House Bill text for HB0212

HOUSE BILL 212

49th legislature - STATE OF NEW MEXICO - second session, 2010

INTRODUCED BY

William "Bill" R. Rehm

AN ACT

RELATING TO ALCOHOLIC BEVERAGES; PROVIDING LIQUOR CONTROL ENFORCEMENT DUTIES TO LOCAL LAW ENFORCEMENT AGENCIES; PROVIDING FOR THREE-YEAR SERVER PERMITS; MODIFYING VIOLATIONS FOR SERVICE TO MINORS; ADDING EXCEPTIONS; REQUIRING VERTICAL DRIVER'S LICENSES AND IDENTIFICATION CARDS FOR PERSONS CONVICTED OF DWI FOUR OR MORE TIMES; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2007.

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

Section 1. Section 3-13-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-12-2, as amended) is amended to read:

"3-13-2. POLICE OFFICERS.--

A. The police officer of a municipality shall:

(1) execute and return all writs and process as directed by the municipal judge of the municipality employing the police officer;

(2) execute and return all criminal process as directed by the municipal judge of any incorporated municipality in the state if the criminal process arises out of a charge of violation of a municipal ordinance prohibiting driving while under the influence of intoxicating liquor or drugs;

(3) serve criminal writs and process specified in Paragraphs (1) and (2) of this subsection in any part of the county wherein the municipality is situated; and

(4) within the municipality:

(a) suppress all riots, disturbances and breaches of the peace;

(b) apprehend all disorderly persons;

(d) apprehend any person in the act of violating the laws of the state or the ordinances of the municipality and bring [him] the person before competent authority for examination and trial.

B. The police officer of a municipality may issue citations for violations of the Liquor Control Act.

[B.] C. In the discharge of [his] proper duties, a police officer shall have the same powers and be subject to the same responsibilities as sheriffs in similar cases."

Section 2. Section 4-41-2 NMSA 1978 (being Laws 1865, Chapter 99, Section 3, as amended) is amended to read:

"4-41-2. DUTIES OF SHERIFF.--[Sec. 199.]

A. The sheriff shall be conservator of the peace within [his] the sheriff's county, shall suppress assaults and batteries and apprehend and commit to jail all felons and traitors and shall cause all offenders to keep the peace and to appear at the next term of the court and answer such charges as may be preferred against them.

B. The sheriff may issue citations for violations of the Liquor Control Act."

Section 3. Section 29-1-1 NMSA 1978 (being Laws 1921, Chapter 170, Section 1, as amended) is amended to read:

"29-1-1. INVESTIGATION OF CRIMINAL VIOLATIONS--COMMENCEMENT OF PROSECUTION--COOPERATION--REMOVAL.--It is [hereby declared to be] the duty of every sheriff, deputy sheriff [constable] and [every other] peace officer to investigate all violations of the criminal laws of the state, [which] including violations of the Liquor Control Act, that are called to the attention of any such officer or of which [he] the officer is aware [and]. It is also [declared] the duty of every such officer to diligently file a complaint or information, if the circumstances are such as to indicate to a reasonably prudent person that [such] the action should be taken [and]. It is also [declared his] the officer's duty to cooperate with and assist the attorney general, district attorney or other prosecutor, if any, in all reasonable ways. [Such] The cooperation [shall include] includes the prompt reporting of all arrests for liquor law violations at licensed liquor establishments to the [department of alcoholic beverage control] alcohol and gaming division of the regulation and licensing department. Failure to perform [his] the officer's duty in any material way shall subject [such] the officer to removal from office and to payment of all costs of prosecution."

Section 4. Section 60-6E-7 NMSA 1978 (being Laws 1999, Chapter 277, Section 8) is amended to read:

"60-6E-7. SERVER PERMITS--ISSUANCE--OWNERSHIP--FEES.--

A. The director shall issue a server permit to each applicant who obtains a certificate of program completion and provides such other information as may be required by the director. The director may, in the director's discretion, issue temporary server permits if circumstances warrant such issuance.

B. Server permits shall not be issued to graduates of programs that are not approved by the director.

C. A server permit is the property of the server to whom it is issued.

D. The director may charge a fee for the issuance of the server permit.

E. Server permits shall be valid for a period of [five] three years from the date the server permit was issued.

F. A certificate of completion of an alcohol server education program issued pursuant to previous law shall remain valid until the date of its expiration."

Section 5. Section 60-7B-1 NMSA 1978 (being Laws 1993, Chapter 68, Section 22, as amended) is amended to read:

"60-7B-1. SELLING OR GIVING ALCOHOLIC BEVERAGES TO

MINORS--POSSESSION OF ALCOHOLIC BEVERAGES BY MINORS.--

A. It is a violation of the Liquor Control Act for a person, including a person licensed pursuant to the provisions of the Liquor Control Act, or an employee, agent or lessee of that person, if [he] the person knows or has reason to know that [he] the person is violating the provisions of this section, to:

(1) sell, serve or give alcoholic beverages to a minor or permit a minor to consume alcoholic beverages on the licensed premises;

(2) buy alcoholic beverages for or procure the sale or service of alcoholic beverages to a minor;

(3) deliver alcoholic beverages to a minor; or

(4) aid or assist a minor to buy, procure or be served with alcoholic beverages.

B. It is not a violation of the Liquor Control Act, as provided in Subsection A or C of this section, when:

(1) a parent, legal guardian or adult spouse of a minor serves alcoholic beverages to that minor on real property other than licensed premises, [under the control of the parent, legal guardian or adult spouse] or on licensed premises that derive more than sixty percent of annual gross receipts from the sale of food for consumption on the premises;

(2) a parent, legal guardian or adult spouse of a minor serves alcoholic beverages to that minor at traditional ceremonies or at celebrations associated with traditional ceremonies; or

[(2)] (3) alcoholic beverages are used in the practice of religious beliefs.

C. It is a violation of the Liquor Control Act for a minor to buy, attempt to buy, receive, possess or permit [himself] the minor's self to be served with alcoholic beverages.

D. When a person other than a minor procures another person to sell, serve or deliver alcoholic beverages to a minor by actual or constructive misrepresentation of facts or concealment of facts calculated to cause the person selling, serving or delivering the alcoholic beverages to the minor to believe that the minor is legally entitled to be sold, served or delivered alcoholic beverages, and actually deceives that person by that misrepresentation or concealment, then the procurer and not the person deceived shall have violated the provisions of the Liquor Control Act.

E. As used in the Liquor Control Act, "minor" means a person under twenty-one years of age.

F. In addition to the penalties provided in Section 60-6C-1 NMSA 1978, a violation of the provisions of Subsection A of this section is [a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978]:

(1) for a person other than a server, a fourth degree felony and the offender shall be sentenced pursuant to Section 31-18-15 NMSA 1978;

(2) for a server, a misdemeanor for a first, second or third violation and the offender shall be sentenced pursuant to Section 31-19-1 NMSA 1978 and a fourth degree felony for a fourth or subsequent violation and the offender shall be sentenced pursuant to Section 31-18-15 NMSA 1978; and

(3) for a server who intentionally and willfully commits a violation, a fourth degree felony and the offender shall be sentenced pursuant to Section 31-18-15 NMSA 1978.

G. A violation of the provisions of Subsection C of this section is a misdemeanor and the offender shall be punished as follows:

(1) for a first violation, the offender shall be:

(a) fined an amount not more than one thousand dollars ($1,000); and

(b) ordered by the sentencing court to perform thirty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor;

(2) for a second violation, the offender shall:

(a) be fined an amount not more than one thousand dollars ($1,000);

(b) be ordered by the sentencing court to perform forty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and

(c) have [his] the offender's driver's license suspended for a period of ninety days. If the minor is too young to possess a driver's license at the time of the violation, then ninety days shall be added to the date [he] the offender would otherwise become eligible to obtain a driver's license; and

(3) for a third or subsequent violation, the offender shall:

(a) be fined an amount not more than one thousand dollars ($1,000);

(b) be ordered by the sentencing court to perform sixty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and

(c) have [his] the offender's driver's license suspended for a period of two years or until the offender reaches twenty-one years of age, whichever period of time is greater.

H. A violation of the provisions of Subsection D of this section is a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

I. As used in this section, "server" means an individual who sells, serves or dispenses alcoholic beverages for consumption on or off licensed premises, including an individual who manages, directs or controls the sale or service of alcohol. "Server" does not include an officer of a corporate licensee or lessee who does not manage, direct or control the sale or service of alcohol."

Section 6. A new section of the Liquor Control Act is enacted to read:

"[NEW MATERIAL] SALES AND SERVICE PROHIBITED TO PERSONS WITH CERTAIN DRIVER'S LICENSES OR IDENTIFICATION CARDS.--

A. A licensee or a licensee's agent or employee shall not sell, serve or provide alcoholic beverages to a person who has a New Mexico driver's license or an identification card that is printed in a vertical format.

B. It is an affirmative defense to a prosecution brought pursuant to this section that, before selling any alcoholic beverages, the accused in good faith demanded and was shown documentary evidence of age and identity containing a picture and issued by a federal, state, county or municipal government."

Section 7. Section 66-5-5 NMSA 1978 (being Laws 1978, Chapter 35, Section 227, as amended by Laws 2007, Chapter 316, Section 1 and by Laws 2007, Chapter 317, Section 1) is amended to read:

"66-5-5. PERSONS NOT TO BE LICENSED.--The division 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 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 application; and

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

(a) the motorcycle 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 approves and certifies motorcycles as not in excess of one hundred cubic centimeters displacement and by 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 and the Ignition Interlock Licensing Act;

C. who is an habitual user of narcotic drugs or alcohol or an habitual user of any drug to a degree that renders the person incapable of safely driving a motor vehicle;

D. who is four or more 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, except as provided in the Ignition Interlock Licensing Act. Five years from the date of the fourth conviction and every five years thereafter, 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 drugs. Upon issuance of the order of restoration, a certified copy shall immediately be forwarded to the division, and if the person is otherwise qualified for the license applied for, the four previous convictions shall not prohibit issuance of the license; provided that a driver's license issued after four or more convictions shall be printed in a vertical format until ten years from the date of the last conviction;

E. who was convicted on or after June 17, 2005 of driving a motor vehicle while under the influence of intoxicating liquor or drugs pursuant to the laws or ordinances of any other state, the District of Columbia or any governmental subdivision thereof, unless the person obtains an ignition interlock license as provided in the Ignition Interlock Licensing Act for a period of one year for a first conviction; a period of two years for a second conviction; a period of three years for a third conviction; or the remainder of the offender's life for a fourth or subsequent conviction, subject to a five-year review as provided in Subsection D of this section. Upon presentation of proof satisfactory to the division, the division may credit time spent by a person operating a motor vehicle with an ignition interlock or comparable device, as a condition of the person's sentence for a conviction in another jurisdiction pursuant to this subsection, against the ignition interlock time requirements imposed by this subsection. The division shall promulgate rules necessary for granting credit to persons who participate in comparable out-of-state programs following a conviction for driving a motor vehicle while under the influence of intoxicating liquor or drugs. The requirements of this subsection shall not apply to a person who applies for a driver's license ten years or more from the date of the person's last conviction, except for a person who is subject to lifetime driver's license revocation for a conviction in another jurisdiction [pursuant to this subsection]; F. who has previously been afflicted with or who is suffering from any mental disability or disease that would render the person unable to drive a motor vehicle with safety upon the highways and who has not, at the time of application, been restored to health;

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

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

I. when the director 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

J. 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 rules of the bureau."

Section 8. Section 66-5-47 NMSA 1978 (being Laws 1978, Chapter 35, Section 269, as amended) is amended to read:

"66-5-47. PHOTOGRAPHS ON DRIVER'S LICENSES--VERTICAL FORMAT--PRINTED LEGEND--EVIDENCE OF APPLICANT'S AGE.--

A. The department shall reproduce the likeness of drivers [subject to the following conditions:

(1)] on all driver's licenses. Photographs or other reproductions of the likeness of all persons shall show a full face or front view [and

(2) photographs or other reproductions of the likeness of all persons].

B. The driver's license of a person under the age of twenty-one years shall be printed in a vertical format and shall have a printed legend, indicating that the person is under twenty-one years of age, which shall be displayed in such manner as to be easily read by any person inspecting the license.

C. The driver's license of a person convicted four or more times for driving under the influence of intoxicating liquor or drugs shall be printed in a vertical format and shall have a similar appearance to the license of a person under twenty-one years of age, except without the printed legend indicating that the person is under twenty-one years of age. The requirement of a vertical-format license pursuant to this subsection applies until ten years from the date of the last conviction.

[B.] D. Each applicant for an initial license or a replacement license shall produce evidence of the applicant's age. Proof of an applicant's age shall be a birth certificate, a certified copy of a birth certificate, a church record purporting to show the date of birth and baptism, an acknowledged copy of the church record, a valid passport or other evidence [which] that the secretary deems sufficient. The date of birth shown on [any] a driver's license or [any] instruction permit issued by the department shall coincide with the date of birth shown on the proof of applicant's age."

Section 9. Section 66-5-405 NMSA 1978 (being Laws 1978, Chapter 35, Section 332, as amended) is amended to read:

"66-5-405. CONTENTS OF IDENTIFICATION CARD--VERTICAL FORMAT--PRINTED LEGEND.--

A. The identification card shall adequately describe the registrant and bear [his] the registrant's picture that shall show a full face or front view for all registrants and indicate donor status. [All identification cards of persons under the age of twenty-one years shall have a printed legend indicating that the person is under twenty-one.] The identification card shall bear the following statement:

"STATE OF NEW MEXICO IDENTIFICATION

CARD NO.____________

This card is provided solely for the purpose of establishing that the bearer described on the card was not the holder of a New Mexico driver's license as of the date of issuance of this card. This identification card is not a license. ISSUED FOR IDENTIFICATION PURPOSES ONLY.".

B. An identification card of a person under the age of twenty-one years shall be printed in a vertical format and shall have a printed legend indicating that the person is under the age of twenty-one years.

C. An identification card of a person convicted four or more times for driving under the influence of intoxicating liquor or drugs shall be printed in a vertical format and shall have a similar appearance to the identification card of a person under twenty-one years of age, except without the printed legend indicating that the person is under twenty-one years of age. The requirement of a vertical- format identification card pursuant to this subsection applies until ten years from the date of the last conviction."

Section 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.