2021 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 7 - Traffic Laws; Signs, Signals and Markings; Accidents; Weight and Size; Traffic Safety
Part 4 - TRAFFIC LAWS GENERALLY
Section 66-7-301 - Speed regulation.
A. No person shall drive a vehicle on a highway at a speed greater than:
(1) fifteen miles per hour on all highways when passing a school while children are going to or leaving school and when the school zone is properly posted;
(2) thirty miles per hour in a business or residence district;
(3) fifty-five miles per hour on a county road, as defined in Section 66-7-304 NMSA 1978, without a posted speed limit;
(4) seventy-five miles per hour; and
(5) the posted speed limit in construction zones posted as double fine zones or other safety zones posted as double fine zones as designated by the department of transportation; provided that the posted speed limit shall be determined by an engineering study performed by the department of transportation.
B. In every event, speed shall be so controlled by the driver as may be necessary:
(1) to avoid colliding with a person, vehicle or other conveyance on or entering the highway;
(2) to comply with legal requirements as may be established by the department of transportation or the New Mexico state police division of the department of public safety and the duty of all persons to use due care; and
(3) to protect workers in construction zones posted as double fine zones or other safety zones posted as double fine zones as designated by the department of transportation.
C. The speed limits set forth in Subsection A of this section may be altered as authorized in Section 66-7-303 NMSA 1978.
History: 1953 Comp., § 64-7-301, enacted by Laws 1978, ch. 35, § 405; 1985, ch. 188, § 1; 1989, ch. 318, § 29; 1989, ch. 320, § 1; 1996, ch. 81, § 2; 2002, ch. 71, § 1; 2015, ch. 45, § 1.
ANNOTATIONSANNOTATIONSCross references. — For provisions that references to English measurement units also refer to equivalent metric units, see 66-1-5 NMSA 1978.
For construction zones, see 66-7-303.1 NMSA 1978.
For the penalty assessment for violation, see 66-8-116 NMSA 1978.
The 2015 amendment, effective January 1, 2016, limited the speed limit to fifty-five miles per hour on county roads that do not have a posted speed limit; in Subsection A, added Paragraph (3) and renumbered the succeeding paragraphs accordingly; in Paragraph (5), after "designated by the", deleted "highway and transportation", after the first occurrence of "department", added "of transportation", after "performed by the", deleted "state highway and transportation", and after the second occurrence of "department", added "of transportation"; in Subsection B, Paragraph (2), after "established by the", deleted "state highway and transportation", and after the first occurrence of "department", added "of transportation"; and in Subsection B, Paragraph (3), after "designated by the", deleted "highway and transportation", and after "department", added "of transportation".
The 2002 amendment, effective May 15, 2002, inserted "posted as double fine zones or other safety zones posted as double fine zones as designated by the highway and transportation department" in Subsections A(4) and B(3).
The 1996 amendment, effective May 15, 1996, in Subsection A, added Paragraph (3), deleted former Paragraphs (3) and (4) relating to speed limits on urban interstate highways which are part of the national system of interstate and defense highways, and resdesignated former Paragraph (5) as Paragraph (4); deleted former Subsection B which pertained to the maximum speed limits established in former Paragraphs A(3) and A(4), and redesignated the following subsections accordingly; and made a stylistic change in Paragraph (2) of Subsection B.
The 1989 amendment, effective July 1, 1989, rewrote the section.
I. GENERAL CONSIDERATION.
Proof of posted speed limits. — A prima facie case for a speeding violation is established when the state presents evidence that the speed limit was posted on a visible sign along the roadway, giving drivers proper notice of the designated speed limit, and a driver exceeds the posted speed limit. State v. Tarin, 2014-NMCA-080.
Where defendant was cited for speeding while traveling at a speed of seventy-one miles per hour in a posted forty-five miles per hour speed limit zone; the location was not in a school zone, a business district, a residential district or a construction zone; and defendant claimed that the state failed to present sufficient evidence that the speed limit was forty-five miles per hour because the state failed to produce an engineering survey and traffic investigation set forth in 66-7-303(A) NMSA 1978 to prove that the legally enforceable speed limit of seventy-five miles per hour set forth in 66-7-301(A)(3) NMSA 1978 had been reduced to forty-five miles per hour, the state was not required to present an engineering survey and traffic investigation as a prima facie element in the charge of speeding, the posted speed limit of forty-five miles per hour was sufficient to establish the statutory speed limit under 66-7-301 NMSA 1978. State v. Tarin, 2014-NMCA-080.
Where defendant was cited for speeding while traveling at a speed of seventy-one miles per hour in a posted forty-five miles per hour speed limit zone; the citing officer testified that the officer had patrolled and passed through the area numerous times and had personal knowledge of the posted speed limit, the officer observed defendant coming around a curve at a high rate of speed, the officer used a radar device to clock defendant's speed at seventy-one miles per hour, and the posted speed limit was forty-five miles per hour; the officer described three places in the area where signs were posted stating that the speed limit was forty-five miles per hour; and defendant claimed that the officer's evidence was insufficient to prove the speed limit because the officer did not have personal knowledge that the speed limit was forty-five miles per hour and that the officer's testimony was based on lack of personal knowledge and inadmissible hearsay, the state presented sufficient evidence that the posted speed limit was forty-five miles per hour and the defendant was traveling in excess of the posted limit. State v. Tarin, 2014-NMCA-080.
Application to "business or residence" district. — Section 66-7-301(A)(2) NMSA 1978 applies to districts that are residential in nature or zoning, or business in nature or zoning, or have the characteristics of, and are zoned for, both types of uses. State v. Moseley, 2014-NMCA-033, cert. denied, 2014-NMCERT-002.
Where defendant was driving at a speed of thirty-five miles per hour in an area that contained both residences and businesses; no speed limit signs were posted in the area; and the district court held that the thirty mile per hour speed limit in Section 66-7-301(A)(2) NMSA 1978 applies only if an area is either exclusively residential in nature or exclusively business in nature, defendant was not speeding at the time of the stop, and the officer who stopped defendant did not have reasonable suspicion for the stop, the district court's interpretation of Section 66-7-301(A)(2) NMSA 1978 was not consistent with the intent of the legislature that the statute apply in mixed residential and business areas, as well as in exclusively residential and exclusively business areas. State v. Moseley, 2014-NMCA-033. cert. denied, 2014-NMCERT-002.
Speeding and running stop sign are different offenses with different penalties. United States v. Clemente E., 392 F.3d 1164 (10th Cir. 2004).
Stop sign does not create a "speed limit". United States v. Clemente E., 392 F.3d 1164 (10th Cir. 2004).
Altered speed becomes speed limit after alteration. — Sections 64-18-1.1, 1953 Comp. (similar to this section) and 66-7-303 NMSA 1978 authorize the alteration of speed limits. The altered speed then becomes the speed limit. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860.
Speed limit sign is effective at the point where the sign is located. — Where defendant was convicted of speeding for driving 55 miles per hour in a posted 45 mile-per-hour speed zone, and where defendant argued that speed limit statutes should be construed to allow motorists to accelerate in advance of an increased speed limit sign once the sign is visible, defendant's conviction was proper, because the plain language of 66-7-303(B) NMSA 1978 indicates that a speed limit is effective at the point where the sign is located and continues to be in effect until it ends at the next different speed limit sign. State v. Martinez, 2019-NMCA-049.
The district court did not abuse its discretion in finding that radar evidence was admissible without requiring expert testimony. — Where defendant was charged with speeding, and where defendant argued that the state failed to present an adequate scientific foundation to establish the reliability of the radar technology used to determine his speed, the district court did not abuse its discretion in admitting evidence of defendant's speed because radar technology has generally been accepted as reliable and the state established a proper foundation for the accuracy of the particular radar unit used in this case. State v. Garcia, 2020-NMCA-004.
Court acquired jurisdiction over speeding prosecution even though the citation was not made under oath and the complaint failed to allege the speed and speed limit and that the appellant was the person who committed the offense. State v. Mesecher, 1964-NMSC-211, 74 N.M. 510, 395 P.2d 233.
II. SCHOOL ZONES.
Provision applies to children under 18 years old. — Section 64-18-1.1, 1953 Comp., applies to children who are under 18 years of age. The speed limit of 15 m.p.h. would apply "while children [under the age of 18 years] are going to, or leaving school, and when the school zone is properly posted." Weiland v. Vigil, 1977-NMCA-003, 90 N.M. 148, 560 P.2d 939, cert. denied, 90 N.M. 255, 561 P.2d 1348 (rendered under prior law).
Posting of school zone sign is condition precedent to establishment of a school zone. Weiland v. Vigil, 1977-NMCA-003, 90 N.M. 148, 560 P.2d 939, cert. denied, 90 N.M. 255, 561 P.2d 1348.
III. NEGLIGENCE.
A. DUE CARE.
Due care not obviated merely because not exceeding limit. — Even though motorist was not exceeding speed limit, need for the exercise of due care was not thereby obviated, particularly in view of statutory provision that automobile should only be operated at such speed as was consistent with safety and proper use of the highways. Langenegger v. McNally, 1946-NMSC-017, 50 N.M. 96, 171 P.2d 316.
Due care not obviated because driver has right-of-way. — Fact that right-of-way was in plaintiff's favor did not obviate duty of plaintiff's exercising due care when defendant motorist entered intersection while plaintiff was still some 200 feet away. Langenegger v. McNally, 1946-NMSC-017, 50 N.M. 96, 171 P.2d 316.
Traveling five m.p.h. through yellow flashing light intersection not negligence. — Two trucks approximately 100 yards from an intersection were traveling 35 to 40 m.p.h. and were slowing down so that by the time the trucks reached the intersection (controlled by a yellow flashing light) one truck was going five m.p.h. and the other slightly faster. These facts show neither a lack of ordinary care nor speed amounting to a failure to use due care in violation of Section 64-18-1.1, 1953 Comp. (similar to this section). Butcher v. Safeway Stores, Inc., 1967-NMCA-029, 78 N.M. 593, 435 P.2d 212.
Not slowing or stopping not failure to exercise ordinary care. — Where automobile was being driven between 40 or 45 m.p.h. at night and driver, on seeing an approaching truck which did not attempt to keep a straight course, but meandered and weaved, and did not dim light, dimmed the lights on his automobile and pulled over to the right in order to give the truck all of the room possible, it cannot be said that the driver of such automobile failed to exercise ordinary care in not slowing or stopping his automobile. Cain v. Bowlby, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).
Not error to find excessive speed even when within limit. — A finding that motorist was traveling too fast may not be erroneous even though he was not driving in excess of the speed limit. Langenegger v. McNally, 1946-NMSC-017, 50 N.M. 96, 171 P.2d 316.
Motorists held to see what person exercising due care sees. — Motorists are responsible for seeing that which a reasonably prudent person, exercising due care, should have seen. Failure properly to evaluate what is seen is as much an element of negligent lookout as not to see the course of danger at all. A motorist must exercise care commensurate with the situation confronting him. Horrocks v. Rounds, 1962-NMSC-048, 70 N.M. 73, 370 P.2d 799.
Negligence to fail to be able to avoid discernible obstruction. — Failure of driver to operate vehicle at such a speed that it can be stopped in time to avoid an obstruction discernible within his length of vision ahead of him may constitute negligence. Duncan v. Madrid, 1940-NMSC-027, 44 N.M. 249, 101 P.2d 382; Lopez v. Townsend, 1938-NMSC-058, 42 N.M. 601, 82 P.2d 921.
Jury question whether speed was too great to avoid collision. — Defendant, having difficulty seeing the road because of the snow, traveled about 25 to 30 feet behind plaintiff's car. Plaintiff's car traveled over into the oncoming lanes of traffic and when she saw this she brought her car to a stop. Defendant saw no brake lights and was unable to stop his car. These facts created a jury question on issue of defendant's negligence (going too fast) or plaintiff's contributory negligence (improper stopping). Tafoya v. Whitson, 1971-NMCA-098, 83 N.M. 23, 487 P.2d 1093, cert. denied, 83 N.M. 22, 487 P.2d 1092.
"Unavoidable accident" is an accident not occasioned in any degree, either directly or remotely, by want of such care or prudence as the law holds every man bound to exercise; and if the accident complained of could have been prevented by either party by means suggested by common prudence, it is not unavoidable. Horrocks v. Rounds, 1962-NMSC-048, 70 N.M. 73, 370 P.2d 799.
B. PER SE.
Negligence per se to operate vehicle at prohibited speed. — Operation of an automobile at a speed prohibited by statute or ordinance is negligence per se. Clay v. Texas-Arizona Motor Freight, Inc., 1945-NMSC-023, 49 N.M. 157, 159 P.2d 317.
Exceeding speed limit does not mandate finding of negligence. — The fact that the defendant was exceeding the speed limit does not mandate or preclude a finding of negligence. Marcus v. Cortese, 1982-NMCA-090, 98 N.M. 414, 649 P.2d 482.
Operating truck at speed in violation of statute constituted negligence per se. H.W. Bass Drilling Co. v. Ray, 101 F.2d 316 (10th Cir. 1939).
One who violates statute is negligent as matter of law, unless excused from such violation. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860.
Failure to reduce speed to statutory requirement constituted negligence per se in case where truck brakes were insufficient to slow truck on downhill and truck ran into roadblock, even though government was assumed guilty of negligence for posting insufficient warning. United States v. Byers, 225 F.2d 774 (10th Cir. 1955).
Proof of statute violation is one method of proving negligence. — Proof of violation of a statute is one method of proving negligence. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860.
Driving in excess of limit establishes negligence due to speed. — Facts establishing that defendant was driving in excess of the speed limit and that she failed to control her speed to avoid colliding with a pickup which was entering the highway is evidence of negligence due to speed. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860.
Excessive speed not inferable from mere fact accident happened. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.
Instruction of excessive speed not given when no evidence thereof. Embrey v. Galentin, 1966-NMSC-191, 76 N.M. 719, 418 P.2d 62.
"Rule of reason" criminal statute sufficiently definite. — A statute defining what some courts refer to as a "rule of reason" in making it a crime to drive an automobile in such an uncontrolled manner as to collide with some object, including the roadbed, and making it a crime to operate a motor vehicle without due care, is sufficiently definite to apprise the defendant of the charges against him when he is complained against under such a statute. 1959 Op. Att'y Gen. No. 59-148.
Violation is offense against public health and safety. — Section 64-18-1.1, 1953 Comp. (similar to this section) meets more than the minimal requirements for definiteness. 1959 Op. Att'y Gen. No. 59-154.
Cannot prosecute if both offenses grant concurrent jurisdiction. — The offense of failure to use due care is considered a lesser offense and that of reckless driving is considered a greater offense, such that if there is concurrent jurisdiction over either offense, prosecution for one would be a bar to prosecution for the other, assuming that both are misdemeanors, with either a justice court (now magistrate court) or a district court able to exercise jurisdiction. 1964 Op. Att'y Gen. No. 64-147.
Truck speed limit formerly based on manufacturer's rated capacity. — The former language of Section 64-18-1.1, 1953 Comp. is clear and unambiguous. It sets a speed limit on trucks based on the manufacturer's rated capacity of the vehicle. No reference is made in the statute to the overall weight or size of the unit, nor is any distinction made as to trucks and trailers. All trucks of a rated capacity of less than two tons may operate on highways in open country during the day at a speed of 70 miles per hour regardless of the weight or size of the overall unit. 1957 Op. Att'y Gen. No. 57-194 (rendered under prior law).
School authorities responsible for placing and removing signs. — The responsibility for placing and removing the signs provided for is squarely upon the school authorities. It should be brought to their attention that these signs may be upon the streets only at certain times throughout the day and that they should be removed when not authorized. 1955 Op. Att'y Gen. No. 55-6297 (rendered under prior law).
Failure to use due care even if not exceeding limit. — A charge of failure to use due care can be made even though the driver was not exceeding a posted speed limit and even though no accident resulted from such overt actions. 1964 Op. Att'y Gen. No. 64-147.
Facts justifying reckless driving charge also sustain due care failure. — If the facts of a particular case could justify filing of a charge of reckless driving, the facts necessary to sustain a charge of failure to use due care would also be present so that either charge would be justified. 1964 Op. Att'y Gen. No. 64-147.
Person may be cited for failure to use due care. — A person can validly be cited, under Section 64-18-1.1, 1953 Comp. (similar to this section), for failure to use due care, provided that the act or acts constituting the offense are set out in the complaint. 1964 Op. Att'y Gen. No. 64-147.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 218, 317.
Custom or practice of motor vehicles as affecting question of negligence as regards speed, 77 A.L.R.2d 1327.
Duty of motor vehicle driver approaching place where children are playing or gathered, 30 A.L.R.2d 5.
Application of "assured clear distance ahead" or "radius of lights" doctrine to accident involving pedestrian crossing street or highways, 31 A.L.R.2d 1424.
Meaning of "residence district," "business district," "school area," and the like, in statutes and ordinances regulating speed of motor vehicles, 50 A.L.R.2d 343.
What amounts to reckless driving of motor vehicle within statute making such a criminal offense, 52 A.L.R.2d 1337.
Instructions to jury as to unavoidable accident involving speed of automobile, 65 A.L.R.2d 12.
Construction, application and effect, in civil motor vehicle accident cases, of "slow speed" traffic statutes prohibiting driving at such a slow speed as to create danger, 66 A.L.R.2d 1194.
Contributory negligence in riding or driving with insufficient or no lights as affected by speed of automobile, 67 A.L.R.2d 118, 62 A.L.R.3d 560, 62 A.L.R.3d 771, 62 A.L.R.3d 844.
Indefiniteness of automobile speed regulations as affecting validity, 6 A.L.R.3d 1326.
Speeding prosecution based on observation from aircraft, 27 A.L.R.3d 1446.
Competency of nonexpert's testimony, based on sound alone, as to speed of motor vehicle involved in accident, 33 A.L.R.3d 1405.
Motor vehicle operator's liability for accident occurring while driving with vision obscured by smoke or steam, 32 A.L.R.4th 933.
61A C.J.S. Motor Vehicles §§ 641 to 650.
Admissibility into evidence, in civil action, of tachograph or similar paper or tape recording of speed of motor vehicle, railroad locomotive, or the like. 18 A.L.R.6th 613.
