284 P.3d 418
N.M. Ct. App.2012Background
- Orquiz was convicted of DWI and child abuse by endangerment after driving with a nine-year-old child passenger and crashing when he failed to stop at a stop sign; airbags deployed and the child was injured (busted lip, scratches).
- An officer smelled alcohol on Orquiz, who admitted drinking a six-pack from noon to 3 p.m. and later performed field sobriety tests consistent with impairment.
- Orquiz’s BAC was between .16 and .17, well above legal limits, and he was arrested and submitted to a chemical breath test.
- The central issue was whether the child abuse by endangerment conviction could stand solely on the moving DWI, even if there were no other indicia of unsafe driving.
- The court acknowledged a clerical error in the judgment and remanded to correct the specific DWI conviction reflected in the judgment.
- The court ultimately affirmed the child abuse by endangerment conviction based on the moving DWI with a child in the car, and remanded for judgment correction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether moving DWI supports child endangerment | State: moving DWI provides basis for endangerment | Orquiz: no endangerment without plus factors | Yes; moving DWI alone sustains endangerment conviction |
| Clerical error in judgment and remand | State: judgment must reflect correct DWI | Orquiz: no additional argument on this point | Remand for correction of the DWI specification in judgment |
Key Cases Cited
- State v. Chavez, 146 N.M. 434 (2009-NMSC-035) (endorses endangerment when driving drunk with a child in car; no required plus factor)
- State v. Etsitty, 270 P.3d 1277; 2012-NMCA-012 (2012-NMCA-012) (driving while intoxicated on non-moving vehicle does not support endangerment absent moving DUI evidence; moving driving supports)
- State v. Cotton, 150 N.M. 583, 263 P.3d 925 (2011-NMCA-096) (insufficient evidence where DWI premised on non-moving or future danger; endangerment requires actual moving danger)
- State v. Santillanes, 130 N.M. 464, 27 P.3d 456 (2001-NMSC-018) (illustrates DWI and endangerment with serious consequences)
- State v. Gurule, 149 N.M. 599, 252 P.3d 823 (2011-NMCA-042) (DWI is a strict liability crime; public safety interest in determent of DWI)
- State v. Graham, 137 N.M. 197, 109 P.3d 285 (2005-NMSC-004) (legislative extension of endangerment to protect children)