Whenever any person is arrested for any violation of the Motor Vehicle Code [66-1-1
NMSA 1978] or other law relating to motor vehicles punishable as a misdemeanor, he
shall be immediately taken before an available magistrate who has jurisdiction of the
offense when the:
A. person requests immediate appearance;
B. person is charged with driving while under the influence of intoxicating liquor or
narcotic drugs;
C. person is charged with failure to stop in the event of an accident causing death,
personal injuries or damage to property;
D. person is charged with reckless driving;
E. arresting officer has good cause to believe the person arrested has committed a
felony;
F. person refuses to give his written promise to appear in court or acknowledge
receipt of a warning notice; or
G. person is charged with driving when his privilege to do so was suspended or
revoked pursuant to Section 66-8-111 NMSA 1978 or pursuant to a conviction for
driving while under the influence of intoxicating liquor or drugs.
History: 1941 Comp., § 68-2604, enacted by Laws 1953, ch. 139, § 185; 1953 Comp.,
§ 64-22-7; Laws 1968, ch. 62, § 160; 1977, ch. 376, § 2; recompiled as 1953 Comp., §
64-8-122, by Laws 1978, ch. 35, § 530; 1978, ch. 162, § 1; 1978, ch. 212, § 1; 1985, ch.
186, § 3.
ANNOTATIONS
Cross references. — For the definition of "nonresident", see 66-1-4.12 NMSA 1978.
For failure to stop for an accident, see 66-7-201 to 66-7-205 NMSA 1978.
For driving while under the influence of intoxicating liquor or narcotic drugs, see 66-8-
102 NMSA 1978.
For reckless driving, see 66-8-113 NMSA 1978.
No right to counsel when under custodial arrest following testing. — A person
issued a citation and placed under custodial arrest for driving while under the influence
of intoxicating liquor does not have a constitutional right to counsel immediately
following a breath alcohol test since it did not amount to initiation of judicial criminal
proceedings or prosecutorial commitment, nor was the period following administration of
the test a critical stage. State v. Sandoval, 1984-NMCA-053, 101 N.M. 399, 683 P.2d
516.
Word "immediate" does not mean "instantaneously", without any delay or any time
intervening, but means within a reasonable time, without unreasonable or unnecessary
delay, having due regard to the nature and circumstances of a particular case. 1960 Op.
Att'y Gen. No. 60-34.
Peace officers can make warrantless arrest when probable cause offense
committed in presence. — Peace officers in New Mexico can make arrests without
warrants for other than trivial misdemeanors when they have probable cause to believe
an offense is being committed in their presence. Such probable cause exists when there
is a reasonable foundation for the judgment of the officer that a misdemeanor is being
committed. 1961 Op. Att'y Gen. No. 61-117.
Warrantless arrest for commission of crime. — In situations involving violations of
the Motor Vehicle Code Sections (66-1-1 to 66-8-140 NMSA 1978) other than those
enumerated in this section, a police officer may make a physical arrest without a
warrant rather than issuing a uniform traffic citation so long as the arrest is made for the
commission of a felony or for the commission of a misdemeanor committed in his
presence. 1961 Op. Att'y Gen. No. 61-117.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of motorist stopped by police
officers to be informed at that time of his federal constitutional rights under Miranda v.
Arizona, 25 A.L.R.3d 1076.
61A C.J.S. Motor Vehicles § 593(1).
Notes of Decisions
Cited in
18
cases (
2 in the last 5 years), 1980–2023 · leading case:
State v. Bricker, 2006-NMCA-052, 134 P.3d 800.
State v. Bricker, 2006-NMCA-052, 134 P.3d 800.
· cites it 20× “At the suppression hearing, Defendant argued that under NMSA 1978, §§ 66-8-122 (1985) and 66-8-123 (1989), Officer Johnson was not authorized to arrest him and take him to the police station to be booked for driving on a suspended license, but rather required the officer to…”
State v. Ochoa, 2008-NMSC-023, 182 P.3d 130.
· cites it 3× “Where an officer stops an individual for a traffic violation, NMSA 1978, Section 66-8-123 (1989) governs the officer’s conduct: Except as provided in Section 66-8-122 NMSA 1978, unless a penalty assessment or warning notice is given, whenever a person is arrested for any…”
State v. Luna, 606 P.2d 183 (N.M. Ct. App. 1980).
· cites it 2× “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.”
Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001).
“” N.M. StatAnn. § 66-8-122(A) & (F). During the course of the arrest, Mr.”
Dixon v. State of New Mexico Taxation & Revenue Dep't, 2004-NMCA-044, 89 P.3d 680.
· cites it 2× “Specifically, MVD contends that district court review of revocations under the ICA is authorized by NMSA 1978, § 66-8-122(G) (1985)/and that district court review of denials of a limited license is authorized by Section 66-5-35(G).”
State v. Slayton, 2009-NMSC-054, 223 P.3d 337.
“{27} We recognize that NMSA 1978, Section 66-8-127 (1978) suggests that the Legislature may have intended to retain citizens’ common law ability to arrest for misdemeanors committed in their presence by providing that “the procedure prescribed [in Sections 66-8-122 through -125]…”
State v. Sandoval, 683 P.2d 516 (N.M. Ct. App. 1984).
· cites it 2× “In addition, NMSA 1978, § 66-8-122 (Cum.Supp.1983) requires that all individuals charged with DWI “be immediately taken before an available magistrate.”
United States v. Reyes-Vencomo, 866 F. Supp. 2d 1304 (D.N.M. 2012).
“1978, §§ 66-8-122 and 66-8-123 for the traffic infraction or for driving without a license.”
Mata Ex Rel. J.A.M v. City of Farmington, 791 F. Supp. 2d 1118 (D.N.M. 2011).
“1978, §§ 66-8-122, 66-7-373. Mata’s infraction is thus “among the least severe crimes contemplated by New Mexico law, and the amount of force [Rahn used] should have been reduced accordingly.”
State v. Duran (N.M. Ct. App. 2019).
· cites it 10× “person is charged with driving when his privilege to do so was suspended or revoked .”
Vigil v. New Mexico Motor Veh. Div., 2005-NMCA-057, 112 P.3d 299.
· cites it 2× “{7} New Mexico law provides that, with certain exceptions, mainly for more serious offenses, see NMSA 1978, § 66-8-122 (1985), persons arrested for motor vehicle violations who are not given warning notices are to be given the choice of appearing in court upon their promise to…”
N.M. Stat. § 66-8-122(1985): 1 case
N.M. Stat. § 66-8-122(A): 1 case
Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001).
“” N.M. StatAnn. § 66-8-122(A) & (F). During the course of the arrest, Mr.”
N.M. Stat. § 66-8-122(B): 1 case
State v. Luna, 606 P.2d 183 (N.M. Ct. App. 1980).
“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.”
N.M. Stat. § 66-8-122(F): 1 case
N.M. Stat. § 66-8-122(G): 7 cases
State v. Bricker, 2006-NMCA-052, 134 P.3d 800.
“At the suppression hearing, Defendant argued that under NMSA 1978, §§ 66-8-122 (1985) and 66-8-123 (1989), Officer Johnson was not authorized to arrest him and take him to the police station to be booked for driving on a suspended license, but rather required the officer to…”
Dixon v. State of New Mexico Taxation & Revenue Dep't, 2004-NMCA-044, 89 P.3d 680.
“Specifically, MVD contends that district court review of revocations under the ICA is authorized by NMSA 1978, § 66-8-122(G) (1985)/and that district court review of denials of a limited license is authorized by Section 66-5-35(G).”
State v. Duran (N.M. Ct. App. 2019).
“person is charged with driving when his privilege to do so was suspended or revoked .”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.