In order to so regulate drinking and driving on private property, the City would have to gain written consent from the property owner. In the alternative, the driver should be charged under the New Mexico DWI/DUI Statute which is customarily the case.
The driver cannot be charged for DWI/DUI on private property under the City Code.
The facts of Rogers are remarkable. The defendant was in a parking lot of a convenience store where she had purchased cigarettes. The police officer had followed her into the parking lot on the suspicion that she had been drinking and driving.
As the defendant was preparing to drive away, the officer stopped her while she was still in the parking lot. The officer administered field sobriety tests which Rogers failed. Consequently, she was arrested and charged with DWI/DUI.
The Municipal Court dismissed the DWI/DUI Complaint. The city appealed to District Court which ruled that pursuant to City of Rio Rancho v. Young, and Section NMSA §3-49-1(O), the City could not enforce its traffic code on private property absent a showing of express written consent by the owner of the property.
The case wound its way up to the Supreme Court through the Court of Appeals which upheld the District Court ruling.
The New Mexico Supreme Court agreed with the lower court rulings again citing Young and NMSA §3-49-1(O). The Court made the distinction between violations of state statutes and municipal statutes.
Las Cruces had failed to charge the defendant under the State statute NMSA 66-8-102. Instead, the defendant was charged under the city ordinance which the Court agreed could not be done without the written consent of the property owner.