Attorney General Opinions and Advisory Letters

Opinion No. 81-18

August 14, 1981

OPINION OF: Jeff Bingaman, Attorney General

BY: Jill Z. Cooper, Deputy Attorney General

TO: Honorable Michael F. McCormick, District Attorney, Fifth Judicial District, P.O. Box 1488, Carlsbad, New Mexico 88220

CRIMINAL OFFENSES; MOTOR VEHICLES; COURTS

Synopsis: If an offense defined as a "penalty assessment misdemeanor" is committed and the offender is not arrested by a police officer, then a person other than a law enforcement officer may file a criminal complaint in accordance with the procedure established for all misdemeanors.

QUESTIONS

May a private citizen who is an eye witness to an act which is a violation of one of the penalty assessment misdemeanors listed in Section 66-8-116 NMSA 1978, file a complaint initiating a criminal action in Magistrate Court?

CONCLUSIONS

Yes.

ANALYSIS

A violation of any of the acts described in the statutes listed in Section 66-8-116 NMSA 1978 as "penalty assessment misdemeanors" would be, notwithstanding the provisions of Section 66-8-118, a misdemeanor. The list includes statutes from the Motor Vehicle Code and statutes from the Criminal Code. Section 66-8-7 NMSA 1978 states that the violation of any provision of the Motor Vehicle Code shall be a misdemeanor unless such violation is otherwise defined as a felony.

OPINION

The magistrate court has jurisdiction "in all cases of misdemeanors," Section 35-3-4 NMSA 1978. Magistrate jurisdiction would therefore include all misdemeanors arising under the Motor Vehicle Code. Compare, Opinion of the Attorney General No. 69-53, dated June 5, 1969. A criminal action commences with the filing of a complaint in a court of proper jurisdiction by a law enforcement officer or any other person. Section 31-1-4 NMSA 1978; Rule 4 of the Rules of Criminal Procedure for the Magistrate Courts.

If a person alleged to have committed an offense defined as a penalty assessment misdemeanor is stopped by a police officer, then, pursuant to Section 66-8-117 NMSA 1978, the alleged offender shall be given a warning notice or the opportunity of accepting a penalty assessment notice. See also, Section 66-8-123 NMSA 1978. When the alleged offender signs the penalty assessment notice, he acknowledges his guilt of the offense stated in the notice. Section 66-8-117(A). Having thus "plead" guilty, the defendant has been "convicted" of the offense, State v. Larranaga, 77 N.M. 528, 424 P.2d 804 (1967), and cannot again be convicted for the same offense.

If on the other hand, an offense defined as a "penalty assessment misdemeanor" is committed and the offender is not arrested by a {*248} police officer, then a person other than a law enforcement officer may file a criminal complaint in accordance with the procedure established for all misdemeanors. That is, the complaint must conform to the requirements of Rule 4, see e.g., State v. Nixon, 89 N.M. 129, 548 P.2d 91 (1976), docketing fees must be paid in accordance with Section 35-6-3 NMSA 1978; and the prosecution of such a complaint would be undertaken at the discretion of the district attorney.

However, should a person be convicted of a penalty assessment misdemeanor on complaint of a person other than a law enforcement officer, he would still be liable only for the penalty assessment established by Section 66-8-116. Section 66-8-7 NMSA 1978 defines the maximum penalty which may be imposed for convictions of misdemeanors under the Motor Vehicle Code unless another penalty is specified. Section 66-8-116(C) specifies that if an alleged violator declines to accept a notice of penalty assessment, "no fine imposed upon later conviction shall exceed the penalty assessment established for the particular penalty assessment misdemeanor."

ATTORNEY GENERAL

Jeff Bingaman, Attorney General