The small things, like with ordinary, everyday traffic stops...which are actually arrests, too...the laws operable just don't get no attention. People would rather sign off on it, pay a little fine money and walk away, without the additional hassle and expense of court stuff. Well, there are exceptions...like if you have a lot of unpaid tickets, warrants, or have been such a bad driver that the ol' license may be yanked. That can mean hiring lawyers, which is never cheap...often not even "reasonable". In any case, the laws impacting us drivers almost never get taken into forums where constitutionality may be examined. I'd like to do that, now, and show you how one unconstitutional law survives and thrives in the darkness of inattention.
In most States (I don't know about all of them), when you put your signature on a "Traffic Citation", it only means that you acknowledge receipt of this Official Document, agreeing to look over what options are offered, and take responsibility in one of the ways provided. Maybe you'll appear for a hearing in traffic court; maybe you'll hire a lawyer to do that for you; or maybe the time will slip by, and you'll send in the "Penalty Assessment" or "fine" amount. Not in New Mexico. In that state, the cop, guy with a gun who has you there, under arrest, insists that you make a big, important decision, right on the spot...and this is where the unconstitutional part comes in. You have to make your decision while in ignorance...not knowing all your rights, not knowing all the law, having no lawyer present, and not even knowing for sure what some of the stuff the armed fellow has written, on that Citation you'll have to sign, really means. Sure, you have a choice, but you ain't equipped to make that choice, right there, under those conditions. Here's what the "Choices" are:
We know that both "Traffic Arraignment" and "Court Appearance" mean you'll be having some time to decide about guilt or innocence matters, or prepare your case, and you'll be going to a place where Constitutional Rights are likely to be looked after, lawyers, an audience, a judge, are all there....but you'll have to drive 1700 miles and stay overnight. An honest Texan, not wanting to lie about coming back to New Mexico will probably not pick the "Court Appearance" option. Selecting the top option, "Penalty Assessment", however, means that the trial is over, held right there on the roadside...not before a jury of peers, not by "due process", but in front of an armed man, and you have been compelled by ignorance (and other circumstances) to testify against yourself. I know, that sounds simplistic. Sounds like you made a free choice, don't it? It can be argued that in the old days a fellow wanted to confess, enter a plea of guilty, when actually what he wanted was for cops to quit beating him with the rubber hose, or to go home, like they promised would be the case.
The "old days" is why the Supreme Court of the United States came up with the Miranda Ruling. That ruling says you have the right to remain silent, that anything you say (or write) can be used against you in a court of law. Says you have the right to have an attorney present whenever you might otherwise do or says or write something which risks your unknowingly testifying against yourself. And, if you can't afford a lawyer, they gotta provide one for you. After a cop tells you all this stuff, then he even has to ask you if you understand it. None of that happens with an arrest for a penalty assessment misdemeanor. (See this Miranda in plain language.)(See also brief rulings on Miranda.)
Here's what New Mexico's law says about it. (66-8-77) "(A) Unless a warning notice is given, at the time of making an arrest for any penalty assessment misdemeanor the arresting officer shall offer the alleged violator the option of accepting a penalty assessment. The violator's signature on the penalty assessment notice constitutes an acknowledgement of guilt of the offence stated in the notice." Notice that "alleged" is missing from the second sentence. Notice that "acknowledgement of guilt" means the same thing as testifying against one's self, on the roadside. And, in 66-8-123 "(D) In order to secure his release, the arrested person must give his written promise to appear in court or to pay the penalty assessment prescribed or acknowledge receipt of a warning notice."
The rub is that what I just told you about ain't something you know, can't be expected to know, while nervously sitting on a lonely roadside, out of state, under arrest by a man with a gun. Short version is that on that roadside, the options offered are not conjoined with the tools and knowledge to make a free choice. No choice from options ought be manditory by laws of a state, if any of the options means you can convict yourself through ignorance...thus supplying testimonial evidence pre-Miranda.
In particular, a citation can (often does) contain description of an "offence stated in the notice" that did not happen. That's right...did not happen. Like, these things, pictured, report details of the conditions under which the event supposedly happened. Know what it all means:
And this information, below, which looks like it makes sense, actually refers to an imaginary "offence stated in the notice", and it didn't happen, the location of it being about 65 miles distant from where the notice was written up:
Sitting beside the road, how you gonna know all that stuff?
In the final analysis, a law, holding power, placing power in the hands of those using law, must serve the needs of society for furtherance of order, justice and security, in it's application. As well, proper application of that law must serve society in some measure exceeding the harm derived. We see in this unconstitutional New Mexico law, inducing officers to require binding choices be made at roadside, by citizens in legal ignorance, without regard of the Miranda Rule, yet bringing to service no benefit to order, justice or security of society. The law invites and begets abuse of citizens, delivers no demonstrable benefit.