2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-123 - Conduct of arresting officer; notices by citation.

A. Except as provided in Section 66-8-122 NMSA 1978, unless a penalty assessment or warning notice is given, whenever a person is arrested for any violation of the Motor Vehicle Code or other law relating to motor vehicles punishable as a misdemeanor, the arresting officer, using the uniform traffic citation in paper or electronic form, shall complete the information section and prepare a notice to appear in court, specifying the time and place to appear, have the arrested person sign the agreement to appear as specified, give a copy of the citation to the arrested person and release the person from custody.

B. Whenever a person is arrested for violation of a penalty assessment misdemeanor and elects to pay the penalty assessment, the arresting officer, using the uniform traffic citation in paper or electronic form, shall complete the information section and prepare the penalty assessment notice indicating the amount of the penalty assessment, have the arrested person sign the agreement to pay the amount prescribed, give a copy of the citation along with a business reply envelope addressed to the motor vehicle division in Santa Fe to the arrested person and release the person from custody. No officer shall accept custody or payment of any penalty assessment. If the arrested person declines to accept a penalty assessment notice, the officer shall issue a notice to appear.

C. The arresting officer may issue a warning notice, but shall fill in the information section of the uniform traffic citation in paper or electronic form and give a copy to the arrested person after requiring the person's signature on the warning notice as an acknowledgment of receipt. No warning notice issued under this section shall be used as evidence of conviction for purposes of suspension or revocation of license under Section 66-5-30 NMSA 1978.

D. In order to secure release, the arrested person must give the person's written promise to appear in court or to pay the penalty assessment prescribed or acknowledge receipt of a warning notice.

E. Any officer violating this section is guilty of a misconduct in office and is subject to removal.

F. A law enforcement officer who arrests a person without a warrant for a misdemeanor violation of the Motor Carrier Act [65-2A-1 to 65-2A-40 NMSA 1978], the Criminal Code [Chapter 30, Article 1 NMSA 1978], the Liquor Control Act [Chapter 60, Articles 3A, 5A, 6A, 6B, 6C, 6E, 7A, 7B and 8A NMSA 1978] or other New Mexico law may use the uniform traffic citation in paper or electronic form, issued pursuant to procedures outlined in Subsections B through F of Section 31-1-6 NMSA 1978, in lieu of taking the person to jail.

G. An electronic traffic citation, prescribed by Section 66-8-128 NMSA 1978, is an electronic version of the uniform traffic citation. For the purposes of this section, an electronic citation may be completed instead of a uniform traffic citation; provided, however, that where this section requires a copy of a citation to be given to an arrested person, a physical copy of the citation shall be provided whether a uniform traffic citation or an electronic form of the uniform traffic citation was used. An electronic form of the uniform traffic citation may be signed electronically.

History: 1953 Comp., § 64-8-123, enacted by Laws 1978, ch. 35, § 531; 1981, ch. 360, § 11; 1989, ch. 320, § 6; 2013, ch. 197, § 2.

Cross references. — For penalty assessments, see 66-8-116 to 66-8-119 NMSA 1978.

The 2013 amendment, effective July 1, 2013, provided for the use of electronic citations; in Subsection A, after "uniform traffic citation", added "in paper or electronic form"; in Subsection B, in the first sentence, after "uniform traffic citation", added "in paper or electronic form"; in Subsection C, in the first sentence, after "uniform traffic citation", added "in paper or electronic form"; in Subsection F, after "uniform traffic citation", added "in paper or electronic form", after "procedures outlined in", added "Subsections B through F" and after "Section 31-1-6 NMSA 1978", deleted "Subsections B through E"; and added Subsection G.

Temporary provisions. — Laws 2013, ch. 197, § 5 provided that the department of public safety and the motor vehicle division of the taxation and revenue department shall develop procedures to carry out the provisions of Laws 2013, ch. 197, §§ 1 to 4.

The 1989 amendment, effective July 1, 1989, added Subsection F.

Investigative detention by police officer. — Despite this section's use of the words "arrest" and "custody," when a New Mexico police officer stops a car merely to issue a traffic summons for a minor speeding infraction, that stop is more in the nature of an investigative detention than a traditional arrest. United States v. Gonzalez, 763 F.2d 1127 (10th Cir. 1985).

Choice of persons arrested. — New Mexico law provides that, with certain exceptions, for more serious offenses, persons arrested for motor vehicle violations who are not given warning notices are to be given the choice of appearing in court upon their promise to appear, as evidenced by signing the notice to appear section of a uniform traffic citation, or paying the penalty assessment, as evidenced by signing an agreement to pay the assessment on the uniform traffic citation. Vigil v. N.M. Motor Vehicle Div., 2005-NMCA-057, 137 N.M. 438, 112 P.3d 299.

Advice of police officers. — Police officers are not required to advise drivers arrested for motor vehicle violations of all the possibilities that could happen if one went to court. Vigil v. N.M. Motor Vehicle Div., 2005-NMCA-057, 137 N.M. 438, 112 P.3d 299.

Applicability of forgery statute. — The forgery statute, 30-16-10A NMSA 1978, includes uniform traffic citations among the types of writings which may purport to have legal efficacy. Therefore, motorist who gave officer brother's name and signed brother's name to three traffic citations could be prosecuted for forgery. State v. Wasson, 1998-NMCA-087, 125 N.M. 656, 964 P.2d 820, cert. denied, 125 N.M. 322, 961 P.2d 167.

Arresting officer designates court and offender submits to its jurisdiction. — Whenever the procedure outlined is followed, the arresting officer has the authority to designate the court before whom the offender shall appear. When the arrested person, in order to secure his immediate release, gives his written promise to appear before the court designated in the citation, he voluntarily submits to the jurisdiction of the court, which is retained by the said court to the exclusion of all others until voluntarily and legally relinquished, or until disqualified. 1957-58 Op. Att'y Gen. No. 58-122.

Court within county where offense occurred. — The arresting officer may designate which court the arrested person must appear in, so long as the court is within the county where the offense charged is alleged to have occurred, and the person cited is bound by the arresting officer's designation. 1959-60 Op. Att'y Gen. No. 60-199.

Magistrate designated on citation thereby acquires and retains jurisdiction. — The magistrate designated thereon acquires jurisdiction over the subject matter of the cause. It is fundamental that the court first acquiring jurisdiction of a cause retains it to the exclusion of all others, so long as it does not voluntarily and legally abandon it. 1957-58 Op. Att'y Gen. No. 58-122.

Municipal policeman cannot require offender's appearance in court outside city. — A city or town policeman, when issuing a traffic citation to an adult for the violation of a municipal ordinance, cannot require the offender to appear before a magistrate court located in a precinct outside the limits of the municipality. Of course, if the governing body of the municipality has designated one particular court within the municipality to hear all cases of violations of municipal ordinances, then all traffic citations should be directed to that court. 1959-60 Op. Att'y Gen. No. 60-199.

No appearance unless violation is of state traffic law. — A city or town policeman could issue a traffic citation to an adult for an alleged violation of a state traffic law, and require the person arrested to appear in a court located in a precinct outside the municipality, so long as the court designated is within the county. 1959-60 Op. Att'y Gen. No. 60-199.

Officer may detain accused when no court open. — When a police officer arrests a person for driving while under the influence of alcohol and because of the hour of the night is unable to find a court open, the police officer may detain the accused under arrest until it is possible to take him before a magistrate. 1959-60 Op. Att'y Gen. No. 60-34.