HOUSE BILL 758

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Janice E. Arnold-Jones

AN ACT

RELATING TO MOTOR VEHICLES; PROHIBITING THE USE OF NUISANCE ORDINANCES TO ADDRESS MOTOR VEHICLE VIOLATIONS; AUTHORIZING THE USE OF AUTOMATED ENFORCEMENT SYSTEMS FOR THE ISSUANCE OF CITATIONS FOR CERTAIN VIOLATIONS.

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

     Section 1. Section 3-18-17 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-17-14, as amended) is amended to read:

     "3-18-17. NUISANCES AND OFFENSES--REGULATION OR PROHIBITION.--A municipality, including a home rule municipality that has adopted a charter pursuant to Article 10, Section 6 of the constitution of New Mexico, may by ordinance:

          A. define a nuisance, abate a nuisance and impose penalties upon a person who creates or allows a nuisance to exist; provided that [for a municipality with a population of 200,000 or greater as of the last decennial census, the penalties or fines and costs or fees imposed by an ordinance for failure to obey a traffic sign or signal, including a red light violation, or for a speeding offense or violation, shall be subject to the following criteria:

                (1) the total amount of assessed penalties, fines, fees and costs for each offense or violation shall not

exceed seventy-five dollars ($75.00);

                (2) each month, or other period set by contract, the municipality shall retain from the gross total amount of penalties, fines, fees and costs assessed and collected that month or period an amount subject to audit that is equal to the setup, maintenance, support and processing services fees charged for that month or period pursuant to contractual terms, by a vendor providing systems and services that assist the municipality in imposing penalties or fines and costs or fees as provided in this subsection;

                (3) less the retention authorized in Paragraph (2) of this subsection, the net total amount assessed in fines, fees and costs by the municipality shall be distributed to the administrative office of the courts, of which ten percent of the net total amount assessed shall be credited to DWI drug court programs and ninety percent of the net total amount assessed shall be transferred to the New Mexico finance authority for deposit into the metropolitan court bond guarantee fund; and

                (4) in fiscal year 2009, and annually thereafter, the municipality shall cause an audit of the program to be conducted by the state auditor or an independent auditor selected by the state auditor] the definition, abatement and imposition shall not address a matter for which the municipality may exercise authority pursuant to the Motor Vehicle Code;

          B. regulate or prohibit any amusement or practice that tends to annoy persons on a street or public ground; and

          C. prohibit and suppress:

                (1) gambling and the use of fraudulent devices or practices for the purpose of obtaining money or property;

                (2) the sale, possession or exhibition of obscene or immoral publications, prints, pictures or illustrations;

                (3) public intoxication;

                (4) disorderly conduct; and

                (5) riots, noises, disturbances or disorderly assemblies in any public or private place."

     Section 2. A new section of the Motor Vehicle Code is

enacted to read:

     "[NEW MATERIAL] AUTOMATED ENFORCEMENT SYSTEM CITATIONS.--A

state or local law enforcement agency may use an automated

enforcement system to issue citations for alleged violations of

state or municipal laws relating to motor vehicles that are

punishable as a misdemeanor."

     Section 3. Section 66-1-4.21 NMSA 1978 (being Laws 1998 (1st S.S.), Chapter 10, Section 9) is amended to read:

     "66-1-4.21. ADDITIONAL DEFINITIONS.--As used in the Motor Vehicle Code:

          A. "automated enforcement system" means an

electronic system consisting of cameras and a vehicle sensor

that automatically records images of each vehicle whose driver

violates a traffic law at an intersection or in a school zone

by not obeying a standard traffic-control device;

          [A.] B. "evidence of registration" means any documentation issued by the department identifying a motor carrier vehicle as being registered with New Mexico or documentation issued by another state pursuant to the terms of a multistate agreement on registration of vehicles to which this state is a party identifying a motor carrier vehicle as being registered with that state; provided that evidence of payment of the weight distance tax and permits obtained under either the Special Fuels Supplier Tax Act or Trip Tax Act are not "evidence of registration";

          [B.] C. "fleet" means one or more motor carrier vehicles, either commercial or noncommercial but not mixed, that are operated in this and at least one other jurisdiction;

          [C.] D. "motor carrier" means any person or firm that owns, controls, operates or manages any motor vehicle with gross vehicle weight of twelve thousand pounds or more that is used to transport persons or property on the public highways of this state;

          [D.] E. "one-way rental fleet" means two or more vehicles each having a gross vehicle weight of under twenty-six thousand one pounds and rented to the public without a driver;

          [E.] F. "preceding year" means a period of twelve consecutive months fixed by the department, which period is within the sixteen months immediately preceding the commencement of the registration or license year for which proportional registration is sought. The department, in fixing that period, shall make it conform to the terms, conditions and requirements of any applicable agreement or arrangement for the proportional registration of vehicles;

          [F.] G. "properly registered" means bearing the lawfully issued and currently valid evidence of registration of this or another jurisdiction, regardless of the owner's residence, except in those cases where the evidence has been procured by misrepresentation or fraud; and

          [G.] H. "public highway" means every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction."

     Section 4. Section 66-7-9 NMSA 1978 (being Laws 1978, Chapter 35, Section 379, as amended) is amended to read:

     "66-7-9. POWERS OF LOCAL AUTHORITIES.--

          A. Subject to the limitation in Subsection D of this section, the provisions of the Motor Vehicle Code shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from:

                (1) regulating the standing or parking of vehicles;

                (2) regulating traffic by means of police officers or traffic-control signals;

                (3) regulating or prohibiting processions or assemblages on the highways;

                (4) designating particular highways as one-way highways and requiring that all vehicles thereon be moved in one specific direction;

                (5) regulating the speed of vehicles in public parks;

                (6) designating any highway as a through highway and requiring that all vehicles stop before entering or crossing it or designating any intersection as a stop intersection or a yield intersection and requiring all vehicles to stop or yield at one or more entrances to the intersection;

                (7) restricting the use of highways as authorized in the Motor Vehicle Code;

                (8) regulating the operation of bicycles and requiring their registration and licensing, including the requirement of a registration fee;

                (9) regulating or prohibiting the turning of vehicles, or specified types of vehicles, at intersections;

                (10) altering the maximum speed limits as authorized in the Motor Vehicle Code;

                (11) adopting other traffic regulations as specifically authorized by the Motor Vehicle Code;

                (12) regulating the operation of snowmobiles on public lands, waters and property under their jurisdiction and on streets and highways within their boundaries by resolution or ordinance of their governing bodies and by giving appropriate notice, if such regulation is not inconsistent with the provisions of Sections [66-9-1 through 66-9-13] 66-3-1001 through 66-3-1016 NMSA 1978; [or]

                (13) regulating the operation of golf carts on public lands and property under their jurisdiction and on streets and roads within their boundaries by resolution or ordinance of their governing bodies and requiring their registration and licensing, including the payment of a registration fee; provided, the resolution or ordinance shall:

                     (a) not permit operation of a golf cart on any state highway;

                     (b) require that the golf cart be in compliance with Section 66-3-887 NMSA 1978; and

                     (c) not be inconsistent with the provisions of Sections 66-3-1001 through 66-3-1016 NMSA 1978; or

                (14) regulating traffic and issuing citations by means of an automated enforcement system at intersections or in school zones.

          B. [No] A local authority shall not erect or maintain any stop sign or traffic-control signal at any location so as to require the traffic on any state highway to stop or yield before entering or crossing any intersecting highway unless approval in writing has first been obtained from the state transportation commission.

          C. [No] An ordinance or regulation enacted under Paragraph (4), (5), (6), (7), [or] (10) or (14) of Subsection A of this section shall not be effective until signs giving notice of the local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.

          D. A local authority shall not use its power pursuant to Section 3-18-17 NMSA 1978 to address traffic laws, crimes, penalties and procedures that are provided in or similar to the provisions of the Motor Vehicle Code."

     Section 5. Section 66-8-117 NMSA 1978 (being Laws 1978, Chapter 35, Section 525, as amended) is amended to read:

     "66-8-117. PENALTY ASSESSMENT MISDEMEANORS--OPTION--EFFECT.--

          A. Unless a warning notice is given, at the time of making an arrest for any penalty assessment misdemeanor the arresting officer shall offer the alleged violator the option of accepting a penalty assessment. The violator's signature on the penalty assessment notice constitutes an acknowledgment of guilt of the offense stated in the notice.

          B. In the case of an automated enforcement system citation issued by a law enforcement agency, the violator shall have the option of accepting the penalty assessments or appearing in court. The violator's signature on the penalty assessment notice constitutes an acknowledgment of guilt of the offense stated in the notice.

          [B.] C. Except for penalty assessments made under a municipal program authorized by Section 66-8-130 NMSA 1978, payment of any penalty assessment must be made by mail to the division within thirty days from the date of arrest or notice of an automated enforcement system citation. Payments of penalty assessments are timely if postmarked within thirty days from the date of arrest or notice of an automated enforcement system citation. The division may issue a receipt when a penalty assessment is paid by currency, but checks tendered by the violator upon which payment is received are sufficient receipt.

          [C. No] D. A record of any penalty assessment payment is not admissible as evidence in any court in any civil action."

     Section 6. Section 66-8-124 NMSA 1978 (being Laws 1961, Chapter 213, Section 3, as amended) is amended to read:

     "66-8-124. ARRESTING OFFICER TO BE IN UNIFORM.--

          A. [No] A person shall not be arrested for violating the Motor Vehicle Code or other law relating to motor vehicles punishable as a misdemeanor except by a commissioned, salaried peace officer who, at the time of arrest, is wearing a uniform clearly indicating the peace officer's official status.

          B. Notwithstanding the provisions of Subsection A of this section, a municipality may provide by ordinance that uniformed private security guards may be commissioned by the local police agency to issue parking citations for violations of clearly and properly marked fire zones and access zones for persons with significant mobility limitation. Prior to the commissioning of any security guard, the employer of the security guard shall agree in writing with the local police agency to the commissioning of the employer's security guard. The employer of any security guard commissioned under the provisions of this section shall be liable for the actions of that security guard in carrying out the security guard's duties pursuant to that commission. Notwithstanding the provisions of the Tort Claims Act, private security guards commissioned under this section shall not be deemed public employees under that act.

          C. Notwithstanding the provisions of Subsection A of this section, a state or local law enforcement agency may use an automated enforcement system to issue citations for alleged violations of state or municipal laws relating to motor vehicles that are punishable as a misdemeanor."

     Section 7. Section 66-8-126 NMSA 1978 (being Laws 1978, Chapter 35, Section 534) is amended to read:

     "66-8-126. FAILURE TO OBEY NOTICE TO APPEAR.--

          A. It is a misdemeanor for any person to violate [his] that person's written promise to appear in court given in response to an automated enforcement system citation or to an officer upon issuance of a uniform traffic citation regardless of the disposition of the charge for which the citation was issued.

          B. A written promise to appear in court may be complied with by appearance of counsel."

     Section 8. Section 66-8-128 NMSA 1978 (being Laws 1978, Chapter 35, Section 536, as amended) is amended to read:

     "66-8-128. UNIFORM TRAFFIC CITATION.--

          A. The department shall prepare a uniform traffic citation containing at least the following information:

                (1) an information section, serially numbered and containing spaces for the name, address, city and state of the individual charged; the individual's physical description, age and sex; the registration number, year and state of the vehicle involved and its make and type; the state and number of the individual's driver's license; the specific section number and common name of the offense charged under the NMSA 1978 or of local law; the date and time of arrest; the arresting officer's signature and identification number; and the conditions existing at the time of the violation;

                (2) a notice to appear; and

                (3) a penalty assessment notice with a place for the signature of the violator agreeing to pay the penalty assessment prescribed.

          B. The department shall prescribe how the uniform traffic citation form may be used as a warning notice.

          C. The department shall prescribe the size and number of copies of the paper version of the uniform traffic citation and the disposition of each copy. The department may also prescribe one or more electronic versions of the uniform traffic citation, and these electronic versions may be used in the issuance of citations.

          D. [Any] An entity that wishes to submit uniform traffic citations required to be submitted to the department by electronic means [must] shall secure the prior permission of the department.

          E. The department shall prescribe the form and content of a uniform automated enforcement system citation and the procedures by which the citation may be issued and processed."

     Section 9. Section 66-8-130 NMSA 1978 (being Laws 1978, Chapter 35, Section 538, as amended) is amended to read:

     "66-8-130. ALL TRAFFIC CITATIONS TO CONFORM--MUNICIPALITIES MAY PASS ORDINANCE TO ESTABLISH SIMILAR PROGRAM.--

          A. The uniform traffic citation or the uniform automated enforcement system citation shall be used, as applicable, by all state and local agencies enforcing laws and ordinances relating to motor vehicles. Any municipality may, by passage of an ordinance, establish a municipal penalty assessment program similar to that established in Sections

66-8-116 through 66-8-117 NMSA 1978 for violations of provisions of the Motor Vehicle Code. Every municipality that has adopted an ordinance to establish a penalty assessment program shall assess on all penalty assessment misdemeanors after January 1, 1984, in addition to the penalty assessment, a penalty assessment fee of ten dollars ($l0.00) to be deposited in a special fund in the municipal treasury for use by the municipality only for municipal jailer training; for the construction planning, construction, operation and maintenance of the municipal jail; for paying the costs of housing that municipality's prisoners in other detention facilities in the state; or for complying with match or contribution requirements for the receipt of federal funds relating to jails. Such a municipal program shall be limited to violations of municipal traffic ordinances.

          B. All penalty assessments under a municipal program authorized by this section shall be processed by the municipal court, and all fines and fees collected shall be deposited in the treasury of the municipality. A copy of each penalty assessment processed shall be forwarded to the division within ten days of completion of local processing for posting to the driver's record. With the prior approval of the director, the required information may be submitted to the division by electronic means in lieu of forwarding copies of the penalty assessments.

          C. Each agency shall provide itself with copies conforming exactly in size and format with the uniform traffic citation prescribed by the director, and any alterations to conform with local conditions must be approved by the director."

     Section 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

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