City of Roswell v. Mayer

• Decision Date: 06 November 1967
• Docket Number: No. 8134,8134
• Parties: The CITY OF ROSWELL, New Mexico, Plaintiff-Appellee, v. Len MAYER, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 757

433 P.2d 757

78 N.M. 533

The CITY OF ROSWELL, New Mexico, Plaintiff-Appellee, v. Len MAYER, Defendant-Appellant.

No. 8134.

Supreme Court of New Mexico.

Nov. 6, 1967.

Osborn & Laughlin, Roswell, for appellant.

James B. Stapp, Roswell, for appellee.

OPINION

GALLEGOS, District Judge.

The appellant was tried, found guilty and fined in the municipal court of Roswell, New Mexico, on a charge of driving a motor vehicle on the streets of Roswell while under the influence of intoxicating liquor, in violation of an ordinance of the city. He appealed to the district court of Chaves County where he was tried de novo, found guilty, fined and ordered to surrender his driver's license. He then appealed to this court.

The facts, briefly stated, are as follows. On July 20, 1965, a Mr. Charles Starks observed the appellant approaching him, driving a new Cadillac automobile on a Roswell street. Although the day was dry and clear, the windshield wipers of the Cadillac were going and the driver's head was slumped over on the steering wheel. Starks turned back and followed the Cadillac which was then going nearly 70 miles per hour, according to this witness, and the Cadillac ran off the shoulder of the road a couple of times and crossed the center line as he pulled back into the road.

Starks saw a city policeman in a police car and told the officer what he had observed and pointed the Cadillac out to the officer, who took pursuit of the Cadillac and, after being followed by the police car, the appellant drove to a parking lot and stopped. The policeman testified that when he was following the Cadillac he observed that it swerved and the policeman further testified that, when the appellant stopped at the parking lot, he walked to him and appellant appeared to be intoxicated. When asked by the officer how much he had, appellant said, 'I have had too much. I have just closed a half million dollar deal and I have been out celebrating a little bit.'

Appellant was asked to go to the police station, which he did. This officer further testified that at the station he smelled an odor of some intoxicant on appellant and that appellant was very unsteady on his feet and staggered a little when he walked. Two other policemen at the station testified that they smelled an odor of an intoxicant on appellant's breath and that he was unsteady on his feet.

The appellant admitted at the trial having consumed between five and six bottles of beer during lunch and sometime soon before the officer contacted him, but tended to excuse the manner of his driving on the fact that he had just borrowed the new Cadillac and had never driven such a car before, having had the Cadillac loaned to him by a car dealer who was servicing appellant's wife's car in the meantime.

Two witnesses for appellant, one who saw him about an hour after appellant had gone to the police station with the policeman, and the other one who saw him about two hours after that time, testified that appellant, in their opinion, was not under the influence of intoxicating liquor. The record does not show that appellant was placed in jail and the record shows that he was permitted to go with a friend of his.

The appellant raises three points on appeal: (1) That he was denied due process of law and that his civil and constitutional rights were violated, in that he was searched and arrested by a police officer acting without a warrant; (2) that appellant's conviction was based upon evidence obtained as the product of an unlawful arrest and unlawful search; and (3) that the evidence is insufficient to show, beyond a reasonable doubt, that appellant's ability to operate a motor vehicle was in anywise impaired or affected by his consumption of alcoholic...