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State v. Guilez6/15/2000
Defendant Concepcion Guilez was charged with and convicted of abandonment or abuse of a child, see NMSA 1978, § 30-6-1(C)(1) (1989), and reckless driving, see NMSA 1978, § 66-8-113(A) (1987). Defendant was also charged with operating a motor vehicle while under the influence of intoxicating liquor or drug, see NMSA 1978, § 66-8-102 (1993), to which he pled guilty. The State now appeals from an opinion of the New Mexico Court of Appeals, State v. Guilez, 1999-NMCA-127, 128 N.M. 93, 990 P.2d 206, in which the Court reversed the judgment and sentence entered by the district court on the jury's verdicts, and remanded with an order to vacate Defendant's conviction for child abuse and enter an amended judgment and sentence. The Court of Appeals held that under the general/specific statute rule the reckless driving statute was the more specific offense and preempted the child abuse statute when the conduct underlying both convictions was unitary. See Guilez, 1999-NMCA-127, 12. On appeal, the State contends the Court of Appeals misapplied the general/specific statute rule. We hold the general/specific statute rule is not applicable on the facts of this case. We therefore reverse the Court of Appeals and affirm the judgment and sentence entered by the district court.
I.
At approximately 10:00 p.m. on April 19, 1997, Officer Richard D. Newman was patrolling a highly traveled portion of Highway 70 when he heard a vehicle on the opposite side of the highway heading towards Tularosa. As the vehicle drew closer, he observed it was a truck, traveling in the inside lane, without operating headlights or taillights. It appeared to be traveling at the posted speed limit or faster; Newman estimated, based on his experience, that the truck was traveling between sixty-five and seventy miles per hour. Newman immediately crossed the median in pursuit of the truck; it took him a few seconds to turn around so that he was driving in the same direction as the truck was traveling. In attempting to catch up with the truck, Newman testified he drove between eighty and ninety miles per hour. Newman saw the truck brake slightly in order to turn onto Old Mescalero Road. Shortly thereafter, just when Newman was beginning to catch up with the truck, the driver made a right turn and collided with a fence. Newman turned on his spotlight and ordered Defendant, who was driving, to exit the truck. Newman noticed Defendant was wet, smelled of alcohol, and had bloodshot eyes.
Defendant told Newman he knew the lights did not work, but that he had been swimming when it got dark so he had decided to try to make it home without lights. He further admitted to drinking one beer. Newman administered three field sobriety tests; Defendant failed each one. Defendant had slurred speech and balance problems. Newman placed Defendant under arrest. Newman then approached the truck, at which point he noticed that of the two children in the cab, a three-year-old boy and a six-year-old girl, only the girl was wearing a seat belt.
Defendant and his girlfriend, Hope Chavez, gave the following account. Defendant had been having problems with the headlights but had fixed them earlier that day. Defendant, Hope, and her two children attended a picnic on the river. Hope drank one beer and Defendant drank between two and three beers. The group left the picnic sometime between 9:00 and 9:30 p.m. The children were damp from swimming. Defendant acknowledged that the three-year-old boy was not in a child safety seat, which Defendant knew was required by law. He testified, however, that he had buckled both children into one seatbelt on the passenger side of the cab.
At some point on the way home, the truck
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