 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Luna1/28/1980
itted for the time by some court who is actually, visibly and personally present at the time such alcoholic liquor is brought or received by him or served or delivered to him.
§ 6-10(b), Roswell City Code, supra. The violation of a municipal ordinance constitutes a petty misdemeanor because imprisonment may not exceed ninety days. § 3-17-1, N.M.S.A. 1978; § 30-1-6(c), N.M.S.A. 1978. See also Section 60-10-16(B), N.M.S.A. 1978 (Cum. Supp. 1979). A warrantless arrest of a person for violation of a misdemeanor is valid only if the offense occurred in the arresting officer's presence. Cave v. Cooley, 48 N.M. 478, 152 P.2d 886 (1944). Defendant contends that the officer had no reasonable grounds to believe that the act of allowing himself to be served occurred in his presence. He also argues that the officer had no grounds for believing that he was unaccompanied by his parents when he was served.
There is no testimony that the officer ever saw the defendant drinking or being served before the arrest. We therefore agree that the officer had no reasonable grounds to believe that the specific misdemeanor of allowing oneself to be served had been committed in his presence. The evidence does however support a reasonable determination by the officer that the defendant committed the misdemeanor of exhibition driving while in his presence. § 20-84.1, Roswell City Code, supra. The evidence also supports a reasonable determination by the officer that the defendant may have been driving while intoxicated, in violation of Section 66-8-102, N.M.S.A. 1978 (Cum. Supp. 1979). An arrest for such a violation is allowable pursuant to Section 66-8-122(B), N.M.S.A. 1978 (Cum. Supp. 1979). The grounds supporting these determinations were known to the officer at the time of the arrest.
We believe that where there are reasonable grounds supporting the warrantless arrest of a person for the commission of a misdemeanor, the arrest is not invalidated because the officer gave the wrong reasons for the arrest. State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969); see United States v. Richerson, 461 F.2d 935 (10th Cir. 1972), cert. denied, 409 U.S. 883, 93 S. Ct. 172, 34 L. Ed. 2d 139 reh. denied 409 U.S. 1119, 93 S. Ct. 916, 34 L. Ed. 2d 704 (1973). The proper misdemeanor charge must, however, be based upon facts known to the officer at the time of the arrest, and the offense must have been committed in his presence. Cave v. Cooley, Page 778} supra. If the proper charge is a felony, the arrest must be based upon probable cause. United States ex rel. La Belle v. La Vallee, 517 F.2d 750 (2d. Cir. 1975), cert. denied, 423 U.S. 1062, 96 S. Ct. 803, 46 L. Ed. 2d 655 (1976).
The arrest of the defendant in the present case was valid because the officer could have properly arrested him for driving while intoxicated.
After the stop and arrest, the defendant was subjected to a pat-down search. A marijuana pipe and a pocket knife were seized. This search and seizure is not challenged on appeal. While still on the scene, the arresting officer removed a whiskey bottle, two knit caps and some bullets from defendant's car. This is also not challenged.
Defendant was then taken to the police station where he was apparently recognized as a person who had been implicated in several burglaries in the area, and so was questioned about the Nelson murder. The police at that time seized the tennis shoes defendant was wearing, which appeared to match the footprint found next to the Taylor purse. It is claimed that the warrantless seizure of the shoes was unreasonable. We
Page 1 2 3 4 5 6 7 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|