The Eastern New Mexico News - Serving Clovis, Portales and the Surrounding Communities

Supreme court upholds dismissal


June 14, 2020

SANTA FE — The New Mexico Supreme Court on Thursday ruled a Portales man’s conviction for fleeing law enforcement was correctly overturned. That’s because the Curry County Sheriff’s Office vehicle involved in the pursuit wasn’t adequately marked.

The case of the late Roy Montano was combined with a similar case against William Daniel Martinez of San Juan County.

Montano and Martinez were charged for aggravated fleeing a law enforcement officer in 2013 and 2014, respectively. Both defendants argued the sport utility vehicles that chased them bore no decals, insignia or lettering to identify them as law enforcement vehicles. The charge requires the accused drive recklessly after being signaled to stop during a pursuit by a “uniformed law enforcement officer in an appropriately marked law enforcement vehicle.”

• Martinez’ case was dismissed in district court, but the state appealed. The Court of Appeals reversed the dismissal and ruled Martinez was pursued by an “appropriately marked law enforcement vehicle.”

• Montano was convicted in district court, but the appeals court overturned the conviction because the pursuing Curry County sheriff’s deputy was wearing civilian clothes that “did not constitute a uniform” at the time of the stop.

In the majority opinion written by Justice Michael E. Vigil, the court looked at the terms “uniform” and “appropriately marked” and found neither case met the statutory requirements.

“Activating the red and blue LED lights and siren ... does not automatically transform an unmarked police vehicle into a marked police vehicle,” Vigil wrote.

Eric Dixon, Montano’s attorney, said he was pleased with the decision in a release to The News.

“This is a safety issue to prevent people from misidentifying themselves as police officers,” Dixon said. “There is no way to tell whether an officer in pursuit in an unmarked vehicle in street clothes is an officer or not. This decision will protect the public.”

Chief Justice Judith Nakamura wrote in dissent, noting the majority’s strict interpretation paves the way for offenders to evade vehicles they know to be law enforcement and later feign ignorance because the vehicles lacked decals and insignia they’d have never seen anyway.

“Defendants may never be in a position to see markings on the body of a pursuing vehicle, particularly at night, given that this will usually entail a law enforcement vehicle following behind a defendant’s vehicle,” Nakamura wrote. “Nevertheless, the majority insists that ‘appropriately marked’ must include prominent insignias, logos, or decals on the body of the vehicle itself, rather than emergency lights, sirens, or other ‘signaling’ equipment. The distinction is perplexing.”

District Attorney Andrea Reeb said she agreed with Nakamura’s dissent, and that the intent of the statutes was to protect innocent bystanders from high-speed chases. She believes in the future undercover law enforcement would be able to call for assistance from a marked unit, but said it’s hard to use common sense and believe Montano did not know he was being pursued by law enforcement.

Curry County Sheriff Wesley Waller was also disappointed in the decision. He highlighted Nakamura’s dissent and noted that during the pursuit, Montano “clearly knew that a law enforcement officer was attempting to stop him” as he ran several stop signs, repeatedly drove into oncoming traffic lanes and traveled at excessive speeds before finally crashing into a curb.

He added Montano was also charged with no registration, no proof of insurance and driving with a suspended license and had an outstanding warrant from Bernalillo County.

“We will adapt to this decision,” Waller said, “but time will tell as to the precedent it may set.”

Following Montano’s 2017 death, which was unrelated to the 2013 chase, the court appointed a substitute defendant so the appeal could continue. The practice is allowed when the court believes a ruling is in the best interest of society.


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