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Citizen's Arrest Could Have Legal Ramifications

By Alan M. Malott
For the Journal
          "Let him who sins when drunk be punished when sober." — Kendrick v. Hopkins (1580)
        Q: What legal ramifications might have arisen if the employee at that Santa Fe café had physically stopped the intoxicated customer from driving away before she drove the wrong way to a fatal I-25 collision ?
        A. We are all too familiar with this latest wrong-way fatal DWI incident, in which a responsible employee tried to intervene before a pair of customers, who were arguing about which was still sober enough to drive, became another of our painful lessons on the idiocy of mixing alcohol and automobiles. The question raises the ancient doctrine of citizen's arrest, which can have ramifications in both civil and criminal law today.
        The concept of citizen's arrest dates back to the Middle Ages. At Common Law, a private citizen had the power to arrest another for conduct which was either a breach of the peace, or a felony-level offense, if committed in the arrestor's presence. As long as the arrestor did not use excessive force he was immune from legal claims for damages from the incident such as assault, battery or false imprisonment. In more recent years, some states have enacted specific statutes outlining the parameters of a private citizen's right to interfere with the actions of another. New Mexico has no statute on citizen's arrest. Instead, our courts have continued to recognize the Common Law concept, ruling that a private citizen can detain a fellow private citizen when there is at least probable cause to believe that the fellow citizen has committed a felony-level crime or a breach of the peace in his presence. Please note that there are specific statutes for security guards which I am not addressing today.
        In New Mexico, so long as the arrestor had a reasonable subjective belief that such a crime had been committed, the privilege could apply even if the belief was factually incorrect or the arrestee was later found innocent of the charge. The arrestor must use no more than reasonably necessary force in effecting the detention, however, or he may be liable for either civil damages, criminal consequences or both. Conduct which violates our criminal statutes, such as assault, battery and false imprisonment, may also result in liability for civil damages under tort law or personal injury law. Crimes are prosecuted by the state while damages for torts are brought by the individual.
        The primary issue in detaining an apparently drunk individual may lie in the fact that DWI is not generally considered a breach of the peace despite the carnage it often causes. (Please, folks, I just discuss these ironies. I don't create them!)
        New Mexico does not allow a citizen's arrest for an ordinary misdemeanor. DWI rises to a felony-level crime only when the blood alcohol level is .16 or higher, or when one causes another great bodily harm while driving under the influence. Of course, by the time there's great bodily harm, it's too late. So, it appears the privilege to make a citizen's arrest for DWI might exist when the arrestee is actually in control of their vehicle — remember our discussions of the sleeping-while-intoxicated cases — and the circumstances provide a reasonable basis for you to believe they are at twice the legal limit or more at the time.
        Would the circumstances in Santa Fe have supported peremptory action by the employee without subjecting him, or the café, to liability?
        We know now the driver was way over the .16 BAC level, and had also ingested marijuana, but was the intoxication reasonably apparent from her demeanor? Would a prosecutor actually bring criminal charges against someone who stopped a drunk from driving? Would a jury convict on such a charge or award civil damages to a drunk who was stopped by a concerned citizen, absent evidence of excessive force? Shouldn't the New Mexico Legislature consider a specific citizen's arrest statute to clarify these questions? As usual, I have my opinion, but you can Judge for Yourself.
        Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, contact Judge Malott at P.O. Box 8305, Albuquerque, NM 87198 or e-mail to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.

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