State v. Eden, 10799

• Decision Date: 09 May 1989
• Docket Number: No. 10799,10799
• Citation: 108 N.M. 737,1989 NMCA 38,779 P.2d 114
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert J. EDEN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 114

779 P.2d 114

108 N.M. 737

STATE of New Mexico, Plaintiff-Appellee, v. Robert J. EDEN, Defendant-Appellant.

No. 10799.

Court of Appeals of New Mexico.

May 9, 1989.

Certiorari Denied July 27, 1989.

[108 N.M. 738] Hal Stratton, Atty. Gen. and Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Paul S. Wainwright and Lisa E. Jones, Robinson & Wainwright, P.A., Albuquerque, for defendant-appellant.

OPINION

BIVINS, Chief Judge.

Defendant was convicted by a jury of one count of causing great bodily harm by vehicle and one count of operating a snowmobile recklessly. The charges arose out of an accident that took place on Forest Road 44 in the Jemez Mountains on January 11, 1987. While defendant was driving a snowmobile on the forest road, he hit a trailer attached to a pickup, sending his snowmobile airborne. When it landed, it struck a cross-country skier, resulting in serious, disfiguring injuries to the skier.

On appeal, defendant attacks the conviction for great bodily harm by vehicle, contending that a snowmobile is not a "motor vehicle" within the meaning of NMSA 1978, Section 66-1-4(B)(39) (Repl.Pamp.1984). We agree with defendant and reverse his conviction for great bodily harm. In addition, we discuss and affirm the rulings of the trial court concerning (1) the application of SCRA 1986, 5-604 to the facts of this case; and (2) the admissibility of defendant's breath test results, which he contends are the fruit of an illegal arrest, or otherwise inadmissible. We also summarily dispose of defendant's double jeopardy claim. In view of our reversal of the felony conviction, we need not reach defendant's claim of error in denial of his motion to dismiss the grand jury indictment due to alleged improprieties. Misdemeanor charges do not require grand jury presentment. See State v. Marrujo, 79 N.M. 363, 443 P.2d 856 (1968). We affirm defendant's conviction for reckless driving of a snowmobile. While this case was pending on appeal, defendant filed a motion to exclude certain exhibits that were sent to this court but which were not admitted at trial. We grant that motion.

A SNOWMOBILE IS NOT A MOTOR VEHICLE WITHIN THE MEANING OF THE MOTOR VEHICLE CODE

The grand jury indictment charged defendant, inter alia, with one count of causing great bodily injury to the victim by vehicle, while driving under the influence of intoxicating liquors or while driving recklessly or both. The jury acquitted defendant on the alternative count charging him with driving a motor vehicle under the influence, and also on a separate charge of operating a snowmobile while under the influence. It convicted him of the charge of causing great bodily injury while driving a snowmobile recklessly, in violation of NMSA 1978, Sections 66-8-101(B) and 66-8-113(A) (Repl.Pamp.1987).

The crime of great bodily injury by motor vehicle is defined as follows: "Great bodily injury by vehicle is the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle." Sec. 66-8-101(B). This crime is part of the Motor Vehicle Code, NMSA 1978, Sections 66-1-1 through 66-8-140 (Repl.Pamp.1984, Repl.Pamp.1987, Cum.Supp.1988, & Supp.1988) (the Code). The Code defines the term "motor vehicle" as follows: " '[M]otor vehicle' means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from batteries or from overhead trolley wires, but not operated upon rails[.]" Sec. 66-1-4(B)(39). The term "vehicle" is defined in the Code as follows: " '[V]ehicle' means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, including any frame, chassis or body of any vehicle or motor vehicle, except devices moved by human power or used exclusively upon stationary rails or tracks[.]" Sec. 66-1-4(B)(74).

Our courts have previously interpreted the language of the statutes in order to decide whether a particular mechanical device is or is not a motor vehicle within the meaning of the Code. Although none of these cases involved the issue presented by the present case, we consider them in analyzing the legislature's intent in imposing criminal liability for great bodily injury by vehicle. We conclude that the phrase "is or may be transported or drawn upon a highway," see Section 66-1-4(B)(74), indicates a legislative intent to define a device typically and lawfully used upon a highway to transport persons and property.

In Smith Machinery Corp. v. Hesston, Inc., 102 N.M. 245, 694 P.2d 501 (1985), the supreme court held that a windrower, a mechanical device used for farming, is not a motor vehicle within the meaning of the Motor Vehicle Dealers Franchising Act, NMSA 1978, Sections 57-16-1 to -16 (Repl.Pamp.1987) (the Act). Although the Act defined the term "motor vehicle" in slightly different language, the supreme court, in considering the issue, considered the Code and cases cited under it. The court held that, although a windrower is self-propelled, it is not a motor vehicle within the meaning of the Code because it is not typically used on the highways. See also Gibbons & Reed Co. v. Bureau of Revenue, 80 N.M. 462, 465, 457 P.2d 710, 713 (1969) (holding a mole, a piece of machinery used for mining, is not a vehicle within the meaning of the Code because it is not a device upon, or by which, persons or property may be transported upon a highway); Pittsburgh & Midway Coal Mining Co. v. Revenue Div., Taxation & Revenue Dep't, 99 N.M. 545, 559, 660 P.2d 1027, 1041 (Ct.App.), appeal dismissed, 464 U.S. 923, 104 S.Ct. 323, 78 L.Ed.2d 296 (1983) (dragline is not a motor vehicle under the Code because it is not a machine that can be driven or used on the highway); Kaiser Steel Corp. v. Revenue Div., Taxation & Revenue Dep't, 96 N.M. 117, 628 P.2d 687 (Ct.App.1981) (holding a dragline and a continuous miner powered by overhead electrical cables are not motor vehicles under the Code, in part because they are not typically used on the highways).

Defendant contends that a snowmobile may not, as a matter of law, be used on a public road, street, or highway. The state contends that such operation is lawful. We agree with defendant.

The legislature has addressed the subject of snowmobiles in a statute that is not part of the Code. See NMSA 1978, Secs. 66-9-1 to -13 (Repl.Pamp.1987) (the Snowmobile Act). The Snowmobile Act defines a snowmobile as a "motorized vehicle designed for operation on snow or ice, principally for recreational purposes." Sec. 66-9-2(A); see also Vandolsen v. Constructors, Inc., 101 N.M. 109, 114, 678 P.2d 1184, 1189 (Ct.App.1984) (snowmobiles are designed for off-road recreational use).

In addition, the Snowmobile Act specifically addresses the issue of whether a snowmobile can be operated on the highways. See Sec. 66-9-9. By law, a snowmobile may not be operated on any limited access highway or freeway at any time. Sec. 66-9-9(A). A snowmobile is permitted to cross a street or highway only after coming to a complete stop; even then, it must yield to oncoming traffic, and cross in the most direct manner possible. Sec. 66-9-9(B). A snowmobile may be operated on public roads, streets, or highways only when the road, street, or highway is closed to automotive traffic, or is not regularly plowed or maintained, or if permitted by local ordinance or resolution adopted by the governing body of a municipality or county in regulating streets and highways under its jurisdiction. Sec. 66-9-9(D)(1), (4). In addition, the Snowmobile Act specifically provides for operation of snowmobiles during periods of emergency or special events of limited duration. Sec. 66-9-9(D)(2), (3). In short, it is apparent that, by law, a snowmobile may not be operated on the public highways.

The state argues that at least one state has held that a snowmobile is a motor vehicle within the terms of that state's motor vehicle code. See Melby v. Commissioner of Pub. Safety, 367 N.W.2d 527 (Minn.1985). In Melby, the Minnesota Supreme Court held Minnesota's implied consent law applied to drivers of snowmobiles when the snowmobile was being operated on the public streets or highways. The critical issue in that case was whether the snowmobile operator had been operating the snowmobile on a highway within the meaning of the statutes. The statute governing snowmobiles made the statutes governing motor vehicles applicable when the snowmobile was operated on a street or highway. Under these circumstances, it appears the Minnesota statutory scheme clearly evidenced a legislative intent not present in the New Mexico statutes.

Moreover, we can hardly ignore the fact that the weather and road conditions in Minnesota are substantially different from those in New Mexico. In Minnesota it may be sensible, even necessary at times, to operate a snowmobile on the public streets or highways. In New Mexico, this is prohibited by law.

Finally, the state argues that the snowmobile should be considered a motor vehicle because the Snowmobile Act "does not proscribe the actual conduct and prohibited consequence caused by the Defendant's criminal act." This argument is best addressed to the legislature. It is for the legislature to determine what conduct shall be prohibited and what penalty shall be exacted for the conduct. See, e.g., State v. Allen, 77 N.M. 433, 423 P.2d 867 (1967). The Snowmobile Act prohibits the reckless operation of a snowmobile and provides such reckless operation is a petty misdemeanor. Secs. 66-9-8(B)(1), 66-9-13. We cannot disturb the legislature's judgment in this matter.

We conclude that the legislature's choice of language in the Code, together with the enactment of the Snowmobile Act, indicates an intent that the term "motor vehicle" does not include a snowmobile. Accordingly, we reverse defendant's conviction on Count I and remand to the trial court with instructions to vacate defendant's conviction on...