Bottom Line
Road Law
Welcome to New Mexico

Jeff McConnell and James Mennella
Attorneys at Law

Ahh yes, the New Mexico Uniform Traffic Citation. Even Stalin himself would be proud of New Mexico for coming up with this one. What do you mean the officer didn't tell you that you had a constitutional right to contest the ticket? What do you mean the officer didn't advise that you could have a hearing in this matter? What do you mean the officer just told you to initial the "red zone" of your ticket? Isn't this the United States of America? Isn't New Mexico part of the United States of America? Doesn't New Mexico have to comply with the federal and even its own state constitution? What the hell is going on with New Mexico?

This edition of Road Law exposes the confusing, unjust and, in our humble opinion, unconstitutional processing of the "penalty assessment" portion of the New Mexico uniform traffic citation. Here's the truth.

Question: I got a ticket in New Mexico and couldn't find any court information at the bottom of it. How do I know when my court date is and what court to go to?

Answer: The reason there's no court information at the bottom of your New Mexico ticket is because you just pleaded guilty at the side of the road. Here's what's going on with New Mexico: The state's uniform traffic citation is only as good as the person writing it. Yes, on its face, the ticket form itself is constitutional. But, it's only constitutional if the officer tells you that you have a right to a trial or writes the court information down on the bottom of the ticket. (Note: We're not telling you to get into a constitutional law fight with a New Mexico state trooper on the side of the road.) As with any law enforcement official, unless specifically asked, the only thing you should say at the time of the traffic stop is "yes sir/ma'am or no sir/ma'am."

More than likely, you do not have a court date, but a due date with the Penalty Assessment Division in Santa Fe. The officer should have explained your options to you when he/she wrote the citation. If you look near the bottom of the citation, there is a section of red lettering explaining the penalty assessment option. Essentially by accepting penalty assessment, you have agreed to plead guilty to the charge.

Many drivers do not realize the severity of a specific infraction unless they contact an attorney

Question: If the penalty assessment box is checked, is there any way to get a court date?

Answer: There are two options that can be pursued in this situation. The first is to call the citing officer to see if he will reissue the citation and send it to the appropriate court for handling. Of course, this option will only be possible if he/she did not explain penalty assessment to you when the citation was issued. Our experience has been that most officers will not reissue the citation, but it is worth a try.

Second, an attorney can file a writ of mandamus (a judicial order commanding the performance of a particular act) with the Penalty Assessment Division in Santa Fe. This is not an inexpensive process, and requires extensive paperwork. The essential argument is that the driver was deprived of his/her constitutional right to a hearing and was not informed by the officer that he/she was giving up that right. Once the Penalty Assessment Division accepts the writ, the citation is to be sent back to the jurisdiction in which it would have gone to court in the beginning.

Question: What should I do if I receive a citation in New Mexico?

Answer: We suggest you make sure that the officer issues a court date. Simply ask the officer when it is. You can always plead guilty and send in your money to the court if there is no plea available or you do not want to proceed to trial. The important thing is not to foreclose your opportunity for relief or trial by agreeing to the penalty assessment unless you are absolutely sure you want to plead guilty to the charge.

However, you must beware. Many drivers do not realize the severity of a specific infraction unless they consult with an attorney who understands the Federal Motor Carrier Safety Regulations and the drivers' home state motor vehicle code.

We hope you can use the information in this column to help with every day, real life problems you face on the road. We invite you to send us any questions or comments you may have regarding transportation law to ROAD LAW, 1330 N. Classen Blvd., Suite 215, Oklahoma City, OK, 73106; fax to (405) 272-0558 or contact us through our web site at www.roadlaw.net.

Aug/Sept Digital Edition