44th legislature - STATE OF NEW MEXICO - second session, 2000

RELATING TO DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; ELIMINATING THE AVAILABILITY OF A LIMITED DRIVER'S LICENSE FOR CERTAIN DWI OFFENDERS; INCREASING THE MINIMUM MANDATORY SENTENCE FOR A PERSON CONVICTED A SECOND TIME FOR DWI; PROVIDING FOR THE IMMOBILIZATION OR IMPOUNDMENT OF VEHICLES OR THE INSTALLATION OF IGNITION INTERLOCK DEVICES ON VEHICLES; AMENDING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 66-5-5 NMSA 1978 (being Laws 1978, Chapter 35, Section 227, as amended) is amended to read:

"66-5-5. PERSONS NOT TO BE LICENSED.--The [division] department shall not issue a driver's license under the Motor Vehicle Code to any person:

A. who is under the age of eighteen years, except the [division] department may, in its discretion, issue:

(1) an instruction permit to a person fifteen years of age or over who is enrolled in and attending or has completed a driver education course that includes a DWI education and prevention component approved by the bureau or offered by a public school;

(2) a provisional license to any person fifteen years and six months of age or older:

(a) who has completed a driver education course approved by the bureau or offered by a public school that includes a DWI education and prevention component and has had an instruction permit for at least six months; and

(b) who has successfully completed a practice driving component;

(3) a driver's license to any person sixteen years and six months of age or older:

(a) who has had a provisional license for the twelve-month period immediately preceding the date of the application for the driver's license;

(b) who has complied with restrictions on that license;

(c) who has not been convicted of a traffic violation that was committed during the ninety days prior to applying for a driver's license; and

(d) who has not been adjudicated for an offense involving the use of alcohol or drugs during that period and who has no pending adjudications alleging an offense involving the use of alcohol or drugs at the time of his application; and

(4) to any person thirteen years of age or older who passes an examination prescribed by the [division] department, a license restricted to the operation of a motorcycle, provided:

(a) the motor is not in excess of one hundred cubic centimeters displacement;

(b) no holder of an initial license may carry any other passenger while driving a motorcycle; and

(c) the [director] secretary approves and certifies motorcycles as not in excess of one hundred cubic centimeters displacement and by [regulation] rule provides for a method of identification of such motorcycles by all law enforcement officers;

B. whose license or driving privilege has been suspended or denied, during the period of suspension or denial, or to any person whose license has been revoked, except as provided in Section 66-5-32 NMSA 1978;

C. who is an habitual drunkard, an habitual user of narcotic drugs or an habitual user of any drug to a degree [which] that renders him incapable of safely driving a motor vehicle;

D. who, within any ten-year period, is three times convicted of driving a motor vehicle while under the influence of intoxicating liquor or narcotic drug regardless of whether the convictions are under the laws or ordinances of this state or any municipality or county of this state or under the laws or ordinances of any other state, the District of Columbia or any governmental subdivision thereof. Ten years after being so convicted for the third time, the person may apply to any district court of this state for restoration of the license, and the court, upon good cause being shown, may order restoration of the license applied for; provided that the person has not been subsequently convicted of driving a motor vehicle while under the influence of intoxicating liquor or drug in the ten-year period prior to his request for restoration of his license. Upon issuance of the order of restoration, a certified copy shall immediately be forwarded to the [division] department, and if the person is otherwise qualified for the license applied for, the three previous convictions shall not prohibit issuance of the license applied for. Should the person be subsequently once convicted of driving a motor vehicle while under the influence of intoxicating liquor or drug, the [division] department shall revoke his license for five years, after which time he may apply for restoration of his license as provided in this subsection;

E. who has previously been afflicted with or who is suffering from any mental disability or disease [which] that would render him unable to drive a motor vehicle with safety upon the highways and who has not, at the time of application, been restored to health;

F. who is required by the Motor Vehicle Code to take an examination, unless he has successfully passed the examination;

G. who is required under the laws of this state to deposit proof of financial responsibility and who has not deposited the proof;

H. when the [director] secretary has good cause to believe that the operation of a motor vehicle on the highways by the person would be inimical to public safety or welfare; [or]

I. as a motorcycle driver who is less than eighteen years of age and who has not presented a certificate or other evidence of having successfully completed a motorcycle driver education program licensed or offered in conformance with [regulations] rules of the bureau; or

J. who is a subsequent offender, unless the offender provides the department with proof that each motor vehicle owned by the offender or available for the offender's personal use is equipped with an ignition interlock device installed and operated pursuant to rules adopted by the bureau. An ignition interlock device shall be installed on the appropriate motor vehicles at the offender's expense."

Section 2. Section 66-5-35 NMSA 1978 (being Laws 1978, Chapter 35, Section 257, as amended) is amended to read:

"66-5-35. LIMITED DRIVING PRIVILEGE UPON SUSPENSION OR REVOCATION--HEARING--REVIEW.--

A. Upon suspension or revocation of a person's driver's license following conviction or adjudication as a delinquent under any law, ordinance or [regulation] rule relating to motor vehicles, a person may apply to the department for a license or permit to drive, limited to use allowing him to engage in gainful employment or to attend school, except that no person shall be eligible to apply:

(1) for a limited commercial driver's license;

(2) for a limited license when the person's driver's license was revoked pursuant to the provisions of the Implied Consent Act, except as provided in Subsection B of this section;

(3) for a limited license when the person's license was revoked pursuant to an offense for which the person is a subsequent offender as defined in the Motor Vehicle Code [except that a person who is convicted a second or third time for driving under the influence of intoxicating liquor or drugs, may apply for and shall receive a limited license if he complies with the requirements set forth in Subsections C and D of this section]; or

(4) for a limited license when the person's driver's license was revoked pursuant to a conviction for committing homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978.

B. A person whose driver's license is revoked for the first time pursuant to the provisions of Paragraph (1) or (2) of Subsection C of Section 66-8-111 NMSA 1978 [or for the second or third time pursuant to the provisions of Paragraph (3) Subsection C of Section 66-8-111 NMSA 1978] may apply for and shall receive a limited license or permit thirty days after suspension or revocation of his license if the person pays every fee, meets the criteria for limited driving privileges established in rules by the department and provides the department with documentation of the following:

(1) that the person is enrolled in a DWI school approved by the traffic safety bureau and an approved alcohol screening program;

(2) proof of financial responsibility pursuant to the provisions of the Mandatory Financial Responsibility Act;

[(3) if the person's driver's license is revoked pursuant to the provisions of Paragraph (3) of Subsection C of Section 66-8-111 NMSA 1978, the person shall provide proof that each motor vehicle to be operated by the person, if he receives a limited license, shall be equipped with an ignition interlock device installed and operated pursuant to rules adopted by the traffic safety bureau] and either

(3) proof of gainful employment or gainful self-employment and that the person needs a limited license to travel to and from his place of employment; or

(4) proof that the person is enrolled in school and needs a limited license to travel to and from school.

[C. A person who is convicted a second or third time for driving under the influence of intoxicating liquor or

drugs may apply for and shall receive a limited license thirty days after suspension or revocation of his license if the person pays every fee, meets the criteria for limited driving privileges established in rule by the department and provides the department with documented proof:

(1) of enrollment in a DWI school approved by the traffic safety bureau and an approved alcohol screening program;

(2) of financial responsibility pursuant to the provisions of the Mandatory Financial Responsibility Act; and either

(3) of gainful employment or gainful self-employment and that the person needs a limited license to travel to and from his place of employment; or

(4) of enrollment in school and that the person needs a limited license to travel to and from school.

D. In addition to the requirements set forth in Subsection C of this section, a person who is convicted a second or third time for driving under the influence of intoxicating liquor or drugs shall provide the department with his judgment and sentence. The judgment and sentence shall attest that the person will be on probation for the entire period that a limited license will be in effect and that, as a condition of probation, the person shall provide proof that each motor vehicle to be operated by the person is equipped with an ignition interlock device installed and operated pursuant to rules adopted by the traffic safety bureau. The ignition interlock device shall be installed on the appropriate motor vehicle at the person's expense.

E.] C. Upon receipt of a fully completed application that complies with statutes and rules for a limited license and payment of the fee specified in this subsection, the department shall issue a limited license or permit to the applicant showing the limitations specified in the approved application. For each limited license or permit to drive, the applicant shall pay to the department a fee of forty-five dollars ($45.00), which shall be transferred to the state highway and transportation department. All money collected [under] pursuant to this subsection shall be used for DWI prevention and education programs for elementary and secondary school students. The state highway and transportation department shall coordinate with the department of health to ensure that there is no program duplication. The limited license or permit to drive may be suspended as provided in Section 66-5-30 NMSA 1978.

[F.] D. The department, within twenty days of denial of an application for a limited driver's license or permit pursuant to this section, shall afford the applicant a hearing in the county in which the applicant resides, unless the department and the licensee agree that the hearing may be held in some other county. The department may extend the twenty-day period, provided that the extension is in writing and made no later than fifteen days after receipt of an application. Upon hearing, the hearing officer designated by the department may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers. The hearing officer shall make specific findings as to whether the applicant has shown proof of financial responsibility for the future and enrollment in an approved DWI school and an approved alcohol screening program and meets established uniform criteria for limited driving privileges adopted by rule of the department. The hearing officer shall enter an order either approving or denying the applicant's request for a limited license or permit to drive. If any of the specific findings set forth in this subsection are not found by the hearing officer, the applicant's request for a limited license or permit shall not be approved.

[G.] E. A person adversely affected by an order of the hearing officer may seek review within thirty days in the district court in the county in which he resides. On review, it is for the court to determine only whether the applicant met the requirements in this section for issuance of a limited license or permit to drive."

Section 3. Section 66-8-102 NMSA 1978 (being Laws 1953, Chapter 139, Section 54, as amended) is amended to read:

"66-8-102. PERSONS UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--PENALTY.--

A. It is unlawful for [any] a person who is under the influence of intoxicating liquor to drive [any] a vehicle [within] in this state.

B. It is unlawful for [any] a person who is under the influence of any drug to a degree that renders him incapable of safely driving a vehicle to drive [any] a vehicle [within] in this state.

C. It is unlawful for [any] a person who has an alcohol concentration of eight one-hundredths or more in his blood or breath to drive [any] a vehicle [within] in this state.

D. Aggravated driving while under the influence of intoxicating liquor or drugs consists of a person who:

(1) has an alcohol concentration of sixteen one-hundredths or more in his blood or breath while driving [any] a vehicle [within] in this state;

(2) has caused 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) refused 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, was under the influence of intoxicating liquor or drugs.

E. Every person under first conviction [under] pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($500), or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond ninety days but shall not exceed one year. Upon a first conviction [under] pursuant to this section, an offender may be sentenced to not less than forty-eight hours of community service or a fine of three hundred dollars ($300). The offender shall be ordered by the court to participate in and complete a screening program described in Subsection H of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a "DWI school", approved by the [traffic safety] bureau [of the state highway and transportation department] and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. In addition to those penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail. If an offender fails to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court, the offender shall be sentenced to not less than an additional forty-eight consecutive hours in jail. Any jail sentence imposed [under] pursuant to this subsection for failure to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or for aggravated driving while under the influence of intoxicating liquor or drugs shall not be suspended, deferred or taken under advisement. On a first conviction [under] pursuant to this section, any time spent in jail for the offense prior to the conviction for that offense shall be credited to any term of imprisonment fixed by the court. A deferred sentence [under] pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.

F. A second or third conviction [under] pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($1,000), or both; provided that if the sentence is suspended in whole or in part, the period of probation may extend beyond one year but shall not exceed five years. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence:

(1) upon a second conviction, each offender shall be sentenced to a jail term of not less than [seventy-two consecutive hours] five consecutive days, forty-eight hours of community service and a fine of five hundred dollars ($500). In addition to those penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutive hours.

If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional seven consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement; and

(2) upon a third conviction, an offender shall be sentenced to a jail term of not less than thirty consecutive days and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. If an offender fails to complete, within a time specified by the court, any screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional sixty consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.

G. Upon a fourth or subsequent conviction [under] pursuant to this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement.

H. Upon any conviction [under] pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program and, if necessary, a treatment program approved by the court. The penalty imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

I. Upon any subsequent [misdemeanor] conviction [under] pursuant to this section [prior to July 1, 2003], as a condition of probation, an offender [may] shall be required to have all motor vehicles owned by the offender impounded or immobilized for the period that the offender's driver's license is revoked or have an ignition interlock device installed and operating for a period of six months following reinstatement of his driver's license on all motor vehicles owned by the offender or available for the offender's personal use, pursuant to rules adopted by the [traffic safety] bureau. The offender shall pay all costs associated with immobilizing or impounding his motor vehicles or having an ignition interlock device installed on the appropriate motor vehicles.

J. In the case of a first, second or third offense [under] pursuant to this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.

K. A conviction under a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States that is equivalent to New Mexico law for driving while under the influence of intoxicating liquor or drugs, and prescribes penalties for driving while under the influence of intoxicating liquor or drugs shall be deemed to be a conviction [under] pursuant to this section for purposes of determining whether a conviction is a second or subsequent conviction.

L. In addition to any other fine or fee [which] that may be imposed pursuant to the conviction or other disposition of the offense [under] pursuant to this section, the court may order the offender to pay the costs of any court-ordered screening and treatment programs.

M. As used in this section:

(1) "bodily injury" means an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body; and

(2) "conviction" means an adjudication of guilt and does not include imposition of a sentence."

Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2000.