2019 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Part 2 - TRAFFIC OFFENSES
Section 66-8-138 - Consumption or possession of alcoholic beverages in open containers in a motor vehicle prohibited; exceptions.
A. No person shall knowingly drink any alcoholic beverage while in a motor vehicle upon any public highway within this state.
B. No person shall knowingly have in the person's possession on the person's body, while in a motor vehicle upon any public highway within this state, any bottle, can or other receptacle containing any alcoholic beverage that has been opened or had its seal broken or the contents of which have been partially removed.
C. It is unlawful for the registered owner of any motor vehicle to knowingly keep or allow to be kept in a motor vehicle, when the vehicle is upon any public highway within this state, any bottle, can or other receptacle containing any alcoholic beverage that has been opened or had its seal broken or the contents of which have been partially removed, unless the container is kept in:
(1) the trunk of the vehicle or in some other area of the vehicle not normally occupied by the driver or passengers if the vehicle is not equipped with a trunk. A utility or glove compartment shall be deemed to be within the area occupied by the driver and passengers;
(2) the living quarters of a motor home or recreational vehicle;
(3) a truck camper; or
(4) the bed of a pick-up truck when the bed is not occupied by passengers.
D. This section does not apply to any passenger in a bus, taxicab or limousine for hire licensed to transport passengers pursuant to the Motor Carrier Act [65-2A-1 to 65-2A-40 NMSA 1978] or proper legal authority.
History: 1978 Comp., § 66-8-138, enacted by Laws 1989, ch. 316, § 2; 1999, ch. 143, § 1; 2001, ch. 28, § 1; 2001, ch. 120, § 1; 2013, ch. 172, § 1.
ANNOTATIONSRepeals and reenactments. — Laws 1989, ch. 316, § 2 repealed 66-8-138 NMSA 1978, as enacted by Laws 1978, ch. 35, § 546, relating to operation of motor vehicle by person under twenty-one while possessing alcoholic liquor, and enacted a new section, effective June 16, 1989.
Cross references. — For driving while intoxicated, see 66-8-102 NMSA 1978.
For punishment of children for traffic violations, see 32A-2-29 NMSA 1978.
The 2013 amendment, effective June 14, 2013, eliminated certain exceptions to the prohibition against open containers of alcoholic beverages in a motor vehicle; in Paragraph (1) of Subsection B, added the second sentence; deleted the unnumbered paragraph following Paragraph (4) of Subsection B, which provided that a glove compartment was within the area occupied by the driver; and deleted former Subsection D, which provided that this section did not apply to persons who carry alcoholic beverages pursuant to a doctor's recommendation or to clergymen who carry alcoholic beverages for religious purposes in their motor vehicle.
The 2001 amendment, effective June 15, 2001, inserted "not" preceding "occupied by passengers" in Paragraph C(4); and deleted former Paragraph D(3), which read "any person who is employed by a person licensed by the Liquor Control Act, while discharging his duties as an employee".
The 1999 amendment, effective July 1, 1999, deleted "the driver or owner of or" following "does not apply to" in the second sentence of the undesignated paragraph following Subsection C(4) and substituted "Liquor" for "Alcoholic Beverage" in Subsection D(3).
Meaning of "possession on his person". — The phrase "on his person" in Subsection B of Section 66-8-138 NMSA 1978 means that the open container statute cannot be violated by mere constructive possession of an open container and requires more than facts merely showing that an open container was located within a defendant's vehicle, but it does not go so far as requiring that a defendant must be observed in actual physical possession of an open container. State v. Nevarez, 2010-NMCA-049, 148 N.M. 820, 242 P.3d 387, cert. denied, 2010-NMCERT-006, and cert. quashed, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Where the court instructed the jury that to find defendant guilty of possession of an open container of alcohol, the state had to prove, among other elements, that defendant had in his immediate possession an open container of alcohol with alcohol remaining in it; the court declined to give the jury a curative instruction in response to the jury's question whether immediate possession meant in the vehicle or in the driver's possession; police officers testified that the passengers in defendant's vehicle all had open containers of beer which they were drinking; and there was no evidence to link any particular open container in the vehicle specifically to defendant's possession such that it might be considered on defendant's person, the jury instruction did not accurately capture or describe the crime of possession of an open container and the uncured jury instruction resulted in fundamental error. State v. Nevarez, 2010-NMCA-049, 148 N.M. 820, 242 P.3d 387, cert. denied, 2010-NMCERT-006, and cert. quashed, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Conviction based upon properly obtained evidence. — Where the warrantless entry by police officers into the car to seize a gun was supported by exigent circumstances, the officers' reasonable suspicion that defendant was armed and dangerous, defendant's admission that he had been drinking was the fruit of a lawful entry into the car and therefore defendant's claim that his conviction under this section was based upon evidence obtained in violation of his constitutional rights was rejected. State v. Garcia, 2004-NMCA-066, 135 N.M. 595, 92 P.3d 41, cert. granted, 2004-NMCERT-005, 135 N.M. 566, 92 P.3d 12.
Mere presence of open container. — The mere presence of defendant in a vehicle in which an open container of alcohol was found was not sufficient to create an individualized suspicion that defendant was violating the open container law. State v. Patterson, 2006-NMCA-037, 139 N.M. 322, 131 P.3d 1286, cert. denied, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.
