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 11-404), 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.
Evidence of intoxication does not necessarily prove reckless driving. — While evidence of intoxication might bear upon question of whether defendant was guilty of reckless driving, it does not necessarily prove it; it is a circumstance to be considered by the jury in deciding the issue. State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.
Evidence of intoxication need not be sufficient to support a conviction for driving while under the influence pursuant to Section 66-8-102 NMSA 1978 in order to be admissible in a prosecution for violation of Section 64-22-3, 1953 Comp. (similar to this section), any evidence of drinking is relevant as a circumstance for the jury to consider on the issue of reckless driving. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029.
Intoxication evidence but one circumstance to consider in reckless driving. — In New Mexico, evidence of intoxication is but one circumstance to be considered by the jury in deciding the issue of reckless driving. Likewise, evidence of drinking has a tendency to make the existence of carelessness or lack of due caution more probable than it would be without the evidence and is thus relevant and but one circumstance to consider when the prosecution is for reckless driving. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029.
"Appearing" intoxicated evidence admissible even though acquitted on influence charge. — Even though defendant had been tried and acquitted for driving while under the influence of intoxicating liquors on the same facts under which he was charged with reckless driving, testimony by arresting officer that defendant appeared intoxicated was competent, as bearing on the issue of reckless driving, to prove all of the circumstances at the time of the alleged criminal act, including defendant's condition, movements and conduct. State v. Platter, 1959-NMSC-094, 66 N.M. 273, 347 P.2d 166.
B. HOMICIDE BY VEHICLE.
One who drives recklessly may be guilty of involuntary manslaughter. — One who operates his automobile in wanton disregard of the rights and safety of others may be guilty of involuntary manslaughter. State v. Turney, 1937-NMSC-011, 41 N.M. 150, 65 P.2d 869.
State must prove criminal negligence. — Evidence was insufficient to sustain conviction of involuntary manslaughter where state failed to sustain burden of proving criminal negligence on part of accused who was charged with driving his automobile in a reckless manner at the time of the accident. State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.
Negligence must be direct and proximate cause of death. — In order that a person may be guilty of a criminal homicide arising from the negligent operation of an automobile or its use for an unlawful purpose or in violation of law, it is uniformly held that it must be shown that such negligent operation, or use for an unlawful purpose or in violation of law, was the direct and proximate cause of the death; that is, that there was present a causal connection between the act and the death. State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.
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.
Excessive speed in residential neighborhood in wrong lane. — 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.
"Showing off" at high speeds on heavily traveled street. — 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.
Intoxication and mere running of red light may be reckless. — This court reviews evidence in a conviction for homicide by vehicle in the light most favorable to the verdict; thus, while the mere running of a red light would not, alone, constitute reckless driving, the circumstances of intoxication attending this act might reasonably lead a jury to a finding of recklessness. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.
Weaving back and forth across highway which customarily carries heavy traffic while traveling at a moderate rate of speed through a series of curves constituted substantial evidence of reckless driving. State v. Platter, 1959-NMSC-094, 66 N.M. 273, 347 P.2d 166.
It is not negligence to drive through fog if ordinary care under the circumstances is exercised; but the degree of care varies with the denseness of the fog and the danger to be avoided. Silva v. Waldie, 1938-NMSC-048, 42 N.M. 514, 82 P.2d 282.
Law reviews. — For comment, "Two-Tiered Test for Double Jeopardy Analysis in New Mexico," see 10 N.M.L. Rev. 195 (1979-80).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 133, 312 to 320, 381, 383.
Protest by guest against driver's manner of operation of motor vehicle as terminating host-guest relationship, 25 A.L.R.2d 1448.
Automobile operator's inexperience or lack of skill as affecting his liability to passenger, 43 A.L.R.2d 1155.
Admissibility in action involving motor vehicle accident, of evidence as to manner in which participant was driving before reaching scene of accident, 46 A.L.R.2d 9.
"Residence district," "business district," "school area," and the like, in statutes and ordinances regulating speed of motor vehicles, 50 A.L.R.2d 343.
Speed alone or in connection with other circumstances, as gross negligence, wantonness, recklessness, or the like, under automobile guest statute, 6 A.L.R.3d 769.
Gross negligence, recklessness, or the like, within "guest" statute, predicated upon conduct in passing cars ahead or position of car on wrong side of the road, 6 A.L.R.3d 832.
Reckless driving as lesser included offense of driving while intoxicated or similar charge, 10 A.L.R.4th 1252.
Motor vehicle operator's liability for accident occurring while driving with vision obscured by smoke or steam, 32 A.L.R.4th 933.
Statute prohibiting reckless driving: definiteness and certainty, 52 A.L.R.4th 1161.
60 C.J.S. Motor Vehicles § 164.5; 61A C.J.S. Motor Vehicles §§ 609-624.
Civil liability arising from use of cell phone while driving. 36 A.L.R.6th 443.