SENATE BILL 954

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

James G. Taylor

AN ACT

RELATING TO CRIMINAL LAW; ENACTING THE FLYING WHILE INTOXICATED ACT; PRESCRIBING PENALTIES FOR OPERATING AN AIRCRAFT WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS; AUTHORIZING TESTING OF A PERSON'S BLOOD OR BREATH FOR ALCOHOL OR DRUGS; REPORTING TO THE FEDERAL AVIATION ADMINISTRATION.

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

     Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 13 of this act may be cited as the "Flying While Intoxicated Act".

     Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Flying While Intoxicated Act:

          A. "aircraft" means any contrivance used or designed for navigation of or flight in the air, except a parachute or other contrivance designed for such navigation but used primarily as safety equipment;

          B. "conviction" means an adjudication of guilt and does not include imposition of a sentence; and

          C. "operate" means to physically handle the controls of an aircraft, set an aircraft in motion or pilot an aircraft.

     Section 3. [NEW MATERIAL] OPERATING AN AIRCRAFT WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--

          A. It is unlawful for a person who is under the influence of intoxicating liquor to operate an aircraft.

          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 operating an aircraft to operate an aircraft.

          C. It is unlawful for a person who has an alcohol concentration of two one hundredths or more in the blood or breath to operate an aircraft.

          D. A person under first conviction 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. On a first conviction 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 pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.

          E. A second or subsequent conviction 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 seven hundred fifty dollars ($750), or both; provided that if the sentence is suspended in whole or in part, the period of probation shall not exceed one year.

     Section 4. [NEW MATERIAL] GUILTY PLEAS--LIMITATIONS.--When a complaint or information alleges a violation of Section 3 of the Flying While Intoxicated Act, any plea of guilty thereafter entered in satisfaction of the charges shall include at least a plea of guilty to the violation of one of the subsections of Section 3 of that act, and no other disposition by plea of guilty to any other charge in satisfaction of the charge shall be authorized if the results of a test performed pursuant to that act disclose that the blood or breath of the person charged contains an alcohol concentration of two one hundredths or more.

     Section 5. [NEW MATERIAL] MUNICIPAL AND COUNTY ORDINANCES--UNLAWFUL ALCOHOL CONCENTRATION LEVEL FOR FLYING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--No municipal or county ordinance prohibiting the operation of an aircraft while under the influence of intoxicating liquor or drugs shall be enacted that provides for an unlawful alcohol concentration level that is different than the alcohol concentration level provided in Section 3 of the Flying While Intoxicated Act.

     Section 6. [NEW MATERIAL] BLOOD-ALCOHOL TESTS--PERSONS QUALIFIED TO PERFORM TESTS--RELIEF FROM CIVIL AND CRIMINAL LIABILITY.--Only a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from a person in the performance of a blood-alcohol or drug test. A physician, nurse, technician or technologist who withdraws blood from a person in the performance of a blood-alcohol or drug test that has been directed by a law enforcement officer, or by a judicial or probation officer, shall not be held liable in a civil or criminal action for assault, battery, false imprisonment or any conduct of a law enforcement officer, except for negligence, nor shall a person assisting in the performance of the test, or a hospital wherein blood is withdrawn in the performance of the test, be subject to civil or criminal liability for assault, battery, false imprisonment or any conduct of a law enforcement officer, except for negligence.

     Section 7. [NEW MATERIAL] BLOOD-ALCOHOL TEST--LAW ENFORCEMENT, JUDICIAL OR PROBATION OFFICER UNAUTHORIZED TO MAKE ARREST OR DIRECT TEST EXCEPT IN PERFORMANCE OF OFFICIAL DUTIES AUTHORIZED BY LAW.--Nothing in the Flying While Intoxicated Act is intended to authorize a law enforcement officer, or a judicial or probation officer, to make an arrest or direct the performance of a blood-alcohol or drug test, except in the performance of his official duties or as otherwise authorized by law.

     Section 8. [NEW MATERIAL] IMPLIED CONSENT TO SUBMIT TO CHEMICAL TEST.--

          A. A person who operates an aircraft within this state shall be deemed to have given consent, subject to the provisions of the Flying While Intoxicated Act, to chemical tests of his blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978 as determined by a law enforcement officer, or for the purposes of determining the drug or alcohol content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was operating an aircraft under the influence of an intoxicating liquor or drug.

          B. The arrested person shall be advised by a law enforcement officer that failure to submit to a chemical test may be introduced into evidence in court and that the court, upon conviction, may impose increased penalties for the person's failure to submit to a chemical test.

          C. A test of blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978, shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was operating an aircraft while under the influence of an intoxicating liquor or drug.

          D. A person who operates an aircraft in this state and who is involved in a fatal flying incident shall be deemed to have given consent, subject to the provisions of the Flying While Intoxicated Act, to mandatory chemical tests of his blood or breath or both, as determined by a law enforcement officer and approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978.

     Section 9. [NEW MATERIAL] CONSENT OF PERSON INCAPABLE OF REFUSAL NOT WITHDRAWN.--A person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by the Flying While Intoxicated Act, and the test designated by the law enforcement officer may be administered.

     Section 10. [NEW MATERIAL] ADMINISTRATION OF CHEMICAL TEST--PAYMENT OF COSTS--ADDITIONAL TESTS.--

          A. Only the persons authorized by the Flying While Intoxicated Act shall withdraw blood from a person for the purpose of determining its alcohol or drug content. This limitation does not apply to the taking of samples of breath.

          B. The person tested shall be advised by the law enforcement officer of the person's right to be given an opportunity to arrange for a physician, licensed professional or practical nurse or laboratory technician or technologist who is employed by a hospital or physician of the person's own choosing to perform a chemical test in addition to a test performed at the direction of a law enforcement officer.

          C. Upon the request of the person tested, full information concerning the test performed at the direction of the law enforcement officer shall be made available to the persons as soon as it is available from the person performing the test.

          D. The agency represented by the law enforcement officer at whose direction the chemical test is performed shall pay for the chemical test.

          E. If a person exercises the right under Subsection B of this section to have a chemical test performed upon him by a person of his own choosing, the cost of that test shall be paid by the agency represented by the law enforcement officer at whose direction a chemical test was administered pursuant to Section 8 of the Flying While Intoxicated Act.

     Section 11. [NEW MATERIAL] REPORTING TO THE FEDERAL AVIATION ADMINISTRATION.--

          A. A law enforcement officer shall report to the federal aviation administration:

                (1) the name of a person and the results of that person's chemical test administered pursuant to the Flying While Intoxicated Act; or

                (2) the name of a person who refused to submit to a chemical test under that act.

          B. If a person is convicted of operating an aircraft while under the influence of intoxicating liquor or drugs, a report of the conviction shall be forwarded by the court in which the conviction occurred to the federal aviation administration.

     Section 12. [NEW MATERIAL] USE OF TESTS IN CRIMINAL OR CIVIL ACTIONS--LEVELS OF INTOXICATION--MANDATORY CHARGING.--

          A. The results of a test performed pursuant to the Flying While Intoxicated Act may be introduced into evidence in a civil action or criminal action arising out of the acts alleged to have been committed by the person tested for operating an aircraft while under the influence of intoxicating liquor or drugs.

          B. When the blood or breath of the person tested contains an alcohol concentration of two one hundredths or more, the arresting officer shall charge him with a violation of Section 3 of the Flying While Intoxicated Act.

          C. The determination of alcohol concentration shall be based on the grams of alcohol in one hundred milliliters of blood or the grams of alcohol in two hundred ten liters of breath.

          D. The alcohol concentration in a person's blood or breath shall be determined by a chemical test administered to the person within three hours of the alleged flying while under the influence of intoxicating liquor. In a prosecution pursuant to the provisions of the Flying While Intoxicated Act, it is a rebuttable presumption that a person is in violation of the provisions of that act if the person has an alcohol concentration of two one hundredths or more in his blood or breath as determined by a chemical test administered to the person within three hours of the alleged flying while under the influence of intoxicating liquor. If the chemical test is administered more than three hours after the alleged flying while under the influence of intoxicating liquor, the test result is admissible as evidence of the alcohol concentration in the person's blood or breath at the time of the alleged flying and the trier of fact shall determine what weight to give the test result.

          E. If a person is convicted of operating an aircraft while under the influence of intoxicating liquor or drugs, the trial judge shall be required to inquire into past convictions of the person for operating an aircraft while under the influence of intoxicating liquor or drugs before sentence is entered in the matter.

     Section 13. [NEW MATERIAL] AIRCRAFT--INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--FEE UPON CONVICTION.--

          A. A person convicted of a violation of the Flying While Intoxicated Act shall be assessed by the court, in addition to any other fee or fine, a fee of sixty-five dollars ($65.00) to defray the costs of chemical and other tests used to determine the influence of intoxicating liquor or drugs.

          B. All fees collected pursuant to the provisions of this section shall be transmitted monthly to the crime laboratory fund. All balances in the crime laboratory fund collected pursuant to this section are appropriated to the administrative office of the courts for payment upon invoice to the scientific laboratory division of the department of health for the costs of chemical and other tests used to determine the influence of intoxicating liquor or drugs.

          C. Payment of funds out of the crime laboratory fund of fees collected pursuant to this section shall be made upon vouchers issued and signed by the director of the administrative office of the courts upon warrants drawn by the department of finance and administration.

     Section 14. Section 24-1-22 NMSA 1978 (being Laws 1981, Chapter 165, Section 1, as amended) is amended to read:

     "24-1-22. SCIENTIFIC LABORATORY DIVISION--TESTING METHODS--CERTIFICATION.--

          A. The scientific laboratory division of the department of health is authorized to promulgate and approve satisfactory techniques or methods to test persons believed to be operating a motor vehicle, [or] a motorboat or an aircraft under the influence of drugs or alcohol and to issue certification for test operators and their instructors that shall be subject to termination or revocation at the discretion of the scientific laboratory division. The scientific laboratory division is further authorized to establish or approve quality control measures for alcohol breath testing and to establish or approve standards of training necessary to ensure the qualifications of individuals conducting these analyses or collections.

          B. The scientific laboratory division shall establish criteria and specifications for equipment, training, quality control, testing methodology, blood-breath relationships and the certification of operators, instructors and collectors of breath samples.

          C. All laboratories analyzing breath, blood or urine samples pursuant to the provisions of the Implied Consent Act, [and] the Boating While Intoxicated Act and the Flying While Intoxicated Act shall be certified by the scientific laboratory division. The certification shall be granted in accordance with the rules and regulations of the scientific laboratory division and shall be subject to termination or revocation for cause."

     Section 15. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.

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