State v. Montano

Office of the Director New Mexico
10:34:21 2020.08.05 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-009

Filing Date: June 11, 2020

No. S-1-SC-37021

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

ROY D. MONTANO,

Defendant-Respondent,

and

No. S-1-SC-37098

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

WILLIAM DANIEL MARTINEZ,

Defendant-Petitioner.

ORIGINAL PROCEEDINGS ON CERTIORARI
District Judges Fred T. Van Soelen and Karen L. Townsend

Released for Publication August 11, 2020.

Hector H. Balderas, Attorney General
John J. Woykovsky, Assistant Attorney General
Santa Fe, NM

for State of New Mexico

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Petitioner William Daniel Martinez

Eric D. Dixon
Portales, NM

for Respondent Roy D. Montano

OPINION

VIGIL, Justice.

{1} These consolidated cases give us the opportunity to define “uniformed law
enforcement officer” and “appropriately marked law enforcement vehicle” under NMSA
1978, Section 30-22-1.1(A) (2003), which defines the crime of aggravated fleeing from a
law enforcement officer. 1 Violation of Section 30-22-1.1 is a fourth-degree felony that
“consists of a person willfully and carelessly driving his vehicle in a manner that
endangers the life of another person after being given a visual or audible signal to stop,
whether by hand, voice, emergency light, flashing light, siren or other signal, by a
uniformed law enforcement officer in an appropriately marked law enforcement vehicle
in pursuit in accordance with the provisions of the Law Enforcement Safe Pursuit Act.”
(Emphasis added.)

{2} We granted certiorari (1) in State v. Montano, 2018-NMCA-047, 423 P.3d 1, to
review the reasoning of Montano and consider whether the law enforcement officer was
“uniformed” under Section 30-22-1.1(A) and (2) in State v. Martinez, A-1-CA-35111,
mem. op. (May 14, 2018) (nonprecedential), to review the Montano reasoning and
consider whether the law enforcement officers in Martinez and Montano were each in
an “appropriately marked law enforcement vehicle” under Section 30-22-1.1(A). We
affirm the Court of Appeals determination of what constitutes a “uniformed law
enforcement officer” and reject its determination of what constitutes an “appropriately
marked law enforcement vehicle” and therefore conclude that the officer in Montano
was not a “uniformed law enforcement officer” and that neither the officer in Montano
nor the officer in Martinez was in an “appropriately marked law enforcement vehicle.”

I. BACKGROUND

A. State v. Montano

{3} After an automobile pursuit, Curry County Sheriff’s Deputy Glenn Russ arrested
Defendant Roy Montano. The State charged Defendant Montano with one count of
aggravated fleeing from a law enforcement officer, § 30-22-1.1, and one count each of
driving with a revoked license, NMSA 1978, § 66-5-39.1 (2013), driving with an expired

1Defendant Roy Montano died on May 20, 2017. We appointed a substitute for the deceased defendant to allow
the appeal to proceed, per Rule 12-301(A) NMRA. This Court, “on its own initiative,” can “appoint a substitute for a
deceased party-defendant” if resolving an appeal is “in the best interests of . . . society.” State v. Salazar, 1997-
NMSC-044, ¶ 25, 123 N.M. 778, 945 P.2d 996.
motor vehicle registration, NMSA 1978, § 66-3-19 (1995), and driving with no insurance,
NMSA 1978, § 66-5-205(B) (2013).

{4} In his statement of probable cause, Deputy Russ wrote that he began to follow
Defendant Montano after seeing a Hispanic male he initially believed to be an individual
he knew to have had “a warrant in the past” get into a four-door Saturn and begin
driving. Deputy Russ stated that his purpose in following this individual was to verify the
driver’s identity. After catching up to the Saturn and running the license plate, Deputy
Russ learned that the plate was expired. Deputy Russ wrote that he then activated the
emergency lights on his vehicle “to [e]ffect a traffic stop for the violation and positively
identify the driver.” Deputy Russ stated that the vehicle did not stop, ran multiple stop
signs, and drove in a manner that posed a safety risk to the public before sliding
through an intersection, striking a curb, and coming to rest on an easement.

{5} Defendant Montano waived his right to a jury trial. At the bench trial the evidence
included testimony from Deputy Russ that he worked as an “investigator” with the Curry
County Sheriff’s office and wore the clothing required of investigators: “a dress shirt with
tie, dress slacks, and dress shoes.” Deputy Russ wore his badge displayed on the
breast pocket of his shirt, but there was no testimony describing the badge itself, its
wording, or the size of the wording. Deputy Russ drove a Ford Expedition that had no
decals, striping, insignia, or lettering anywhere on the vehicle. However, the vehicle was
equipped with wigwag headlights, red and blue flashing lights mounted in the front grill
and the top rear window, flashing brake lights, and a siren. The vehicle also had a
government license plate. The district court took judicial notice that the vehicle “was not
a marked vehicle.”

{6} At the close of the State’s case-in-chief, Defendant Montano moved for a
directed verdict on the aggravated fleeing charge, asserting that the State failed to
prove that Deputy Russ was uniformed or in an appropriately marked law enforcement
vehicle, as required by Section 30-22-1.1(A), when Deputy Russ attempted to stop him.
The district court ruled that displaying a badge was sufficient to be considered in
uniform and that Deputy Russ’s vehicle was “appropriately marked” because motorists
understand that they are required to pull over and stop when they see emergency lights.
The district court therefore denied Defendant Montano’s motion, found Defendant
Montano guilty of aggravated fleeing, and imposed the maximum sentence of eighteen
months imprisonment. Montano appealed to the Court of Appeals.

{7} The Court of Appeals reversed Defendant Montano’s conviction. Montano, 2018-
NMCA-047, ¶ 1. The Court of Appeals concluded that Deputy Russ’s vehicle was an
“appropriately marked law enforcement vehicle” as required by Section 30-22-1.1(A) but
that the clothes that Deputy Russ was wearing “did not constitute a uniform” and
therefore did not comply with the statute. Montano, 2018-NMCA-047, ¶ 1. We granted
the State’s petition for a writ of certiorari seeking review of the Court of Appeals
conclusion that Deputy Russ was not uniformed at the time of the stop as required by
Section 30-22-1.1(A).
B. State v. Martinez

{8} Defendant William Daniel Martinez was arrested pursuant to an arrest warrant
and charged with one count of aggravated fleeing from a law enforcement officer, § 30-
22-1.1. The affidavit in support of the arrest warrant states that on July 14, 2014, San
Juan County Sheriff’s Deputy Andrew Gilbert received information alleging that
Defendant Martinez, who had several active felony and misdemeanor warrants, was at
a residence in Farmington. When Deputy Gilbert arrived in that area, he observed a car
matching the description of the vehicle Defendant Martinez allegedly drove that was
pulling out of a trailer park. Deputy Gilbert recognized Defendant Martinez as the driver
through several previous contacts with him. Apparently recognizing that Deputy Gilbert
was driving behind him, Defendant Martinez ran a stop sign and made several evasive
maneuvers. Deputy Gilbert initiated the emergency equipment on his “unmarked patrol
vehicle” and pursued Defendant Martinez who ran additional stop signs, swerved to
avoid hitting pedestrians, and on several occasions slid into intersections and drove
down oncoming traffic lanes. Deputy Gilbert eventually abandoned the pursuit.
Defendant Martinez was subsequently arrested pursuant to the arrest warrant.

{9} Prior to trial, Defendant Martinez filed a motion to dismiss the criminal
information, asserting that that Deputy Gilbert “was in an unmarked vehicle, no more
conspicuous than any other lay vehicle” when he attempted to stop Defendant Martinez.
Defendant Martinez contended that Deputy Gilbert was therefore not in an appropriately
marked law enforcement vehicle as required by Section 30-22-1.1(A).

{10} After an evidentiary hearing, the district court granted Defendant Martinez’s
motion and dismissed the criminal information without prejudice. The district court found
that the following facts were undisputed. Deputy Gilbert was on duty “driving a tan
colored Ford Explorer law enforcement vehicle.” The vehicle was specifically furnished
for covert operations intended to evade detection. “By design, the vehicle bore no
insignias, stripes, decals, labels, seals, symbols or other pictorial signs or lettering
indicating its identity as a law enforcement vehicle.” The vehicle was also equipped with
“red and blue LED lights located within the grill area that were visible through the grill
even when not activated.” In addition, the vehicle had a siren with speakers located
inside the grill as well as “an antenna that is not common to civilian vehicles.”

{11} Under these facts the district court made the following conclusions of law. “To be
marked, much less ‘appropriately marked,’ requires at minimum some type of readily
observable insignia or lettering that conveys the identity or ownership of the vehicle.” In
addition, “[t]he red and blue lights and the siren speakers located within the grill area of
the vehicle were signaling devices, not identifying marks. To the extent the State argues
these signaling devices satisfy” the requirement of Section 30-22-1.1(A) “that the
pursuing law enforcement vehicle be appropriately marked,” the district court disagreed.
Specifically, the district court stated that Section 30-22-1.1(A) requires a signal to stop
by means of “emergency light, flashing light, siren or other signal” made by an officer
driving “an appropriately marked law enforcement vehicle.” The district court continued,
“If the lights and siren themselves constituted the required marking, it would render the
requirement that the vehicle be appropriately marked a mere surplusage in the statute
which statutory construction does not favor.” The district court ruled that in the absence
of “evidence that Deputy Gilbert’s vehicle was marked at all, the State cannot make a
prima facie showing of all elements of the crime of aggravated fleeing a law
enforcement officer . . . as a matter of law.” The State appealed.

{12} Relying on the reasoning in Montano, 2018-NMCA-047, ¶¶ 35-47, the Court of
Appeals summarily reversed the district court. Martinez, A-1-CA-35111, mem. op. ¶¶ 1-
2. Defendant Martinez filed a petition for a writ of certiorari, which this Court granted,
seeking review of the Court of Appeals conclusion that Deputy Gilbert was driving an
“appropriately marked law enforcement vehicle” as required by Section 30-22-1.1(A).

II. STANDARD OF REVIEW

{13} These cases require us to construe Section 30-22-1.1(A). “[W]e review all
questions of . . . statutory interpretation de novo.” State v. Ameer, 2018-NMSC-030, ¶ 9,
458 P.3d 390. “Our primary goal when interpreting a statute is to determine and give
effect to the Legislature’s intent.” State v. Suazo, 2017-NMSC-011, ¶ 15, 390 P.3d 674
(internal quotation marks and citation omitted). “Under the rules of statutory
construction, we first turn to the plain meaning of the words at issue, often using the
dictionary for guidance.” State v. Boyse, 2013-NMSC-024, ¶ 9, 303 P.3d 830. We give
effect to the plain meaning of the statute “unless the language is doubtful, ambiguous,
or an adherence to the literal use of the words would lead to injustice, absurdity or
contradiction, in which case the statute is to be construed according to its obvious spirit
or reason.” State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693
(internal quotation marks and citation omitted). “When application of the plain meaning
of the statute fails to result in a reasonable or just conclusion, we examine legislative
history and the overall structure of the statute and its function in the comprehensive
legislative scheme.” Id. (internal quotation marks and citation omitted). The language of
a statute “may not be considered in a vacuum, but must be considered in reference to
the statute as a whole and in reference to statutes dealing with the same general
subject matter.” State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939
(internal quotation marks and citation omitted). When possible, “we must read different
legislative enactments as harmonious instead of as contradicting one another.” Id.
(internal quotation marks and citation omitted).

III. UNIFORMED LAW ENFORCEMENT OFFICER

{14} The State argues that when he stopped Defendant Montano, Deputy Russ was a
“uniformed law enforcement officer” as required by Section 30-22-1.1(A). The State
asserts that this conclusion is supported by the plain meaning of “uniform,” by the
purpose of Section 30-22-1.1(A), and by related statutes and case law discussing what
constitutes a uniformed police officer. Defendant Montano in turn contends that the
Court of Appeals correctly concluded that Deputy Russ was not a “uniformed law
enforcement officer” at the time of the stop.
A. Court of Appeals Opinion

{15} In concluding that Deputy Russ was not uniformed at the time he attempted to
stop Defendant Montano, the Court of Appeals organized its analysis around four
topics: (1) the plain meaning of “uniform,” (2) New Mexico statutes related to the subject
matter of Section 30-22-1.1, (3) related New Mexico case law, and (4) whether applying
the plain meaning of “uniform” to Section 30-22-1.1 leads to an absurd result or one that
is clearly contrary to the intent of the Legislature. See Montano, 2018-NMCA-047, ¶¶
10, 14, 21, 31.

1. Plain meaning of “uniform”

{16} In Montano, the Court of Appeals began its analysis by considering the plain
meaning of “uniform.” Id. ¶ 11. Looking to the definition stated in Webster’s Third New
International Dictionary 2498 (unabr. ed. 1986), the Court of Appeals observed that the
meaning of “uniform” is “dress of a distinctive design or fashion adopted by or
prescribed for members of a particular group . . . and serving as a means of
identification.” Montano, 2018-NMCA-047, ¶ 11 (omission in original) (internal quotation
marks omitted). The Court of Appeals further observed that Webster’s Third New
International Dictionary 689 (unabr. ed. 1986) defines “dress” as “utilitarian or
ornamental covering for the human body: as . . . clothing and accessories suitable to a
specific purpose or occasion.” Montano, 2018-NMCA-047, ¶ 11 (omission in original)
(internal quotation marks omitted).

{17} The Court of Appeals found these definitions significant for two reasons. The first
is that “a uniform consists of clothing, as distinguished from, for example, only a law
enforcement officer’s badge.” Id. ¶ 12. In other words, the Court of Appeals noted that
“equipment alone, without distinctive clothing, is not ‘dress of a distinctive design or
fashion[,]’ i.e., it is not a uniform.” Id. (alteration in original) (citation omitted). In support
of the conclusion that there is a meaningful distinction between a uniform and a badge,
the Court of Appeals cited 2.110.3.8(B)(2) NMAC, which distinguishes “[guns,] holsters,
. . . uniforms, belts, badges and related apparatus” for use by law enforcement officers
“as items eligible for purchase with funds from the Law Enforcement Protection Fund
Act, NMSA 1978, §§ 29-13-1 to -9 (1993, as amended through 2017).” Montano, 2018-
NMCA-047, ¶ 12 (omission in original) (internal quotation marks omitted). The second
significant aspect of the meaning of “uniform” noted by the Court of Appeals is that “a
uniform is clothing that distinguishes the wearer from the general public, i.e., identifies
him or her as a member of a particular group.” Id.

{18} Under this construction of the plain meaning of “uniform,” the Court of Appeals
determined that Deputy Russ was not uniformed at the time he initiated the stop of
Defendant Montano because the Deputy’s “clothing was not of a distinctive design or
fashion and did not serve to identify him as a law enforcement officer.” Id. ¶ 13. Rather,
“the purpose of his outfit was, if anything, to allow him to blend in with the general
public.” Id. Further, while acknowledging that a badge or even handcuffs and a
holstered firearm may identify the person as a law enforcement officer, they are not
“clothing” and therefore not a uniform. Id.

2. Related New Mexico statutes

{19} The Court of Appeals next considered Section 30-22-1.1(A) in relation to several
other statutes that address law enforcement officers’ uniforms and officers’ authority to
stop motorists. See Montano, 2018-NMCA-047, ¶¶ 14-15. The Court of Appeals
focused on the following statutes:

• NMSA 1978, § 29-2-13 (1989) (stating that the secretary of public safety
shall “provide and issue” to all New Mexico state police officers “a uniform and an
appropriate badge which shall contain in plain legible letters the words ‘New
Mexico state police’” (emphasis added)).

• NMSA 1978, § 29-2-14(A) (2015) (defining the crime of unauthorized
wearing of a uniform or badge as “the wearing or requiring the wearing, without
authorization by the secretary, of a uniform or badge or both whose material,
color or design, or any combination of them, is such that the wearer appears to
be a member of the New Mexico state police” (emphasis added)).

• NMSA 1978, § 30-22-1(C) (1981) (defining the crime of resisting, evading
or obstructing an officer, as “willfully refusing to bring a vehicle to a stop when
given a visual or audible signal to stop, whether by hand, voice, emergency light,
flashing light, siren or other signal, by a uniformed officer in an appropriately
marked police vehicle”).

• NMSA 1978, § 66-8-124(A) (2007) (stating that “[n]o person shall be
arrested for violating the Motor Vehicle Code or other law relating to motor
vehicles punishable as a misdemeanor except by a commissioned, salaried
peace officer who, at the time of arrest, is wearing a uniform clearly indicating the
peace officer’s official status” (emphasis added)).

• NMSA 1978, § 66-8-125(C) (1978) (stating that “[m]embers of the New
Mexico state police, sheriffs, and their salaried deputies and members of any
municipal police force may not make [a warrantless] arrest for traffic violations if
not in uniform” (emphasis added)).

• NMSA 1978, § 66-7-332(A) (2005, amended 2017) (stating that “[u]pon
the immediate approach of an authorized emergency vehicle displaying flashing
emergency lights or when the driver is giving audible signal . . . , the driver of
every other vehicle shall yield the right of way and shall immediately drive to a
position parallel to, and as close as possible to, the right-hand edge or curb of
the roadway clear of any intersection and shall stop and remain in that position
until the authorized emergency vehicle has passed, except when otherwise
directed by a police officer); NMSA 1978, § 66-8-116(A) (2016, amended 2019)
(assessing a $50 fine for violation of Section 66-7-332 (2005)).

See Montano, 2018-NMCA-047, ¶¶ 6, 16-20.

{20} Construing the statute “in accordance with the plain meaning of ‘uniform[,]’” the
Court of Appeals concluded that Section 30-22-1.1(A) is “harmonious” with the
foregoing statutes. Montano, 2018-NMCA-047, ¶ 15. First, the Court of Appeals
observed that Section 29-2-13 and Section 29-2-14, which address the uniforms and
badges of the New Mexico State Police and the crime of unauthorized wearing of a
uniform or badge, each “distinguish between a uniform and a badge.” Montano, 2018-
NMCA-047, ¶ 16. This distinction, the Court of Appeals continued, reflects “the
Legislature’s understanding that, while a uniform and badge are both indicia of law
enforcement officer status, the two are different—i.e., a badge is not simply a part of a
uniform.” Id.

{21} Second, the Court of Appeals noted that the legislative history of Section 66-8-
124(A) is consistent with the distinction between a uniform and a badge. Montano,
2018-NMCA-047, ¶ 17. When the statute was enacted in 1961 under the prior
compilation, it stated, “In the Motor Vehicle Code, ‘uniform’ means an official badge
prominently displayed, accompanied by a commission of office.” NMSA 1953, § 64-22-
8.1 (1961). However in 1968, also under the prior compilation, this sentence was
removed from the statute, and it was amended to include the current language that no
person shall be arrested for a violation of the Motor Vehicle Code except by a law
enforcement officer “who, at the time of arrest, is wearing a uniform clearly indicating his
official status.” NMSA 1953, § 64-22-8.1 (1968) (emphasis added). Based on these
changes, the Court of Appeals stated, “The most logical inference to be drawn from the
1968 amendment is that . . . the Legislature determined that a badge should not be
considered part of a uniform and instead is a separate indicia of law enforcement officer
status.” Montano, 2018-NMCA-047, ¶ 17; compare NMSA 1953, § 64-22-8.1 (1961),
with NMSA 1953, § 64-22-8.1 (1968).

{22} Third, the Court of Appeals noted that Section 66-8-125(C), requiring any law
enforcement officer making an arrest for traffic violations to be “in uniform,” tracks the
language of Section 66-8-124(A). Montano, 2018-NMCA-047, ¶ 18.

{23} Finally, the Court of Appeals observed that Section 66-7-332, Section 66-8-116,
Section 30-22-1(C), and Section 30-22-1.1(A), when viewed together, evince “a
common general legislative intent: enforcing, by means of progressively greater
sanctions for disobedience, the public policy imperative that a motorist must promptly
pull off to the side of the road and stop when he or she notices a law enforcement
vehicle that has its emergency lights and/or sound equipment engaged.” Montano,
2018-NMCA-047, ¶ 20. The Court of Appeals noted that compared to penalties for
violation of traffic laws such as Section 66-7-332, the greater penalties for violating
Section 30-22-1(C) (a misdemeanor) or Section 30-22-1.1(A) (a fourth-degree felony
under Section 30-22-1.1(B)) stem in part from the fact that the motorist’s failure to stop
was willful and “objectively clear (based on visual and audible signals, a uniform, and
appropriate markings on a vehicle) that it is a law enforcement officer who is signaling
the motorist to stop.” Montano, 2018-NMCA-047, ¶ 20.

3. Related New Mexico case law

{24} considering the related case law, the Court of Appeals focused its analysis on
State v. Archuleta, 1994-NMCA-072, 118 N.M. 160, 879 P.2d 792, and State v. Maes,
2011-NMCA-064, 149 N.M. 736, 255 P.3d 314. Montano, 2018-NMCA-047, ¶¶ 21-30.

{25} In Archuleta, the defendant was stopped for speeding. 1994-NMCA-072, ¶ 2. The
officer who made the stop was in plain clothes. Id. Before approaching the driver, the
officer retrieved his Albuquerque Police Department windbreaker from the back seat of
his car. Id. The windbreaker had a cloth shield on the front that read “Albuquerque
Police” and a patch on the shoulder with the state of New Mexico emblem and the
words “Albuquerque Police” on it. Id. “Recognizing that there may be a problem with
[the d]efendant signing the citation,” the officer radioed for a fully uniformed officer to be
present before issuing the citation to the defendant. Id. ¶ 3. Two fully uniformed, on-duty
officers arrived, and the officer who made the stop issued the citation. Id. The defendant
was found guilty of speeding and appealed, arguing for reversal pursuant to NMSA
1978, Section 66-8-137(B) (1978, recompiled from NMSA 1953, Section 64-8-137
(1968)) (providing that for purposes of an alleged violation of the Motor Vehicle Code,
the fact “that the person making the arrest was not in uniform at the time is a defense to
the charge”). Archuleta, 1994-NMCA-072, ¶ 6.

{26} On appeal, the Court of Appeals, looking to the history of Section 66-8-124,
observed that the pre-1968 version of the statute (NMSA 1953, § 64-22-8.1 (1961))
included an additional sentence stating that in the Motor Vehicle Code, “‘uniform’ means
an official badge prominently displayed, accompanied by a commission of office.”
Archuleta, 1994-NMCA-072, ¶ 10 (internal quotation marks omitted). The Court of
Appeals stated, “We believe that the deletion of that language suggested that the
legislature intended the definition of ‘uniform’ to be less restrictive, no doubt recognizing
that modern day police officers may have more than one uniform or may on occasion
wear combinations thereof.” Id. The Court of Appeals noted, “It seems clear enough that
the intention of the legislature in requiring the officer to wear a uniform plainly indicating
his official status was to enable the motorist to be certain that the officer who stops him
is, in fact, a police officer.” Id. ¶ 9. Given the definition, history, and intent of Section 66-
8-124, the Court of Appeals established two alternative tests to determine whether an
officer is uniformed for purposes of the statute: (1) “whether there are sufficient indicia
that would permit a reasonable person to believe the person purporting to be a peace
officer is, in fact, who he claims to be” or (2) “whether the person stopped and cited
either personally knows the officer or has information that should cause him to believe
the person making the stop is an officer with official status.” Archuleta, 1994-NMCA-
072, ¶ 11 (stating that the former, “objective test best suits more populated areas or
persons traveling through the state” while the latter, “subjective test may be appropriate
in small towns where everyone knows the constable and recognizes his official status”).
{27} Reasoning that by wearing the windbreaker bearing the words “Albuquerque
Police” in two places, a reasonable person would have inferred that the officer was in
fact a peace officer. Id. ¶¶ 11-12. Accordingly, the Court of Appeals concluded that the
facts established the objective test. Id. ¶ 12. In so concluding the Court of Appeals also
rejected the defendant’s argument that public policy supports the requirement that an
officer making arrests or stops to issue citations must be in full uniform based on the
risk of danger that citizens may be stopped by police impersonators. Id. ¶ 15. The Court
of Appeals stated, “While we recognize that there is that risk, we are not persuaded that
in this day and time when law enforcement uniforms are probably readily available, the
risk would be that much lessened by requiring the officer to wear his or her full attire
before making a stop or arrest.” Id.

{28} Similarly in Maes, the Court of Appeals considered whether the New Mexico
State Police Basic Duty Uniform (BDU) constituted a “uniform” as used in Section 66-8-
124 and Section 66-8-125. Maes, 2011-NMCA-064, ¶ 1. A BDU is comprised of the
following components:

black pants; black boots; a black vest to which is attached an electronic
communication device with a chord; a black long-sleeve shirt with the
words “STATE POLICE” in large bold yellow lettering on the sleeves, the
word “POLICE” in large bold white lettering on the right shoulder area, a
smaller triangular cloth patch with the words “STATE POLICE” also on the
right shoulder; and, on the back of the shirt, the word “POLICE” in large
bold white lettering in two places; an equipment belt, holster, and firearm;
and a metal police badge hung from one of the front pockets.

Id. ¶ 11. Wearing BDUs and driving an unmarked vehicle, two New Mexico State Police
officers stopped the defendant when they witnessed him engage in multiple traffic
infractions. Id. ¶ 3. During the stop, the officers discovered that the defendant had
outstanding warrants, conducted a search incident to arrest, and discovered imitation
drugs and drug paraphernalia while carrying out their search. Id. The defendant filed a
motion to suppress the drugs and paraphernalia, arguing in pertinent part that the stop
was unlawful because the officers were not uniformed within the meaning of Sections
66-8-124(A) and 66-8-125(C). Maes, 2011-NMCA-064, ¶ 4. The district court agreed
and suppressed the evidence, concluding that the BDUs were not uniforms as
contemplated by Sections 66-8-124(A) and 66-8-125(C). Maes, 2011-NMCA-064, ¶ 5.
On appeal and applying Archuleta, the Court of Appeals concluded that under the
objective test, a reasonable person would believe that an individual wearing a BDU is, in
fact, a police officer. Maes, 2011-NMCA-064, ¶ 11. The Court of Appeals reasoned,
“The word police is printed in large lettering in several locations on the garments
comprising a BDU and an individual donning a BDU has equipment on their person
consistent with what a police officer would possess.” Id.

4. Absurd results
{29} Finally, the Court of Appeals considered whether applying the plain meaning of
“uniform” to Section 30-22-1.1(A) necessarily leads to unreasonable or absurd results.
Montano, 2018-NMCA-047, ¶ 32. The Court of Appeals began with the proposition that
“[r]equiring as an element of the crime that the pursuing officer be in uniform, i.e.,
clothing that in addition to a badge objectively identifies him or her as a law enforcement
officer, is unreasonable only if one assumes that the intent of the statute is to criminalize
all refusals to comply with a signal to stop, even by a nonuniformed officer.” Id. Such a
construction, the Court of Appeals continued, “would render meaningless . . . the word
‘uniformed’ in the statute.” Id. This construction would further conflict with Sections 29-2-
13 and 29-2-14, which draw a distinction between uniforms and badges. Montano,
2018-NMCA-047, ¶ 32. “Thus, if anything, the absurd or unreasonable result is reached
by not applying the plain meaning of ‘uniform.’” Id.

{30} The Court of Appeals concluded by stating that it was immaterial that “an
argument might be made that it would be better policy to allow nonuniformed law
enforcement officers to make arrests for violation of Section 30-22-1.1(A)” because the
courts are required to give effect to the law as its written, “not as the court may think it
should be or would have been written if the Legislature had envisaged all the problems
and complications which might arise in the course of its administration.” Montano, 2018-
NMCA-047, ¶ 34 (internal quotation marks and citation omitted).

B. Analysis

{31} We conclude that the Court of Appeals interpretation of what constitutes a
uniform under Section 30-22-1.1(A) is legally accurate, and we adopt its reasoning
stated above as our own. We add the following additional observations.

{32} There is no indication in Section 30-22-1.1, or in the other criminal offense
statutes in Chapter 30, Article 22 governing interference with law enforcement, that the
Legislature intended the word uniform to be construed as meaning anything other than
its common meaning. See NMSA 1978, § 12-2A-2 (1997) (“Unless a word or phrase is
defined in the statute or rule being construed, its meaning is determined by its context,
the rules of grammar and common usage.”). In addition, defining “uniform” as used in
Section 30-22-1.1(A) to mean “clothing and accessories” that are “of a distinctive design
or fashion adopted by or prescribed for members of a particular group . . . and serving
as a means of identification” resonates with the ordinary understanding of what a
uniform is. Montano, 2018-NMCA-047, ¶ 11 (omission in original) (internal quotation
marks and citations omitted). That is, a “uniform” is clothing in which one dresses to
identify for a particular purpose, office, or profession. See id. Case law in other
jurisdictions construing similar statutes comes to the same conclusion.

{33} In People v. Mathews, 64 Cal. App. 4th 485, 490-91 (Ct. App. 1998), the
California Court of Appeal considered whether a police officer in plain clothes donning a
badge and displaying a firearm on his belt was in uniform for purposes of the California
Vehicle Code statute prohibiting flight from a pursuing peace officer. The statute, Cal.
Veh. Code § 2800.1(a)(4) (West 2019), provides, “Any person who, while operating a
motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude
a pursuing peace officer’s motor vehicle” is guilty of a misdemeanor if, among other
essential elements, “[t]he peace officer’s motor vehicle is operated by a peace officer
. . . and that peace officer is wearing a distinctive uniform.” Mathews, 64 Cal. App. 4th at
488 (omission in original). In interpreting “distinctive uniform,” the court applied the plain
meaning of the word “uniform” defined in Webster’s Third New International Dictionary
2498 (unabr. ed. 1986) as “dress of a distinctive design or fashion adopted by or
prescribed for members of a particular group and serving as a means of identification.”
Mathews, 64 Cal. App. 4th at 490 (citing People v. Estrella, 31 Cal. App. 4th 716, 724
(Ct. App. 1995) (adopting the dictionary definition of “uniform” to interpret “distinctive
uniform”)). The court therefore concluded that a police officer’s uniform is “clothing
prescribed for or adopted by a law enforcement agency which serves to identify or
distinguish members of its force.” Mathews, 64 Cal. App. 4th at 490. Reasoning under
the facts of the case that “a badge is not an article of clothing, [although] it may help to
distinguish a law enforcement officer,” the court concluded that the plain clothes officer
with a badge was not in uniform for purposes of the California statute that prohibits
willful fleeing from a police officer in pursuit. Id. at 491.

{34} The Appellate Court of Illinois reached a similar conclusion in People v. Williams,
2015 IL App (1st) 133582, ¶ 1, 44 N.E.3d 534. In Williams, a police officer driving a
marked police vehicle but wearing “civilian dress” apprehended the defendant who fled
from the officer when the officer pursued him for not fully coming to a stop at a stop
sign. Id. ¶ 3. The defendant was convicted of “aggravated fleeing or attempting to elude
a peace officer” in violation of 625 Ill. Comp. Stat. Ann. 5/11-204(a) (2004), which
provides in part, “Any driver or operator of a motor vehicle who, having been given a
visual or audible signal by a peace officer directing such driver or operator to bring his
vehicle to stop, willfully fails or refuses to obey . . . is guilty of a . . . misdemeanor” if,
among other essential elements, the peace officer is in uniform. Williams, 2015 IL App
(1st) 133582, ¶¶ 6-8, 11. Because the evidence established that the officer was in
“civilian dress” when he attempted to apprehend the defendant, the court concluded that
“there can be no doubt that the [s]tate failed to prove an essential element [of fleeing a
peace officer], namely, that of the officer being in uniform.” Id. ¶ 15.

{35} The State argues that the Court of Appeals reliance on a definition of “uniform” in
Webster’s Third New International Dictionary 2498 (unabr. ed. 1986) fails to support the
Court’s own conclusion that a badge, by itself, is not a uniform. Specifically, the State
asserts that to define a uniform as “‘clothing and accessories’ of a ‘distinctive design . . .
serving as a means of identification’” does not mean “that the clothing alone must be
distinctive.” The State asserts instead that the definition means “the clothing and
accessories must be distinctive when considered together.” In other words, the State
asserts that even under the Court of Appeals definition of uniform, Deputy Russ’s dress
“need not be the sole, or even primary means” of identifying him as a police officer. We
reject the State’s alternative construction.

{36} Defining the word uniform, as the Court of Appeals did, to mean “dress of a
distinctive design . . . serving as a means of identification,” Montano, 2018-NMCA-047,
¶ 11 (citation omitted), is significant in two ways. First, because “[d]ress” means
“clothing and accessories[,]” in order to qualify as a uniform, an individual’s attire must
be composed of both clothing and accessories. See id. (citation omitted). The
conjunctive use of “‘and’” in a statute “requires an interpretation that [all] elements . . .
must be present.” Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, ¶ 14, 112 N.M.
97, 811 P.2d 1308. Second, from a purely grammatical perspective, “of a distinctive
design” modifies “dress” for purposes of what constitutes a uniform. Therefore, both the
clothing and the accessories that constitute an individual’s dress must be of a
“distinctive design” that serves “as a means of identification” in order to stand as a
uniform. See Garcia v. Schneider, Inc., 1986-NMCA-127, ¶ 9, 105 N.M. 234, 731 P.2d
377 (“Statutes must be read according to their grammatical sense.”).

{37} In the context of Section 30-22-1.1(A), both the clothing and accessories worn by
a law enforcement officer must be of a “distinctive design” that serves to identify the
individual wearing them as a law enforcement officer. It follows that a badge
alone⸻which undoubtedly constitutes an accessory that serves, in part, to identify the
individual wearing it as a law enforcement officer⸻is not sufficient to constitute a
uniform without distinctive clothing identifying the wearer as a law enforcement officer.
We therefore reject the State’s argument that under the Court of Appeals definition of
uniform, an officer’s clothing and accessories need to be distinctive only “when
considered together.”

{38} We therefore conclude that Deputy Russ’s attire which included “a dress shirt
with tie, dress slacks, and dress shoes” was not a uniform as required by Section 30-22-
1.1(A). His clothing—professional attire—did not in any way distinguish Deputy Russ as
a law enforcement officer. Moreover, while a police officer’s badge is a distinctive
accessory that identifies a police officer, it is not, standing alone, a uniform. We are
particularly persuaded by the fact that in the 1968 change to Section 66-8-124 the
Legislature could have used the definition “badge or uniform” but it did not. Instead, it
deleted “badge” and used “uniform.” We affirm the Court of Appeals conclusion that
Defendant Montano’s conviction for aggravated fleeing a law enforcement officer must
be reversed because Deputy Russ was not in uniform at the time he attempted to stop
Defendant Montano.

IV. APPROPRIATELY MARKED LAW ENFORCEMENT VEHICLE

{39} Defendant Martinez argues that the Court of Appeals interpretation of
“appropriately marked law enforcement vehicle” in Montano, 2018-NMCA-047, was
flawed in view of the plain meaning of Section 30-22-1.1. Specifically, Defendant
Martinez asserts that principles of statutory construction “substantiate that the
Legislature meant for ‘appropriately marked law enforcement vehicle’ to require
lettering, decals, insignia, and coloring clearly identifying the vehicle as a law
enforcement vehicle.” Defendant Martinez accordingly contends that, in applying its
reasoning from Montano, the Court of Appeals erred in concluding that Deputy Gilbert’s
unmarked tan Ford Explorer was an “appropriately marked law enforcement vehicle”
under the statute prohibiting aggravated fleeing a law enforcement officer. The State
responds by asserting that the Court of Appeals was correct in concluding that Deputy
Gilbert’s Ford Explorer was an “appropriately marked law enforcement vehicle”
considering the plain meaning of that term, the legislative purpose of Section 30-22-
1.1(A), and the rules of statutory construction. We agree with Defendant Martinez.

A. Court of Appeals Opinion

{40} To reiterate, the district court ruled that Deputy Gilbert was not in an
“appropriately marked law enforcement vehicle” when he attempted to stop Defendant
Martinez. Deputy Gilbert was driving a tan colored Ford Explorer, an “unmarked patrol
vehicle” used in covert operations to evade detection. “By design, the vehicle bore no
insignias, stripes, decals, labels, seals, symbols, or other pictorial signs or lettering
indicating its identity as a law enforcement vehicle.” However, Deputy Gilbert’s vehicle
was equipped with red and blue LED lights within the grill area that were visible through
the grill even when not activated, as well as a siren with speakers inside the grill, and an
antenna not common to “civilian” vehicles. The Court of Appeals summarily reversed
the district court ruling based on its holding in Montano that the vehicle Deputy Russ
drove in pursuit of Defendant Montano was an “appropriately marked law enforcement
vehicle.” Martinez, A-1-CA-35111, mem. op. ¶¶ 1-2. In Montano, Deputy Russ “was
driving a Ford Expedition that had no decals, striping, insignia, or lettering” anywhere on
the vehicle. 2018-NMCA-047, ¶ 2. However, “[his] vehicle had wigwag headlights, red
and blue flashing lights mounted on the front grill and the top rear window, flashing
brake lights, and a siren.” Id. We must address the opinion in Montano in order to
resolve the issue brought before us by Defendant Martinez.

{41} In Montano the Court of Appeals began its analysis of whether an unmarked
police car may constitute an “‘appropriately marked’ law enforcement vehicle” by looking
to the plain meaning of “appropriately marked.” 2018-NMCA-047, ¶¶ 35-36. Using
Webster’s Third New International Dictionary 1382 (unabr. ed. 1986), the Court of
Appeals observed that “mark” may be defined as “something that gives evidence of
something else” or “a character, device, label, brand, seal, or other sign put on an article
esp[ecially] to show the maker or owner, to certify quality, or for identification.” Montano,
2018-NMCA-047, ¶ 36 (alteration in original) (internal quotation marks omitted). Based
on these definitions the Court of Appeals stated, “In the context of Section 30-22-1.1(A),
we understand the plain meaning of ‘appropriately marked’ to be that the vehicle in
question is marked in a manner that is suitable for being driven by a law enforcement
officer and identified as such.” Montano, 2018-NMCA-047, ¶ 37. The Court of Appeals
considered it “significant that the Legislature did not specifically refer to insignia or
lettering, and instead used only the broader term, ‘mark.’” Id. The Court of Appeals said
that the emergency lights and the siren on Deputy Russ’s vehicle are devices that
evidence and otherwise identify Deputy Russ’s Ford Expedition as a law enforcement
vehicle. Id. As such, the Court of Appeals concluded, Deputy Russ’s vehicle was
“appropriately marked” as required by Section 30-22-1.1(A). Montano, 2018-NMCA-047,
¶ 37.
{42} The Court of Appeals also recognized that a “marked” police vehicle “commonly
refers to a vehicle with lettering, insignia, or striped paint that would indicate the driver
of the vehicle is a law enforcement officer” and that an “unmarked” police vehicle “refers
to a vehicle without any such graphic markings on the exterior.” Id. ¶ 38. Thus, the
Court of Appeals concluded that the phrase “appropriately marked” is ambiguous and
cited this ambiguity as a basis for not applying the plain meaning of the words. Id. ¶ 39.
The Court of Appeals therefore looked to legislative intent as an alternative for
determining what “[appropriately] marked law enforcement vehicle” means under
Section 30-22-1.1(A). Montano, 2018-NMCA-047, ¶¶ 39-40.

{43} The Court of Appeals concluded that “the intent of Section 30-22-1.1(A)’s
requirement that the police vehicle be ‘appropriately marked’ is . . . to establish that the
motorist knows that he is fleeing a law enforcement officer.” Montano, 2018-NMCA-047,
¶ 40. The Court of Appeals then referred to the version of NMSA 1978, Section 66-7-
332(A) (2005) applicable to Defendant Montano’s conviction:

Upon the immediate approach of an authorized emergency vehicle
displaying flashing emergency lights or when the driver is giving audible
signal by siren, exhaust whistle or bell, the driver of every other vehicle
shall yield the right of way and shall immediately drive to a position parallel
to, and as close as possible to, the right-hand edge or curb of the roadway
clear of any intersection and shall stop and remain in that position until the
authorized emergency vehicle has passed, except when otherwise
directed by a police officer.

See Montano, 2018-NMCA-047, ¶ 19. Based on this statutory language, the Court of
Appeals stated, “[A] motorist who sees a vehicle with flashing emergency lights and/or
hears its sirens must pull off the road and stop.” Id. ¶ 42. “[W]hether the motorist can
differentiate a police vehicle from, say, an ambulance is of no consequence for
purposes of establishing the initial obligation to stop.” Id. “Stated another way, a law
enforcement vehicle is ‘appropriately marked’ so long as it has sufficient equipment to
trigger the motorist’s obligation under Section 66-7-332 [(2005)] to come to a stop.”
Montano, 2018-NMCA-047, ¶ 42. Based on this rationale, the Court of Appeals
concluded that “a vehicle equipped with emergency lights, flashing lights, and siren, i.e.,
one consistent with the plain meaning of ‘appropriately marked,’ also meets the
legislative intent underlying Section 30-22-1.1(A).” Montano, 2018-NMCA-047, ¶ 42.
Therefore, the Court of Appeals concluded, “the siren along with the combination of
flashing and alternating lights on [Deputy] Russ’s vehicle were sufficient to enable
Defendant [Montano] to know immediately, not only that it was an emergency vehicle,
but that it was a law enforcement vehicle in particular.” Id. ¶ 43.

{44} Finally, the Court of Appeals considered whether its conclusion that the siren and
combination of flashing and alternating lights, with which Deputy Russ’s Ford Expedition
was equipped, satisfied the “appropriately marked” requirement of the aggravated
fleeing statute, thereby rendering the additional language in the statute surplusage and
meaningless contrary to the canons of statutory construction. Montano, 2018-NMCA-
047, ¶ 44. To reiterate once again, Section 30-22-1.1(A) requires not only that the
pursuing law enforcement officer be “in an appropriately marked law enforcement
vehicle” but also that the perpetrator be driving in a reckless manner that is a danger to
the life of another “after being given a visual or audible signal to stop, whether by hand,
voice, emergency light, flashing light, siren or other signal” by the officer.

{45} In a brief analysis of this question, the Court of Appeals concluded that its
construction of the statute did not render another portion of the statute superfluous.
Montano, 2018-NMCA-047, ¶ 45. The Court of Appeals gave three reasons in support
of its conclusion. First, the Court of Appeals stated that the “visual or audible signal to
stop” required by Section 30-22-1.1(A) “may be given by any number of means,
including hand or voice,” and “[t]hus, the flashing lights and/or siren that satisfy the
appropriately marked vehicle element will not necessarily be the, or at least the only,
visual or audible signal to stop that the officer gives.” Montano, 2018-NMCA-047, ¶ 45.
Second, the Court of Appeals stated that because Section 30-22-1.1(A) sets out
examples of the visual or audible signal to stop in the disjunctive (i.e., “hand, voice,
emergency light, flashing light, siren or other signal”), not all of the equipment activated
by Deputy Russ during his pursuit of Defendant Montano (i.e., “siren, flashing red and
blue lights, and wigwag lights”) was required to signal Defendant Montano to stop.
Montano, 2018-NMCA-047, ¶ 45. Third, the Court of Appeals stated that the same
evidence may be used to satisfy both requirements of Section 30-22-1.1(A): the “visual
or audible signal to stop” and the “appropriately marked law enforcement vehicle.”
Montano, 2018-NMCA-047, ¶ 45. The Court of Appeals relied on the dissenting opinion
in People v. Hudson, 136 P.3d 168, 177 (Cal. 2006) for this proposition, in which Justice
Moreno wrote that “the requirement that a police vehicle must be distinctively marked
can be satisfied, in part, by the same evidence used to establish the additional
requirements that the vehicle exhibit a red lamp that is visible from the front and that the
suspect reasonably should have seen, and sound a siren as reasonably necessary.”
See Montano, 2018-NMCA-047, ¶ 45.

{46} As an aside, the Court of Appeals concluded its discussion by stating that it was
“sensitive to the public concern expressed . . . about persons posing as law
enforcement officers in vehicles equipped with emergency lights and sirens who stop
and prey upon other motorists.” Id. ¶ 46. The Court of Appeals added that it has “no
evidence that this consideration entered into the motivation of any of the members of
our Legislature in enacting Section 30-22-1.1[, and f]or this reason, it does not inform
our construction of Section 30-22-1.1(A).” Montano, 2018-NMCA-047, ¶ 46.

B. Analysis

{47} “[I]t is part of the essence of judicial responsibility to search for and effectuate
the legislative intent—the purpose or object—underlying the statute.” State ex rel.
Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352. Judicial
responsibility compels our conclusion that the Court of Appeals analysis of Section 30-
22-1.1(A) is flawed in three ways: (1) While defining the statutory term “mark,” the
analysis fails to fully appreciate the significance of “appropriate” in the statutory element
“appropriately marked law enforcement vehicle,” (2) the analytical resolution of
ambiguity in the statutory phrase “appropriately marked” is overbroad in light of the
import of related statutes in the Motor Vehicle Code, and (3) the analysis renders
statutory language surplusage and meaningless in violation of canons of statutory
construction. We consider each of these flaws in turn, in light of the weight of authority
in other jurisdictions.

1. Plain meaning of “appropriately marked”

{48} In considering the plain meaning of “appropriately marked,” the Court of Appeals
focused on “mark” as “something that gives evidence of something else” or “a character,
device, label, brand, seal, or other sign put on an article esp[ecially] to show the maker
or owner, to certify quality, or for identification.” Montano, 2018-NMCA-047, ¶ 36
(alteration in original) (emphasis omitted) (internal quotation marks and citation omitted).
Acknowledging that an “appropriately marked” law enforcement vehicle means “the
vehicle in question is marked in a manner that is suitable for being driven by a law
enforcement officer and identified as such,” id. ¶ 37, the Court of Appeals glossed over
the significance of “appropriate” as a statutory element of Section 30-22-1.1(A).

{49} Webster’s Third New International Dictionary 106 (unabr. ed. 1986) states that
“appropriate” means “specially suitable” including “specially suitable to [a] use.” It
follows that a plain meaning construction of “appropriately marked law enforcement
vehicle” contemplates that such a vehicle must bear “a character, device, label, brand,
seal, or other sign” that not only makes it suitable to be driven by a law enforcement
officer, but also that sets it apart as specially suitable to law enforcement use. See id. at
106, 1382. As discussed further below, even assuming that a siren and lights constitute
devices that fall into the category of markings, such markings alone are insufficient to
set apart a vehicle as specially suitable to law enforcement use and therefore do not
satisfy the requirement of Section 30-22-1.1(A) that a pursuing officer under the statute
be in an “appropriately marked law enforcement vehicle.” Instead, as Defendant
Martinez argues in his brief, in order to be set apart as specially suitable to law
enforcement use, a police vehicle must bear decals or other prominent and highly
visible insignia that identify for the public the vehicles that are in fact “law enforcement
vehicles used in police pursuits.”

2. Ambiguity in the Court of Appeals construction of “appropriately marked”

{50} The Court of Appeals acknowledged the patent ambiguity in its construction of
“appropriately marked” as including Deputy Russ’s Ford Expedition that bore no decals,
striping, insignia, or lettering anywhere on the vehicle. See Montano, 2018-NMCA-047,
¶¶ 38-43. In its attempt to resolve the ambiguity, the Court of Appeals looked to the
legislative intent of Section 30-22-1.1(A) and read the aggravated fleeing statute in
conjunction with Section 66-7-332(A) (2005) to conclude that “the siren along with the
combination of flashing and alternating lights on [Deputy] Russ’s vehicle were sufficient
to enable Defendant [Montano] to know immediately, not only that it was an emergency
vehicle, but that it was a law enforcement vehicle in particular.” Montano, 2018-NMCA-
047, ¶¶ 42-43.

{51} Defendant Martinez asserts that the Court of Appeals analysis is contrary to the
“history, background, structure of the statute, and its interplay with other [related]
statutes” aimed at effectuating the Legislature’s goal of making police vehicles engaged
in pursuits highly visible to both defendants and to the general public—“a goal which is
best served by interpreting ‘appropriately marked law enforcement vehicle’ in
accordance with its commonly understood meaning” under Section 30-22-1.1(A). We
agree.

{52} The Court of Appeals relied heavily on Section 66-7-332(A) (2005) for the
proposition that “a motorist who sees a vehicle with flashing emergency lights and/or
hears its siren must pull off the road and stop” and that “a vehicle equipped with
emergency lights, flashing lights, and siren, i.e., one consistent with the plain meaning
of ‘appropriately marked,’ also meets the legislative intent underlying Section 30-22-
1.1(A)” of ensuring that defendants understand that they are fleeing a law enforcement
officer. Montano, 2018-NMCA-047, ¶¶ 40, 42.

{53} The Court of Appeals analysis of the legislative intent of Section 30-22-1.1(A)
that includes Section 66-7-332 (2005) is overbroad and therefore flawed. Section 66-7-
332(A) (2005) requires all drivers to pull over and stop “[u]pon the immediate approach
of an authorized emergency vehicle displaying flashing emergency lights or when the
driver is giving audible signal by siren[.]” An “authorized emergency vehicle” is in turn
defined as “any fire department vehicle, police vehicle and ambulance and any
emergency vehicles of municipal departments or public utilities that are designated or
authorized as emergency vehicles by the director of the New Mexico state police
division of the department of public safety or local authorities.” NMSA 1978, § 66-1-
4.1(F) (2017). The obvious purpose of these statutes is to require traffic to pull over to
allow an emergency vehicle to attend to its emergency call as quickly and safely as
possible. Once the emergency vehicle passes, traffic can resume moving. This does not
compare to a police officer’s nonconsensual traffic stop of a single driver based on
reasonable suspicion or probable cause of a crime. Emergency vehicles such as fire
trucks and ambulances are easily identifiable and not outfitted to avoid detection.
Additionally, pursuant to NMSA 1978, Section 66-3-835(C) (2019), [f]lashing lights are
prohibited except . . . on authorized emergency vehicles, school buses, snow-removal
equipment and highway-marking equipment.”

{54} Even assuming that it is reasonable for members of the public to infer that all
vehicles equipped with flashing lights alone or flashing lights and a siren are “authorized
emergency vehicles,” there is no basis for a member of the public to infer from the same
characteristics that such a vehicle must be a law enforcement vehicle. See D’Val
Westphal, Rainbow of flashing vehicle lights confusing, Albuquerque J., July 16, 2018,
https://www.abqjournal.com/1197014/rainbow-of-flashing-vehicle-lights-confusing.html
(last visited February 3, 2020) (discussing the confusion of the public concerning what
vehicles and departments/organizations can use which type of vehicle lights and how a
driver should respond based on the myriad of vehicles that currently use flashing lights).

{55} Deputy Russ’s unmarked tan Ford Expedition may be unmarked for good
reasons, including the ability to conduct covert investigations while avoiding detection
by the public and, more importantly, by those being investigated. The stealthy
functioning of Deputy Russ’s vehicle is admittedly different than the functioning of the
marked vehicles used by police who conduct regular traffic stops and interact with the
public on a regular basis. Reiterating the definition of “mark” as that which provides
identification, we cannot conclude that lights or a siren are unique in identifying a police
officer’s vehicle where emergency vehicles, tow trucks, and even civilian vehicles may
be equipped with these same signaling devices.

{56} Rather, in accordance with the plain meaning of the phrase “appropriately
marked,” the only meaningful way to set apart a law enforcement vehicle as specially
suitable for police use, and in so doing to ensure that members of the public understand
in a given situation that they are being pursued by a law enforcement officer, is to
construe “appropriately marked law enforcement vehicle” for purposes of Section 30-22-
1.1(A) to mean a police vehicle bearing decals or other prominent and visible insignia
identifying it as such. The weight of authority in other jurisdictions supports this
conclusion, as described later in this analysis.

3. Surplusage in Section 30-22-1.1(A) resulting from the Court of Appeals
construction of the statute

{57} Finally, the Court of Appeals concluded that its interpretation of Section 30-22-
1.1(A) does not render language in the statute surplusage or otherwise meaningless.
Montano, 2018-NMCA-047, ¶¶ 44-45. Defendant Martinez argues that “the Court of
Appeals interpretation conflates distinct requirements . . . in violation of well-established
canons of statutory construction.” Specifically, Defendant Martinez asserts, “If all the
Legislature had meant to require was flashing lights and a siren, then there would have
been no need to describe the vehicle itself as ‘appropriately marked’ and then
separately require a stop signal using lights and a siren.” We agree.

{58} In support of its conclusion, as noted previously the Court of Appeals relied on
the dissent in Hudson, 136 P.3d at 177, in which Justice Moreno wrote that “the
requirement that a police vehicle must be distinctively marked can be satisfied, in part,
by the same evidence used to establish the additional requirements that the vehicle
exhibit a red lamp that is visible from the front and that the suspect reasonably should
have seen, and sound a siren as reasonably necessary.” Because this was neither the
majority view of the California Supreme Court nor a position consistent with the view
any other case addressing the issue has taken, we are unpersuaded. To the contrary,
the opposite conclusion was reached by the Court of Appeals of Maryland in Williams v.
State, 24 A.3d 210, 233-34 (Md. Ct. Spec. App. 2011) (concluding that an unmarked
police car equipped with only lights and sirens did not constitute an appropriately
marked police vehicle within the meaning of the state statute that prohibits “attempting
to elude a police officer” because reading the statute to permit an officer’s activation of
lights and sirens to satisfy the requirement that the officer give a visual or audible signal
to stop and also the requirement that the officer be in an appropriately marked police
vehicle would render the language requiring the marking of a police vehicle superfluous
and meaningless (citation omitted)).

{59} Nor are we persuaded by the Court of Appeals alternatively stated rationale in
support of its conclusion: (1) Flashing lights and a siren may not be the police officer’s
only visual signal to stop or (2) not all of the equipment Deputy Russ activated during
his pursuit of Defendant Montano (i.e., siren, flashing red and blue lights, and wigwag
headlights) was required to signal Defendant Montano to stop. See Montano, 2018-
NMCA-047, ¶ 45. Simply put, if under the plain meaning of “appropriately marked,”
lights and a siren do not set a vehicle apart as specially suitable law for law
enforcement use, such equipment in any combination can in no case stand as evidence
of appropriate markings for a law enforcement vehicle for purposes of Section 30-22-
1.1(A). Any construction to the contrary renders essential language in the aggravated
fleeing statute surplusage and otherwise meaningless.

4. The law in other jurisdictions

{60} For all the foregoing reasons, we conclude that the Court of Appeals erred in its
conclusion in Montano that the vehicle driven by Deputy Russ was an “appropriately
marked law enforcement vehicle.” The weight of authority from other states gives added
support to our conclusion.

{61} Under a 1983 version of Washington law, the crime of eluding a police officer
required, in part, that the officer the perpetrator was eluding be in a “vehicle [that] shall
be appropriately marked showing it to be an official police vehicle.” Wash. Rev. Code
Ann. § 46.61.024(1) (1983, amended 2003, 2010); see State v. Argueta, 27 P.3d 242,
244 & n.3 (Wash. Ct. App. 2001). Construing the language in the statute prohibiting
attempts to elude a police officer, the Court of Appeals of Washington concluded that
emergency equipment was insufficient “to render a police vehicle appropriately marked
for purposes of the eluding statute.” Argueta, 27 P.3d at 245-46. The court reasoned
that based on the plain meaning of the dictionary definitions of “appropriate” and
“mark”⸻which respectively mean “specially suitable” and “a character, device, label,
brand, seal, or other sign put on an article esp. to show the maker or owner, to certify
quality, or for identification”⸻“[e]mergency equipment is a signaling device, not an
identifying device.” Id. at 245 & ns.11-14 (internal quotation marks omitted) (quoting
Webster’s Third New International Dictionary 106, 1382-83 (unabr. ed. 1993)). The
court continued that

we must assume that the [l]egislature intended to require something more
than the presence of activated emergency equipment in order to render a
police vehicle appropriately marked for purposes of the eluding statute.
That “something more” the [l]egislature required is a “mark,” which, under
the ordinary meaning of the term, means an insignia identifying the vehicle
as an official police vehicle.

Argueta, 27 P.3d at 245-46.

{62} Other states, including Louisiana, Maryland, North Dakota, Pennsylvania,
Wisconsin, and California have reached similar conclusions construing their fleeing and
eluding a police officer statutes. See State v. Harris, 261 So. 3d 149, 154-56 (La. Ct.
App. 2018) (determining under the Louisiana statute criminalizing flight from an officer,
which requires the use of a marked police vehicle, that a police car equipped with
emergency lights, a siren, and spotlights but no other marking or insignia did not
constitute a marked police vehicle); Williams, 24 A.3d at 234) (concluding that an
unmarked police car equipped with only lights and sirens did not constitute an
appropriately marked police vehicle within the meaning of the Maryland statute
prohibiting knowing failure to stop a vehicle when signaled by a police officer in an
appropriately marked police vehicle because “[r]eading the statute to permit an officer’s
activation of lights and sirens to satisfy [both] the requirement that the officer give a
visual or audible signal to stop and the requirement that the officer be in” an
appropriately marked police vehicle would render the language requiring the marking of
a police vehicle superfluous and meaningless); State v. Erdman, 422 N.W.2d 808, 809-
10 (N.D. 1988) (concluding that the defendant, pursued by plain-clothed officers driving
unmarked vehicles, could not be convicted of fleeing or attempting to elude police
officers for willfully refusing to stop a vehicle under the North Dakota statute that
required uniformed officers driving official marked police vehicles); Commonwealth. v.
Durrett King, 195 A.3d 255, 262 (Pa. 2018) (determining, for purposes of the
Pennsylvania statute prohibiting attempts to elude a pursuing police vehicle, that the
term “markings” does not include the lights and siren on a police car and only includes
the “graphics or decals identifying the department or agency of the vehicle”); State v.
Opperman, 456 N.W.2d 625, 626-28 (Wis. Ct. App. 1990) (concluding that a police
vehicle equipped with only red lights and a siren and no police department insignia or
decals was not a “marked police vehicle” for purposes of the Wisconsin statute
prohibiting a knowing attempt to elude or flee a police officer in a marked police vehicle,
notwithstanding that the defendant accelerated his vehicle when he saw the vehicle with
red lights engaged); see also Hudson, 136 P.3d at 175 (stating that in order to establish
that a police vehicle is distinctively marked for purposes of the California statute that
prohibits willful fleeing or attempting to a elude a police officer’s motor vehicle, “a
pursuing police vehicle must have distinguishing features in addition to a red light and
siren”).

{63} Additionally, the Indiana Court of Appeals acknowledged the importance of police
officer recognition in protecting the public from police impersonators. In doing so, it cited
its statute requiring an officer to be “(1) wearing a distinctive uniform and a badge of
authority; or (2) operating a motor vehicle that is clearly marked as a police vehicle[] that
will clearly show the officer or the officer’s vehicle to casual observations to be an officer
or a police vehicle[.]” Ervin v. State, 968 N.E.2d 315, 318 (Ind. Ct. App. 2012). “The
statute seeks to help distinguish law enforcement officers from those individuals on our
highways who, for illicit purposes, impersonate law enforcement officers.” Id. (citing
Maynard v. State, 859 N.E.2d 1272, 1274 (Ind. Ct. App. 2007)).

{64} A minority of jurisdictions, including Kansas, Massachusetts, and Ohio have
reached the opposite conclusion concerning whether lights and a siren on an otherwise
unmarked police vehicle are sufficient markings for purposes of those state statutes that
prohibit fleeing and eluding a law enforcement officer. See State v. Parker, 430 P.3d
975, 984 (Kan. 2018); Commonwealth v. Ross, 896 N.E.2d 647, 649-50 (Mass. App. Ct.
2008); State v. Bradley, 55 N.E.3d 580, 584-85 (Ohio Ct. App. 2015). We do not find
this minority of cases persuasive.

5. Result

{65} Applying the foregoing analysis to the facts in the case of Defendant Martinez,
we hold that the district court correctly concluded that the vehicle Deputy Gilbert was
driving when he attempted to stop Defendant Martinez was not “an appropriately
marked law enforcement vehicle” as required by Section 30-22.1.1(A). Deputy Gilbert
himself described that vehicle as “my unmarked patrol vehicle.” The vehicle “bore no
insignias, stripes, decals, labels, seals, symbols or other pictorial signs or lettering
indicating its identity as a law enforcement vehicle.” While the vehicle was equipped
with “red and blue LED lights located within the grill area that were visible through the
grill even when not activated” and had a siren with speakers located inside the grill, as
well as “an antenna that is not common to civilian vehicles,” there is nothing distinctive
about this equipment to identify the vehicle as a police vehicle.

{66} Without more, like the Ford Expedition Deputy Russ drove in Montano, the lights,
siren, and antenna that equipped Deputy Gilbert’s Ford Explorer were insufficient to
constitute appropriate markings indicating to the public that the vehicle was in fact a law
enforcement vehicle in accordance with the plain meaning of the statute and legislative
intent underlying Section 30-22-1.1(A). Moreover, activating the red and blue LED lights
and siren located within the grill of a vehicle that has no insignias, stripes, decals,
labels, seals, symbols, or other signs or lettering identifying the vehicle as a law
enforcement vehicle does not automatically transform an unmarked police vehicle into a
marked police vehicle. Because Deputy Gilbert’s vehicle was not appropriately marked,
we conclude that the Court of Appeals erred in reversing the district court dismissal of
his aggravated fleeing charge.

V. CONCLUSION

{67} We affirm the holding of the Court of Appeals in Montano in part, and we reverse
in part. Specifically, we affirm the holding that Deputy Russ was not “a uniformed law
enforcement officer” as required by Section 30-22-1.1(A), and we reverse the holding
that Deputy Russ was “in an appropriately marked law enforcement vehicle” as required
by Section 30-22-1.1(A). In accordance with this holding and the statute, we also
reverse the Court of Appeals holding in Martinez that Deputy Gilbert was “in an
appropriately marked law enforcement vehicle.”
{68} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

NAKAMURA, Chief Justice (dissenting).

{69} Imagine a driver looks in his side mirror as he approaches a stop sign and
recognizes, behind him, a law enforcement officer whom the driver personally knows.
The driver then rolls through the stop sign and takes off. When the driver takes off, the
officer engages his vehicle’s red and blue lights and siren, signaling the driver to stop.
Instead of pulling over, the driver continues to speed away, revving his engine and
taking wide turns at intersections, locking up his brakes. There are many other vehicles
on the road, including one with a child in an infant seat, and several bystanders. The
officer pursues the driver, but ultimately abandons the chase as too dangerous. Later,
the driver is arrested for aggravated fleeing. These are the facts in Defendant
Martinez’s case.

{70} The majority holds that Defendant Martinez is not criminally liable for aggravated
fleeing under these circumstances, because the pursuing officer’s vehicle did not bear
“decals or other prominent and visible insignia,” Maj. op. ¶ 56, and was therefore not
“appropriately marked” within the meaning of the statute. Similarly, in the companion
case of Defendant Montano, the majority holds that a prominently displayed badge,
together with professional attire, is not a “uniform” within the meaning of the statute,
because a uniform must include clothing of a distinctive design. Maj. op. ¶¶ 37-38.
Thus, the majority treats an officer’s appropriately marked vehicle and uniform as
elements of the crime of aggravated fleeing, and relies primarily upon dictionary and
technical regulatory definitions to interpret those elements. In doing so, the majority
places some defendants who know that their pursuer is law enforcement—a defendant
like Martinez—beyond the reach of the aggravated fleeing statute.

{71} I respectfully dissent. The terms at issue are not standalone elements of the
crime of aggravated fleeing; rather, they are identifying factors bearing on the
defendant’s knowledge that he is evading law enforcement. I would therefore adopt a
test similar to the test established by the Court of Appeals in Archuleta, 1994-NMCA-
072, ¶ 11: namely, that a jury may find the knowledge element of the statute to be
satisfied where an officer’s uniform, vehicle, and other circumstances surrounding the
interaction between the officer and the defendant are sufficient to notify a reasonable
person that he has been signaled to stop by law enforcement. A jury may also consider
evidence of a defendant’s subjective knowledge that his pursuer was police. Explained
in further detail below is why the construction I propose (1) is contextual; (2) furthers,
rather than compromises the intent of the legislature to protect the public from drivers
who knowingly and recklessly evade law enforcement; and (3) is consistent with our
interpretation of other statutory uses of similar terms. Next, explained under this
standard, is why I would affirm Defendant Montano’s conviction and remand Defendant
Martinez’s case for further proceedings consistent with this dissent.

I. CONTEXTUAL INTERPRETATION

{72} “[I]t is a fundamental principle of statutory construction (and, indeed, of language
itself) that the meaning of a word cannot be determined in isolation, but must be drawn
from the context in which it is used[.]” Yates v. United States, 574 U.S. 528, 537 (2015)
(internal quotation marks and citation omitted). Context may, and often does, explain
why dictionary definitions are plainly inapplicable. Id.; accord Cummings v. X-Ray
Assocs., 1996-NMSC-035, ¶ 45, 121 N.M. 821, 918 P.2d 1321. Here, the statutory
context of the terms before us is as follows:

A. Aggravated fleeing a law enforcement officer consists of a
person willfully and carelessly driving his vehicle in a manner that
endangers the life of another person after being given a visual or audible
signal to stop, whether by hand, voice, emergency light, flashing light,
siren or other signal, by a uniformed law enforcement officer in an
appropriately marked law enforcement vehicle in pursuit in accordance
with the provisions of the Law Enforcement Safe Pursuit Act [LESPA]
[NMSA 1978, § 29-20-1 to -4 (2003)].

Section 30-22-1.1(A). We previously interpreted this language to require proof of the
defendant’s knowledge that (1) a person who is a law enforcement officer, as
designated by his uniform and marked vehicle, (2) signaled the defendant to stop.
Padilla, 2008-NMSC-006, ¶ 15, 143 N.M. 31, 176 P.3d 299. We described the officer’s
uniform and appropriately marked car as part of the “backdrop” against which the
defendant’s knowledge is evaluated. Id. ¶ 15. In my view, this context supports an
interpretation of “uniform” and “appropriately marked” not as elements of the crime, but
as descriptions bearing on an attendant circumstance in the statute—namely, the
pursuer’s identity.

{73} An attendant circumstance is “[a] fact that is situationally relevant to a particular
event or occurrence.” Circumstance, Black’s Law Dictionary (11th ed. 2019). “A fact-
finder often reviews the attendant circumstances of a crime to learn, for example, the
perpetrator’s motive or intent.” Id. Our appellate courts have addressed attendant
circumstances in the context of a crime with significant similarities to aggravated fleeing:
aggravated battery upon a peace officer. NMSA 1978, § 30-22-25 (1971). Aggravated
battery upon a peace officer is defined as “the unlawful touching or application of force
to the person of a peace officer with intent to injure that peace officer while he is in the
lawful discharge of his duties.” Section 30-22-25(A). Examining this provision, the
Court of Appeals held that a “requirement of knowledge attaches to the attendant
circumstance of the victim’s status as a peace officer.” State v. Nozie, 2007-NMCA-
131, ¶ 11, 142 N.M. 626, 168 P.3d 756, aff’d, 2009-NMSC-018, ¶ 11, 146 N.M. 142, 207
P.3d 1119. This Court agreed, explaining that our “Legislature intended knowledge of
the victim’s identity as a peace officer to be an essential element of the crime.” Nozie,
2009-NMSC-018, ¶ 30. However, we emphasized that “it is the defendant’s mental
state, rather than the victim’s conduct, that is the touchstone of the knowledge
requirement.” Id. ¶ 32. We also noted that “[b]ecause an individual’s intent is seldom
subject to proof by direct evidence, intent may be proved by circumstantial evidence.”
Id. (alteration in original) (citation omitted). We explained that “[s]uch circumstantial
evidence may include, but is not limited to, the fact that the victim was in full uniform,
had a badge visibly displayed, was driving a marked police vehicle, or had identified
himself or herself as a peace officer.” Id. In other words, the defendant’s intent must be
discerned from the totality of the circumstances bearing on the victim’s identity as a
peace officer.

{74} Aggravated fleeing likewise requires proof of an act toward an officer (fleeing) as
an attendant circumstance, and the knowledge requirement of the statute carries over to
that circumstance. Padilla, 2008-NMSC-006, ¶ 15-16. Uniforms and appropriately
marked cars are obvious identifiers of law enforcement, and thus their inclusion in the
statute is unsurprising, particularly because the statute specifically addresses reckless
evasion by vehicle. However, that is no reason to treat these identifiers as elements of
the crime, much less to define them strictly. Rather, as in the aggravated battery
context, the defendant’s mental state—not the officer’s conduct or even appearance—
must be the touchstone of the knowledge requirement. See id. ¶ 11 (“Criminal liability is
typically defined by the conduct of the accused, not the conduct of the police officer or
the law enforcement agency tasked to enforce the criminal code.”).

II. LEGISLATIVE INTENT AND AVOIDING ABSURD RESULTS

{75} Legislative intent, the lodestar of statutory construction, State v. Chavez, 1966-
NMSC-217, ¶ 7, 77 N.M. 79, 419 P.2d 456, also favors the pragmatic framework
proposed in this dissent. The purpose of the aggravated fleeing statute is to avoid the
public hazard created by drivers who knowingly and recklessly evade law enforcement.
Padilla, 2008-NMSC-006, ¶ 21 (“The statute appears to be designed to protect the
general public from the dangers of a high speed chase.”); see Aaron Baca, State v.
Padilla: An Aggravated Reading of the State’s Aggravated Fleeing a Police Officer
Statute, 39 N.M. L. Rev. 485, 488 (2009) (citing Leslie Linthicum, Wrong Place, Wrong
Time, Albuquerque J., Sept. 9, 2001, at A1 and David Miles, Bill Beefs Up Penalties for
Fleeing From Officers, Albuquerque J., Feb. 15, 2002, at A10) (discussing that, two
years before the aggravated fleeing statute’s enactment, six people were killed in traffic
accidents caused by defendants fleeing officers). In State v. Vest, 2018-NMCA-060, ¶
8, 428 P.3d 287, cert. granted (S-1-SC-37210, Sept. 24, 2018), the Court of Appeals
noted that, upon passing the aggravated fleeing statute, a fourth-degree felony, the
Legislature nevertheless retained, as a misdemeanor offense, the statute criminalizing
resisting, evading, or obstructing an officer, including vehicular flight from an officer, in
Section 30-22-1. The State is required to prove, under any of the subsections in the
misdemeanor statute, that the defendant took some resistive, evasive, or obstructive
action knowing that the person resisted, evaded, or obstructed was an officer. See
State v. Jimenez, 2017-NMCA-039, ¶ 28, 392 P.3d 668 (citing UJI 14-2215 NMRA).
What distinguishes aggravated fleeing from other forms of evading or obstructing law
enforcement is, then, the “legislative intent to more severely punish people who
jeopardize the safety of others while fleeing from law enforcement officers.” Vest, 2018-
NMCA-060, ¶ 8

{76} Given this purpose, it is difficult to conceive that the Legislature intended only
defendants pursued by vehicles with decals or insignias and officers in sufficiently
distinctive clothing to come within the ambit of the aggravated fleeing statute, especially
where—as in Defendant Martinez’s case—there is evidence of the defendant’s
subjective knowledge that he was being pursued by police. Nor do I think Defendant
Martinez’s case is an isolated one. Many of our citizens live in “small towns where
everyone knows the constable and recognizes his official status.” Archuleta, 1994-
NMCA-072, ¶ 11. Even in larger counties, drivers may recognize officers with whom
they have had past encounters. I also note that, while the statute provides that any
pursuit which may form the basis of an aggravated fleeing charge shall be “in
accordance with the provisions of the [LESPA],” Section 30-22-1.1(A), the LESPA does
not contemplate that only officers in vehicles with prominent insignias, logos, or decals
will engage in high-speed pursuits of those evading law enforcement. The statute
simply states that an “authorized emergency vehicle,” may engage in such pursuit,
Section 29-20-2, and the guidelines for pursuit policies make no provision for use of a
particular law enforcement vehicle. Section 29-20-4.

{77} Beyond this, I am compelled to point out the absurd results—results contradictory
to the statute’s intent—posed by the majority’s narrow interpretation of the terms at
issue. This Court has long held that “[n]o rule of construction necessitates our
acceptance of an interpretation resulting in patently absurd consequences.” State v.
Davis, 2003-NMSC-022, ¶ 13, 134 N.M. 172, 74 P.3d 1064 (quoting United States v.
Brown, 333 U.S. 18, 27 (1948)). “[T]he principles of strict statutory construction of penal
statutes must not override common sense and the evident statutory purpose.” Id.; see
also State v. Llewellyn, 1917-NMSC-031, ¶¶ 42-44, 23 N.M. 43, 167 P. 414. Officers
are required by the LESPA to terminate vehicular pursuit if the danger to the community
outweighs whatever benefits might flow from immediate capture of a fleeing suspect.
See § 29-20-4(C)(2), (3). This is, of course, what occurred in Defendant Martinez’s
case. Accordingly, 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. 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. Maj. op. ¶ 55. The distinction is perplexing. For the reasons just stated,
the only identifying feature of a law enforcement vehicle may be flashing red and blue
lights in the defendant’s rearview mirror, perhaps accompanied by a siren. The fact that
other emergency departments, such as the fire department, may also have vehicles
equipped with flashing lights and/or sirens (though we have no record before us
demonstrating that other emergency vehicles have the same array of equipment as the
law enforcement vehicles in these cases) does not alter this reality. In short, the
majority’s interpretation of “appropriately marked” excludes as insufficient the only
markings perceivable to a large percentage of those pursued by a law enforcement
vehicle.

{78} Similar problems attend the majority’s construction of “uniform.” Again,
defendants may never see the pursuing officer’s uniform during flight. Yet, according to
the majority, the defendant may only be convicted of aggravated fleeing if the State
proves that the officer was wearing sufficiently distinctive clothing rather than a badge or
other law enforcement equipment. Maj. op. ¶ 37-38.

{79} The majority maintains that a strict construction is necessary, because to do
otherwise would render the terms at issue superfluous. One element of aggravated
fleeing is the defendant’s failure to heed a signal to stop. Section 30-22-1.1(A). The
majority concludes that signaling equipment must not, therefore, constitute an
“appropriately marked” vehicle because the manner of signaling and appropriate
markings could then be one in the same. Maj. op. ¶¶ 56-58. The first problem with this
argument is of course the majority’s treatment of a uniform and appropriate markings as
elements. Moreover, the statute itself gives an array of other examples of possible
signals (separate from light or sound equipment), including signals by hand or voice.
Section 30-22-1.1(A). In any event, overlapping evidence on two elements (knowledge
of a signal to stop and knowledge that the signal was from law enforcement) still
requires the jury to find that each was proved beyond a reasonable doubt. In the statute
before us, the overlap is a natural one; it is commonsense that one of the primary
identifiers of law enforcement (blue and red lights and a siren) may likewise be a means
of signaling to a driver that he or she must stop. This reality does not render
“appropriately marked” superfluous. Juries have the sophistication to understand that
evidence may bear on multiple elements of an offense.

III. CONSTRUCTION OF SECTION 66-8-124(A)

{80} For their interpretation of “uniform,” both the Court of Appeals and the majority
also distinguish prior caselaw interpreting this word in the context of the statute
regulating arrests for violations of the motor vehicle code. Montano, 2018-NMCA-047,
¶¶ 21-30; Maj. op. ¶¶ 24-28. However, nothing in that statute or related caselaw
compels the conclusion that the Legislature intended the word “uniform” to be read
strictly in the aggravated fleeing context. Rather, the caselaw interpreting “uniform,” in
Sections 66-8-124(A) and 66-8-125(C) support the interpretation offered here.

{81} Sections 66-8-124(A) and 66-8-125(C) provide that no person shall be arrested
for a traffic or motor vehicle violation except by an officer wearing a “uniform.” In
Archuleta, the Court of Appeals construed the term “uniform” to have a functional
significance, given that “the intention of the legislature in requiring the officer to wear a
uniform plainly indicating his official status was to enable the motorist to be certain that
the officer who stops him is, in fact, a police officer.” 1994-NMCA-072, ¶ 9. The Court
determined that the uniform requirement is satisfied if there are either objective criteria
to put the defendant on notice that an officer was indeed an officer, or subjective
reasons unique to the particular defendant that established the defendant knew the
arresting officer was police. Id. ¶ 11.

{82} Arguably, a similar test is more fitting in the aggravated fleeing context for the
following reasons. The uniform requirement in Section 66-8-124(A) is not an aspect of
the substantive motor vehicle law for which an arrest might be appropriate. No matter
what an officer is wearing, speeding is speeding. By contrast, in the aggravated fleeing
statute, the defendant’s knowledge that the officer is law enforcement is an element of
the crime, and therefore the officer’s uniform is described in the statute as directly
relevant to the element of knowledge. This difference between the statutes matters
because, even though the Court of Appeals did not strictly construe the uniform
requirement in Section 66-8-124(A), there would be some rational justification for doing
so. Requiring officers who make traffic stops to dress formally gives those caught
speeding or perpetrating other minor traffic crimes assurance that they are in fact
dealing with a police officer during the traffic stop. This assurance comes at the
marginal cost that a few speeders will avoid punishment for illegal conduct if there is not
an adequate supply of uniformed officers to make traffic stops and issue citations.
However, the motoring public is aware of the risk of punishment, and this potential
sanction assures compliance with traffic laws generally. The same dynamic is not
present if “uniform” in the aggravated fleeing statute is strictly construed. Instead, a
strict construction has the pernicious effect of permitting some offenders who knowingly
disobey officer commands and then flee in a manner that endangers the public to avoid
criminal punishment simply because an officer’s uniform and/or vehicle were not
sufficiently distinctive.

{83} It is important to clarify that neither the test posed here, nor the test in Archuleta,
eliminates a jury’s authority to assess and judge what a defendant knew at the time of
flight. The jury is free to find, as a matter of fact, that a defendant fleeing an officer
could not be expected to discern that the person fled was police. What I do not accept
is the notion that our Legislature meant to embed in the aggravated fleeing statute the
presumption that a defendant can only know that he or she is fleeing police when police
are formally attired and operating a vehicle with decals or insignia.

IV. APPLICATION OF A PRAGMATIC CONSTRUCTION IN THE CONSOLIDATED
CASES BEFORE US

A. Montano

{84} The district court in Montano shared the conclusions reached in this writing.
2018-NMCA-047, ¶¶ 40-42. The court concluded that Padilla viewed the statute’s
uniform and vehicle provisions as “the backdrop against which the defendant’s
knowledge is evaluated because it’s the defendant’s knowledge of the officer that’s the
important thing under the statute.” The court further determined that the adequacy of
the lights, sirens, or other markings on the police vehicle had to be evaluated given “the
purpose of the law.” Looking to that purpose, the court found that the officer’s vehicle
(equipped with wig wag headlights, red and blue flashing lights, a siren, and flashing
brake lights) was appropriately marked “because when the lights turn on, people have
the understanding they are to pull over, pull to the side of the road when they see law
enforcement lights turn on.” The court then explained that “when the lights turned on . .
. the defendant did not stop. He actually accelerated. When [the officer] turned on his
siren, the defendant accelerated more.” The court also concluded that the officer’s
prominently-displayed badge sufficed as a uniform. The court concluded, following a
bench trial, that Defendant Montano knew he was evading a police officer who had
signaled him to stop.

{85} Because the deputy’s vehicle’s lights and siren would give a reasonable person
notice that law enforcement was signaling him or her to stop, as would—to the extent it
was observed by Defendant Montano—the deputy’s prominently displayed badge, and
because Defendant Montano’s stepped acceleration suggests that he knew he was
being signaled to stop by law enforcement, I would find that his conviction was
supported by substantial evidence and should be affirmed.

A. Martinez

{86} The facts in Defendant Martinez’s case were described at the outset of this
dissent. Prior to his trial, Defendant Martinez filed a motion to dismiss, arguing that the
officer’s allegedly inconspicuous vehicle was not appropriately marked. After a hearing,
the district court determined that the aggravated fleeing statute requires the “pursuing
officer be in an appropriately marked law enforcement vehicle.” Thus, although the
district court had “no doubt about the veracity of [the officer’s] testimony that” Defendant
Martinez “recognized that he was being followed by a law enforcement vehicle even
before the Deputy activated his lights and siren,” the court was not persuaded that the
officer’s car was “appropriately marked,” for reasons similar to those articulated by the
majority, and dismissed the case.

{87} Because I would hold that an appropriately marked car is not a statutory element,
that the lights and sirens on Defendant Martinez’s car would notify a reasonable person
of the officer’s identity as law enforcement, and that evidence of Defendant Martinez’s
subjective knowledge should be weighed by the fact-finder, I would reverse the district
court’s order and remand Defendant Martinez’s case for further proceedings consistent
with this dissent.

V. CONCLUSION

{88} The interpretation set forth in this dissent is not an attempt to judicially amend a
legislative enactment. Rather, I believe it furthers the intent of our Legislature to
suppress a meaningful social evil. As Justice Holmes wisely observed, “the general
purpose [of legislation] is a more important aid to the meaning than any rule which
grammar or formal logic may lay down.” United States v. Whitridge, 197 U.S. 135, 143
(1905). Thus, “despite the ‘beguiling simplicity’ of parsing the words on the face of a
statute, we must take care to avoid adoption of a construction that would render the
statute’s application absurd or unreasonable or lead to injustice or contradiction.” State
v. Strauch, 2015-NMSC-009, ¶ 13, 345 P.3d 317 (citation omitted). There is no reason
to believe that our Legislature intended to provoke abstract debates about whether a
badge is a part of a uniform or is instead an item falling into some other category of
indicia of official status, nor whether a vehicle with affixed signaling equipment is
“appropriately marked.” Our Legislators are pragmatic people tasked with solving real-
world problems. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47
Columb. L. Rev. 527, 536 (1947) (“[Statutes are] written to guide the actions of
men. . . . If a statute is written for ordinary folk, it would be arbitrary not to assume that
Congress intended its words to be read with the minds of ordinary men.”). The standard
I propose in this dissent attempts to give effect to the Legislature’s real-world solution:
to criminalize high-speed chases initiated by persons who know they have been
signaled to stop by law enforcement.

JUDITH K. NAKAMURA, Chief Justice