August 28, 2009 – State of New Mexico v. Anthony Jacquez, No. 28,419

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: August 28, 2009

NO. 28,419

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ANTHONY JACQUEZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Mike Murphy, District Judge

Gary K. King, Attomey General

Anita Carlson, Assistant Attomey General

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

GARCIA, Judge.
{1} 	Defendant appeals his convictions, pursuant to a conditional plea agreement,
for felony driving while under the influence (DWI), driving while license is suspended
or revoked, and no proof of insurance. On appeal, Defendant argues that the initial
stop of his vehicle was unlawful and that the evidence that resulted from the traffic
stop should therefore be suppressed. Defendant also argues that our registration plate
statute, NMSA 1978, § 66-3-18(A) (2007), is unconstitutionally void for vagueness
and therefore could not provide a lawful basis for the stop. We are not persuaded by
Defendant’s arguments and affirm.
BACKGROUND
{2} 	At the suppression hearing, Deputy Barde testified that, as he passed
Defendant’s vehicle while driving in the opposite direction, he noticed that
Defendant’s vehicle had a cracked windshield. Based on this observation, Deputy
Barde made a U-turn and followed Defendant’s vehicle. 	While driving behind
Defendant, Deputy Barde’s view of the registration sticker on Defendant’s license
plate was blocked by a silver frame placed around the plate, and he was unable to see
the expiration date of the sticker. Based on the obstruction of the registration sticker,
Deputy Barde activated his emergency lights and initiated the traffic stop. The district
court addressed the officer’s authority to stop Defendant’s vehicle at a suppression

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hearing on January 4, 2008. 	The court denied Defendant’s motion to suppress.
Defendant appeals the denial of his motion to suppress.
DISCUSSION
{3} 	In reviewing the denial of a motion to suppress, we must view the facts in the
light most favorable to the prevailing party and determine whether the law was
correctly applied to the facts. State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966
P.2d 785. We indulge all reasonable inferences in support of the court’s decision and
disregard 	all 	inferences 	and 	evidence 	to 	the 	contrary. 	State 	v. 	Duquette,
2000-NMCA-006, ¶ 7, 128 N.M. 530, 994 P.2d 776 (filed 1999).
{4} 	On appeal, Defendant argues that the cracked windshield could not justify the
stop because there was no indication that Defendant’s vision was obstructed or that
the crack made driving hazardous. See, e.g., State v. Munoz, 1998-NMCA-140, ¶ 11,
125 N.M. 765, 965 P.2d 349 (holding that a violation of NMSA 1978, Section 66-3-
801(A) (1991) occurs when a crack in a vehicle’s windshield makes the vehicle unsafe
to drive). Although Defendant argues that the cracked windshield did not justify the
stop, Deputy Barde testified that the crack in Defendant’s windshield only caused him
to turn around “to see if [he] saw any other violations.” Deputy Barde testified that
he initiated the traffic stop based on his determination that the obstructed registration
sticker constituted a violation of Section 66-3-18(A). 	Based on the deputy’s

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testimony and the appropriate standard of review, the district court properly held that
the Deputy Barde initiated the stop based upon obstruction of the registration sticker.
{5} 	In relevant part, Section 66-3-18(A) provides that “[t]he registration plate . . .
shall be in a place and position so as to be clearly visible, and . . . clearly legible.” An
obstructed registration sticker constitutes a violation of Section 66-3-18(A). See State
v. Hill, 2001-NMCA-094, ¶¶ 28-30, 131 N.M. 195, 34 P.3d 139. We hold that Deputy
Barde’s observation of such an obstruction to the license plate provided a sufficient
basis to justify the stop. See State v. Vargas, 120 N.M. 416, 419, 902 P.2d 571, 574
(Ct. App. 1995) (recognizing that a violation of the Motor Vehicle Code provides
officers with the requisite reasonable suspicion to conduct an investigatory stop).
{6} 	In anticipation of our holding that the stop was justified by Deputy Barde’s
observation of the obstructed registration plate, Defendant asserts that Section 66-3-
18(A) is unconstitutionally void for vagueness and therefore could not provide a
lawful basis for the stop. 	Although the parties disagree as to whether Defendant
adequately preserved the issue below, we exercise our discretion to consider the issue
as a matter of “general public interest.” 	Rule 12-216(B) NMRA. 	We review a
challenge to the constitutionality of a statute de novo. State v. Duran, 1998-NMCA-
153, ¶ 31, 126 N.M. 60, 966 P.2d 768. We presume that the statute is constitutional,
State v. Laguna, 1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896, and it is the

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defendant’s burden to rebut this presumption, State v. Andrews, 1997-NMCA-017, ¶
10, 123 N.M. 95, 934 P.2d 289. We analyze a claim of vagueness according to the
particular facts of each case, State v. Luckie, 120 N.M. 274, 276, 901 P.2d 205, 207
(Ct. App. 1995), and a defendant may not succeed on a vagueness claim if the statute
clearly applies to the defendant’s conduct, Laguna, 1999-NMCA-152, ¶ 24. A statute
is void for vagueness if: (1) it fails to provide persons of ordinary intelligence using
ordinary common sense a fair opportunity to determine whether their conduct is
prohibited; or (2) it fails to create minimum guidelines for the reasonable police
officer, prosecutor, judge, or jury charged with enforcement of the statute, and thereby
encourages subjective and ad hoc application. Id. ¶¶ 25-26.
{7} 	First, we address the fair warning or notice aspect of the registration plate
statute. Section 66-3-18(A) provides:
The registration plate shall be attached to the rear of the vehicle for
which it is issued; however, the registration plate shall be attached to the
front of a road tractor or truck tractor. 	The plate shall be securely
fastened at all times in a fixed horizontal position at a height of not less
than twelve inches from the ground, measuring from the bottom of the
plate. It shall be in a place and position so as to be clearly visible, and
it shall be maintained free from foreign material and in a condition to be
clearly legible.
Defendant argues that the statute is unconstitutionally vague because it does not state
precisely what on the plate must be “clearly visible.” 	However, Defendant
acknowledges that there are some circumstances in which a violation of the statute

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would be obvious, such as a plate that is so worn or dirty so as to be unreadable. As
applied to the particular circumstances of this case, Defendant argues that Deputy
Barde could identify the critical elements of his plate—the state of registration and the
plate number—and asserts that it is not apparent that a violation of the statute could
be based on “[t]he fact that the [registration] sticker was covered.” We disagree.
{8} 	As recognized in Hill, the term “‘registration plate’ is a broad term comprising
everything that evidences registration, including plates, tabs, and renewal stickers.”
2001-NMCA-094, ¶ 29 (emphasis added). Consistent with Hill, NMSA 1978, Section
66-1-4.15(I) (2007) specifically defines registration plate as “the plate, marker, sticker
or tag assigned by the division for the identification of the registered vehicle[.]” Other
related New Mexico registration statutes similarly make it clear that the registration
sticker is part of the registration plate. See, e.g., NMSA 1978, § 66-1-4.19(A) (2005)
(defining “validating sticker” as the “tab or sticker issued by the division to signify,
upon a registration plate, renewed registration”); § 66-3-18(C) (providing that “[n]o
vehicle while being operated on the highways of this state shall have displayed . . . any
registration plate, including validating sticker, other than one issued or validated for
the current registration period”).
{9} 	A registration sticker that is obstructed by a license plate frame placed over the
sticker so as to prevent the information contained on the sticker from being read

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constitutes a violation of Section 66-3-18(A). See Hill, 2001-NMCA-094, ¶¶ 28-30.
The registration sticker provides required information that allows officers to ensure
that the vehicle’s registration is current. 	Section 66-3-18(A) requires that this
necessary information must be posted in a manner that makes the registration sticker
clearly visible. In short, a common sense reading of Section 66-3-18(A) dictates that
the visibility requirement extends not just to selective portions of the plate, as
advocated by Defendant, but instead to all of the registration information required to
be displayed on the license plate. See State ex rel. Children, Youth & Families Dep’t
v. Shawna C., 2005-NMCA-066, ¶ 34, 137 N.M. 687, 114 P.3d 367 (holding that a
statute is valid when it “convey[s] sufficiently definite warning as to the proscribed
conduct when measured by common understanding and practices” (internal quotation
marks and citation omitted)). We conclude that Section 66-3-18(A) provides citizens
fair warning of the prohibited conduct of obstructing the vital information required to
be displayed on a vehicle’s license plate, including the registration sticker.
{10} 	We are not persuaded by Defendant’s assertion that registration stickers are too
small to be read from a distance or while driving and thus should be excluded from
the visibility requirement. Whether or not the stickers can be viewed by an officer
while driving is not a matter of record. See State v. Romero, 87 N.M. 279, 280, 532
P.2d 208, 209 (Ct. App. 1975) (holding that “[m]atters outside the record present no

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issue for review”). We further decline Defendant’s invitation to take judicial notice
on this point, as the readability of registration stickers will vary depending on the
distance between the two vehicles and a host of other factors. See Rozelle v. Barnard,
72 N.M. 182, 183, 382 P.2d 180, 181 (1963) (precluding judicial notice when
uncertainty surrounds the fact or matter in question); see also Rule 11-201(B) NMRA
(providing that judicial notice is generally not appropriate for matters that are subject
to reasonable dispute or incapable of ready and accurate determination).
{11} 	We next consider whether the Section 66-3-18(A) encourages arbitrary or
discriminatory enforcement. Defendant asserts that “Deputy Barde’s interpretation
of Section 66-3-18 would allow any officer to pull over any car with a license plate
holder, since the registration sticker . . . is obscured by many (if not most) license plate
holders.” Whether or not most license plate frames obscure registration stickers is not
a matter of record. See Romero, 87 N.M. at 280, 532 P.2d at 209 (“Matters outside
the record present no issue for review.”). 	Further, irrespective of the accuracy of
Defendant’s assertion, the critical inquiry is whether the statute provides officers with
minimal guidelines for enforcement. To this end, Section 66-3-18(A) allows officers
to effect a stop only if an object causes the information on the plate to be obstructed
so that it is not clearly visible. The fact that a law enforcement officer must view the
license plate to determine whether the required registration information is clearly

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visible does not, by itself, establish that the determination is an ad hoc or subjective
application of the law. Objective evidence regarding the visibility of the registration
sticker can be presented to the trial court. For this reason, we cannot conclude that
Section 66-3-18(A) lacks minimal guidelines for enforcement or fails to constrain the
discretion of law enforcement officers.
{12} 	Lastly, we disagree with Defendant’s argument that the present case is
analogous to the circumstances addressed in Smith v. Goguen, 415 U.S. 566, 568-76
(1974). In Goguen, the statute criminalized “treat[ing] contemptuously the flag of the
United States.” Id. at 568-69 (internal quotation marks and citation omitted). Treating
something “contemptuously” involves a subjective determination that does not place
a defendant on notice of any particular act that would be prohibited and allows
indiscriminate 	enforcement. 	Id. 	at 	575-76. 	Consequently, 	the 	statute 	was
unconstitutionally vague. Id. at 576-77. Conversely, the application of Section 66-3-
18(A) leaves minimal room for subjectivity and allows for objective evidence of
verification. 	The statute unambiguously requires that the information on the
registration plate be clearly visible. 	Id. 	As such, we determine that Section 66-3-
18(A) meets the minimum guidelines for the reasonable police officer, judge, or jury
charged with enforcement of the statute, and thereby does not promote a subjective
and ad hoc application. 	Defendant did not present any evidence or argue that the

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registration sticker on his vehicle was, in fact, visible. 	Because the evidence
established that Defendant’s license plate frame prevented Deputy Barde from
viewing the information contained on the registration sticker, the stop of Defendant’s
vehicle was not indiscriminate.
{13} 	In light of our conclusion that Section 66-3-18(A) is not void for vagueness, we
need not consider Defendant’s contention that the officer could not rely in good faith
on an unconstitutional statute.
CONCLUSION
{14} 	Consistent with the foregoing analysis, we hold that Deputy Barde lawfully
stopped Defendant’s vehicle based on his observation of a violation of Section 66-3-
18(A). We further hold that Section 66-3-18(A) is constitutional and is not void for
vagueness. We affirm.
{15} 	IT IS SO ORDERED.
___________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
_______________________________
JAMES J. WECHSLER, Judge

LINDA M. VANZI, Judge
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