DWI dumped on free speech claim

Rio Rancho woman now suing city, says flashing high beams is protected under First Amendment

Mariah Martinez

RIO RANCHO, N.M. (KRQE) – Mariah Martinez thought for sure the car headed in the opposite direction had its high beams on.

It was just before 10:00 p.m. on Jan. 25, and there’s only one street light along Tulip Road SE near Lisbon Avenue at the very edge of developed Rio Rancho. Martinez was driving southbound; it was good and dark.

She decided to offer a courtesy to a fellow driver — the kind motorists all over the country extend to one another every day.

“You can see oncoming traffic instantly as soon as they’re in eyesight,” Martinez told KRQE News 13 in a recent interview. “It looked like their brights were on, so I honked once and then flashed my brights once. And I saw him turn around, and then he pulled me over. And that’s when everything started.”

Everything, in this case, included an aggravated DWI charge, a night in the Sandoval County Detention Center and a suspended drivers license for Martinez, who was 22 at the time.

Everything also included, before any of that happened, a violation of Martinez’s First Amendment rights to free speech, according to a lawsuit she filed this week in U.S. District Court against the City of Rio Rancho, its police department and Sgt. Brian Thacker, who put her in handcuffs that night back in January.

A Growing Corner of Law

Across the country, a headlight-flashing case occasionally finds its way into the headlines.

In May, Missouri resident Michael Elli won a permanent injunction against the Ellisville Police Department for enforcing a law similar to Rio Rancho’s. Police ticketed Elli for flashing his headlights at oncoming traffic after he drove past a speed trap. Like Mariah Martinez, Elli’s charge in municipal court was dismissed. And like Martinez, Elli chose to file a civil rights complaint in federal court. 

In 2011 in Seminole County, Florida – near Orlando – Ryan Kintner was ticketed after warning drivers in his neighborhood that a deputy was lurking nearby in a speed trap. According to the Orlando Sentinel, Kintner was at his home when he saw the deputy park and prepare to use his radar gun to nab speeders. Kintner got into his car, drove it down the street a short distance and parked. He began flashing his headlights at drivers headed into the speed trap. He was ticketed a short time later, but got his case tossed out. He also sued the sheriff’s department.

Earlier this year, a New Jersey assemblyman introduced a law to protect drivers from prosecution if they flash their headlights to warn other drivers. In 1999, the New Jersey Court of Appeals threw out a woman’s conviction for driving with a suspended license because police misconstrued a state law regarding the proper use of headlights.

Jeff Proctor and Matt Grubs

That little flick of the stalk sticking out from the steering column in Martinez’s Infiniti SUV — and a quick honk of the horn — were her way of talking to another driver.

“Any time you convey a message and, objectively, someone else can understand what you’re trying to say, it’s protected speech,” Colin Hunter, Martinez’s attorney, said in an interview. It is not, Hunter contends, grounds for a police officer to make a traffic stop.

Hunter used that argument to get evidence of Martinez’s poor performance on standard field sobriety tests and a blood alcohol concentration of 0.23 percent, nearly three times the state’s presumed level of intoxication, suppressed in Rio Rancho Municipal Court. That led to an outright dismissal of her DWI and traffic citations.

Now, Martinez and Hunter are using the free speech argument in federal court to seek an injunction against the “city’s policy of having police officers pull over, detain, cite and prosecute individuals who communicate with other motorists by flashing their lights.” They want the practice declared unconstitutional, and the lawsuit seeks attorney’s fees for Hunter and unspecified damages for Martinez for alleged First and Fourth Amendment violations.

Rio Rancho City Attorney Jennifer Vega-Brown said the city will defend the case in court. She declined to say anything further, citing the city’s policy of not commenting on pending litigation.

Several recent cases — brought in state and federal courts in Florida, Missouri, Tennessee, Oregon and New Jersey — may provide some legal bedrock for Martinez’s case. In those cases, courts have ruled that free speech includes flashing headlights to warn drivers of speed traps or honking a horn outside an acquaintance’s home for the purposes of annoyance.

“Whether you’re warning somebody about a DWI checkpoint, about a speed trap or whether you’re honking in front of someone else’s house to bother them, it’s all protected speech,” Hunter said.

In New Mexico, it’s a novel area of law. Martinez’s case could spark other appeals of similar laws in cities around the state, and it could have national ramifications.

Flashing high beams to communicate with other drivers “is pervasive throughout the country,” said Dave Sidhu, a constitutional law professor at the University of New Mexico School of Law. “Jurisdictions are struggling with this in terms of whether it’s speech protected under the First Amendment. If there’s a critical mass of these cases, that could provide more clarity in this area of the law. Right now, it’s rather piecemeal and ad hoc.”

Moreover, Sidhu said, there are only certain, narrow exemptions to the types of speech protected under the First Amendment. The classic example is shouting “fire!” in a movie theater.

“There’s an open question as to whether there should be an additional category carved out,” he said, “where people are engaging in avoidance of law enforcement. That’s not clearly defined yet … The courts could rule that (flashing high beams to communicate) is protected speech, but that it has no social value and doesn’t get the same protections under the First Amendment. While it’s a discreet issue in this case, this is a very interesting issue that could have broad implications.”

A Hint at Defense

Hunter filed his motion to suppress evidence and dismiss the criminal case against Martinez back in April. After that, there were four different court dates set for a judge to hear the motion. The city hadn’t filed a response in time for the first three. Just after 5 p.m. on Sept. 8, the day before the fourth court date, the city filed a response.

The judge decided to not consider the city’s response, but News 13 obtained a copy. It provides some insight into how the Rio Rancho City Attorney’s Office may try to defend the civil rights lawsuit in federal court.

In its response, the city contends that Thacker’s stop of Martinez was legal because she violated two city ordinances. The first prohibits drivers from using their “horns or lights in such a manner as to distract other motorists or … disturb the peace.”

Martinez “was not fully focusing on operating her motor vehicle safely and was engaging in activity which distracted Sergeant Thacker,” city attorneys wrote.

The second ordinance makes it illegal to drive with a broken taillight lens. According to Thacker’s police report and the city’s response in court, the sergeant noticed through his side-view mirror that Martinez’s tail lamp lens appeared to be broken. That was part of why he pulled her over.

On that point, the city may run into a road block in court. Hunter recorded a telephone interview with Thacker and an attorney for the city in which he asked, regarding Martinez’s flashing lights: “Is that what you made the stop on alone?”

Thacker replied: “Yeah, the high-beams violation.”

Listen to Hunter’s interview with Sgt. Thacker:

Thacker, as it turns out, didn’t have his high beams on; his department-issued, late-model Dodge Charger just happens to have particularly bright lights that drivers often mistake for high beams.

The city’s argument in the criminal case was that Martinez was “not engaged in protected free speech (when) flashing her headlights and honking her vehicle horn.”

In response to the alleged violations of the Fourth Amendment, which protects Americans against unreasonable search and seizure, city attorneys wrote in their response that Thacker smelled alcohol on Martinez’s breath. That gave the sergeant enough probable cause to conduct the DWI investigation that led to her arrest.

Martinez’s “subjective beliefs as to whether her actions were protected speech are not relevant in determining whether Sergeant Thacker had probable cause to arrest her,” city attorneys wrote.

In her interview with News 13, Martinez said she was driving within the 25 mph speed limit on Tulip Road at the time Thacker stopped her. She wasn’t swerving or driving erratically. She said she knew immediately why she saw police lights in her rearview mirror.

“I saw him turn around and pull me over, and I knew exactly why I was pulled over,” Martinez said. “I had just flashed my lights. He didn’t even have anything to actually specifically cite me for. He had to put it under something else.”

She insists that, despite the high breath-alcohol score she later registered, she wasn’t too drunk to drive that January night.

“I was still obviously in good enough condition to try to look out for a fellow driver,” she said, adding that she doesn’t feel lucky for having beaten the DWI rap. “We have amendments for a reason.”

In the lawsuit, Hunter makes his case that Rio Rancho has a “widespread practice” of citing drivers for flashing their high beams by noting that Martinez received a ticket “for an alleged improper use of her headlamps” on Jan. 18. That was just a week prior to the night Thacker arrested her, and it ended with a dismissal.

The lawsuit also alleges that “city officials, including Sgt. Thacker, are aware of the widespread practice of citing and prosecuting individuals for violation of an ordinance that no reasonable officer would believe the individuals had violated.”

‘A Broader Issue of Law’

Hunter, Martinez’s attorney, had an answer at the ready for those who may feel that all he did was get a suspected drunk driver off through creative legal maneuvers.

“You know, the Constitution’s not a technicality,” he said.

Sidhu, the UNM law professor, said drivers flashing their lights to communicate falls within protected speech under the First Amendment, according to his analysis.

“That may be surprising to some,” he said. “Some might say that (flashing high beams to communicate) is not a work of art; it’s not artistic in nature. My take is that it is protected speech. But that doesn’t end the inquiry.”

Given that Martinez’s civil rights lawsuit seeks an injunction against the city of Rio Rancho to keep police there from stopping drivers for flashing their high beams, the case is likely to come down to whether the city can defend the statute as one that serves a “substantial and important” public safety purpose — and that it isn’t aimed at chilling free speech.

“The it’s a question of fit,” he said. “Does the statute fit that purpose?”

If Martinez’s lawsuit winds up going to trial, and she wins, the city could appeal to the Tenth Circuit Court of Appeals. And if another, similar case winds its way through the system in a different jurisdiction, there could be a completely different ruling.

That could trigger a review by the U.S. Supreme Court, Sidhu said.

“The potential for this influence a broader issue of law is definitely there,” he said.

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