Saturday, August 20, 2005


The New Mexico Supreme Court has reviewed its position on one aspect of double jeopardy. The Court had previously ruled that double jeopardy did not necessarily bar a prosecution in District Court for a felony, after the accused had pleaded guilty to an included petty misdemeanor in a Court of limited jurisdiction (municipal, metropolitan, magistrate). Our Court looked at the issue again, and split three to two, but upheld the previous rulings. Justice Patricio M. Serna wrote the opinion, and Chief Justice Richard C. Bosson and Justice Petra Jimenez Maes concurred. The Court’s rule is referred to as the “jurisdictional exception.” The case is State v. Rodriguez, 2005-NMSC-019 (June 28, 2005). Two Justices disagreed on this point.

A different rule, according to Justice Serna, would “ . . . allow defendants to abuse the multi-level judicial system which exists in New Mexico and in other jurisdictions.” The Court pointed out that under a different rule, a defendant could plead guilty to all misdemeanor charges arising from a criminal act in magistrate court and never be in jeopardy of a felony prosecution involving similar evidence in the district court.

In Justice Serna’s words, “[R]eason and logic do not support a rule where one guilty of a crime of homicide by vehicle may escape a possible sentence of three years imprisonment by the expedient of pleading guilty to a charge of DWI or reckless driving where the penalty may be as low as a $25.00 fine and five days in jail.” This Rodriguez case did not involve DWI, nor reckless driving, but the words of the Justice apply too often in New Mexico.

Recently a young man pleaded guilty in Northern New Mexico to traffic offenses, including being on the wrong side of the highway. He was fined $125.00, no jail time. His vehicle, across the line, hit a motorcycle and killed one person and severely injured another. Steve Fox wrote an excellent article about it in a column in the Albuquerque Tribune a few days ago. He states that there were witnesses who claimed the offender was racing with another vehicle at the time of the accident.

When two drivers race on the public highway, and one vehicle is involved in an accident which results in death to another person, both of the drivers of the racing vehicles may be guilty of homicide by vehicle. It is not necessary for both racing vehicles to hit the victim vehicle. Here was a possible case of vehicular homicide against two drivers, though they were juveniles, and the case was handled as a minor traffic offense.

Perhaps this recent homicide case could still be prosecuted as a felony vehicular homicide case (in Children’s Court). This Rodriguez case, with Justice Serna’s opinion, would support such a prosecution, on the basis that the plea to the traffic offenses occurred in a Court of limited jurisdiction, a Court which had no jurisdiction to accept a plea of guilty of the greater offense (vehicular homicide).

The State’s argument would be that because the Judge had no jurisdiction to try the felony charge, nor to accept a plea of guilty to the felony charge, the acceptance of a plea of guilty, and the punishment, of the lesser-included offense of [Steve Fox reports that it was reckless driving], would not bar prosecution of the greater offense, felony vehicular homicide.

Admittedly, this is technical, and it may be that Justice Serna’s ruling would not apply, because the involvement of the District Attorney in this plea in this case was such that he was not surprised at the proceedings. The District Attorney did not simply discover that the offending driver had rushed in and pleaded guilty to a lesser offense in a limited-jurisdiction Court, to avoid felony prosecution. The District Attorney allowed that to happen, after making a decision not to prosecute on the felony charges.

Disclaimer. I am not looking for nor accepting such business. I assume that the family of the deceased motorcyclist, and the crippled victim, have counsel for civil law purposes. They may want to seek a further opinion from the Attorney General on the criminal charges, in view of Justice Serna’s June 28, 2005 opinion. It may be that nothing further can be done; and it may be that the District Attorney (the case was transferred to the District Attorney from Clovis) was right in his assessment that the case was a mere careless driving, at the worst, and thus clearly was not vehicular homicide, which requires reckless driving, or racing on the highway.

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