STUDYSHEET ON BURDEN OF PROOF…

Remember, the “burden of proof” consists of two elements; (1)

“burden of persuasion” (in a sense relating to presumptions) and element (2)
“going forward with substantial evidence”.
This studysheet relates to the 2nd element, specifically within the
context of a criminal action. An argument that the State has “failed to carry
its burden of proof” is a fact-based evidentiary issue, usually brought to a
judge’s attention by a criminal defendant after the State has “rested”, i.e.,
presented its entire case to the judge (or jury). This issue is brought by a
defendant (or his attorney) based on a perceived lack of evidence relating to
one or more elements of the crime(s) he has been charged with committing.
For the purpose of this studysheet, “substantial evidence” is defined as
some type of documentary or testimonial material sufficient to establish an
element and which is admissible under the Rules of Evidence.
Remember what an element of a crime is? ______________________
________________________________________________________

What is a material fact? _____________________________________

________________________________________________________

Is there a difference between a material fact and an evidentiary fact?

________________________________________________________
________________________________________________________

Is there a difference in court rules relating to these two types of facts?

________________________________________________________
________________________________________________________

Consider the elements of some typical traffic offenses:

NMSA 1978 §66-7-315 No-passing zones. “*** B. Where signs or

markings are in place to define a no-passing zone as set forth in Subsection
A of this section, no driver shall at any time drive on the left side of the
roadway within the no-passing zone or on the left side of any pavement
striping designed to mark the no-passing zone throughout its length.***”

NMSA 1978 §66-7-316. One-way roadways and rotary traffic islands.

“*** B. Upon a roadway designated and signposted for one-way traffic,
a vehicle shall be driven only in the direction designated. ***”

1
 NMSA 1978 §66-7-351. Stopping, standing or parking prohibited in
specified places.
A. “No person shall stop, stand or park a vehicle, except when necessary
to avoid conflict with other traffic or in compliance with law or the
directions of a police officer or traffic-control device, in any of the following
places:
(1) on a sidewalk;
(2) in front of a public or private driveway;
(3) within an intersection;
(4) within fifteen feet of a fire hydrant;
(5) on a crosswalk;
(6) within twenty feet of a crosswalk at an intersection;
(7) within thirty feet upon the approach to any flashing beacon,
stop sign or traffic-control signal located at the side of a roadway;
(8) between a safety zone and the adjacent curb or within thirty
feet of points on the curb immediately opposite the end [ends] of a safety
zone, unless the traffic authority indicates a different length by signs or
markings;
(9) within fifty feet of the nearest rail of a railroad crossing;
(10) within twenty feet of the driveway entrance to any fire station
and on the side of a street opposite the entrance to any fire station within
seventy-five feet of said entrance, when properly signposted;
(11) alongside or opposite any street excavation or obstruction
when stopping, standing or parking would obstruct traffic;
(12) on the roadway side of any vehicle stopped or parked at the
edge or curb of a street;
(13) upon any bridge or other elevated structure upon a highway or
within a highway tunnel; or
(14) at any place where official signs prohibit stopping.***”

NMSA 1978 §66-8-102. Driving under the influence of intoxicating

liquor or drugs; aggravated driving under the influence of intoxicating liquor
or drugs; penalties.
“***B. It is unlawful for a person who is under the influence of any
drug to a degree that renders the person incapable of safely driving a
vehicle to drive a vehicle within this state.
C. It is unlawful for:
(1) a person to drive a vehicle in this state if the person has an
alcohol concentration of eight one hundredths or more in the person's blood
or breath within three hours of driving the vehicle and the alcohol

2
concentration results from alcohol consumed before or while driving the
vehicle; or
(2) a person to drive a commercial motor vehicle in this state if the
person has an alcohol concentration of four one hundredths or more in the
person's blood or breath within three hours of driving the commercial motor
vehicle and the alcohol concentration results from alcohol consumed before
or while driving the vehicle.
D. Aggravated driving under the influence of intoxicating liquor or
drugs consists of:
(1) driving a vehicle in this state with an alcohol concentration of
sixteen one hundredths or more in the driver's blood or breath within three
hours of driving the vehicle and the alcohol concentration results from
alcohol consumed before or while driving the vehicle;
(2) causing bodily injury to a human being as a result of the
unlawful operation of a motor vehicle while driving under the influence of
intoxicating liquor or drugs; or
(3) refusing to submit to chemical testing, as provided for in the
Implied Consent Act, and in the judgment of the court, based upon evidence
of intoxication presented to the court, the driver was under the influence of
intoxicating liquor or drugs.***”

What are the elements of NMSA 1978 §66-7-315? _______________

_____________________________________________________________
What are the elements of NMSA 1978 §66-7-316? _______________
_____________________________________________________________
What are the elements of NMSA 1978 §66-7-351? _______________
_____________________________________________________________

What are the elements of NMSA 1978 §66-8-102? _______________

________________________________________________________

How do you determine what the specific elements are when a charged
crime contains multiple subsections? _______________________________
_____________________________________________________________

When, where and how do you raise a “failure to carry the burden of
proof” legal argument and what is this argument called?_______________
_____________________________________________________________
_____________________________________________________________