SB0171

SENATE BILL 171

52nd legislature - STATE OF NEW MEXICO - second session, 2016

INTRODUCED BY

Cliff R. Pirtle

AN ACT

RELATING TO COMMERCIAL DRIVER'S LICENSES; PROHIBITING THE USE OF A HANDHELD MOBILE COMMUNICATION DEVICE WHILE DRIVING A COMMERCIAL MOTOR VEHICLE; DEFINING TEXTING WHILE DRIVING AND USE OF A HANDHELD MOBILE COMMUNICATION DEVICE AS SERIOUS TRAFFIC VIOLATIONS; DISQUALIFYING A PERSON FROM DRIVING A COMMERCIAL MOTOR VEHICLE FOR LIFE IF CONVICTED OF USING ANY MOTOR VEHICLE IN THE COMMISSION OF CERTAIN FELONIES; ADDING A PENALTY ASSESSMENT MISDEMEANOR.

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

SECTION 1. A new section of the Motor Vehicle Code is enacted to read:

"[NEW MATERIAL] USE OF A HANDHELD MOBILE COMMUNICATION DEVICE WHILE DRIVING A COMMERCIAL MOTOR VEHICLE.--

A. A person shall not use a handheld mobile communication device for any purpose while driving a commercial motor vehicle except to summon medical or other emergency help or unless that device is an amateur radio and the driver holds a valid amateur radio operator license issued by the federal communications commission. This prohibition is a separate prohibition from the prohibition on texting while driving pursuant to Section 66-7-374 NMSA 1978.

B. The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a handheld mobile communication device. Unless otherwise provided by law, the handheld mobile communication device used in the violation of the provisions of this section is not subject to search by a law enforcement officer during a traffic stop made pursuant to the provisions of this section.

C. As used in this section:

(1) "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

(a) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;

(b) has a gross vehicle weight rating of more than twenty-six thousand pounds;

(d) is of any size and is used in the transportation of hazardous materials as provided in 49 CFR Part 383.5;

(2) "driving" means being in actual physical control of a commercial motor vehicle on a highway or street and includes being temporarily stopped because of traffic, a traffic light or stop sign or otherwise; but "driving" excludes a commercial motor vehicle when the vehicle has pulled over to the side of or off of an active roadway and has stopped at a location in which it can safely remain stationary;

(3) "handheld mobile communication device" means a wireless communication device that is designed to receive and transmit text, voice or image messages; provided, however, that "handheld mobile communication device" excludes global positioning or navigation systems; citizen band radios with a handheld microphone operated by a single button or lever; devices that are physically or electronically integrated into a commercial motor vehicle; and voice-operated or hands-free devices that allow the user to compose, send or read a text message or talk without the use of a hand, except to activate, deactivate or initiate a feature or function; and

(4) "text message" means a digital communication transmitted or intended to be transmitted between communication devices and includes electronic mail, an instant message, a text or image communication and a command or request to an internet site; but "text message" excludes communications through the use of a computer-aided dispatch service by law enforcement or rescue personnel."

SECTION 2. Section 66-5-54 NMSA 1978 (being Laws 1989, Chapter 14, Section 3, as amended) is amended to read:

"66-5-54. DEFINITIONS.--As used in the New Mexico Commercial Driver's License Act:

A. "commerce" means:

(1) trade, traffic or transportation within the jurisdiction of the United States between a place in New Mexico and a place outside of New Mexico, including a place outside of the United States; and

(2) trade, traffic or transportation in the United States that affects any trade, traffic or transportation described in Paragraph (1) of this subsection;

B. "commercial driver's license holder" means an individual to whom a license has been issued by a state or other jurisdiction, in accordance with the standards found in 49 CFR Part 383, as amended or renumbered, that authorizes the individual to operate a commercial motor vehicle;

C. "commercial driver's license information system" means the information system created pursuant to the federal Commercial Motor Vehicle Safety Act of 1986 that contains information pertaining to operators of commercial motor vehicles;

D. "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

(1) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;

(2) has a gross vehicle weight rating of more than twenty-six thousand pounds;

(3) is designed to transport sixteen or more passengers, including the driver; or

(4) is of any size and is used in the transportation of hazardous materials, as [hazardous materials are defined] provided in 49 CFR Part 383.5;

E. "conviction" means:

(1) an unvacated adjudication of guilt or a determination that a person has violated or failed to comply with the law by:

(a) a court of original jurisdiction; or

(b) an authorized administrative tribunal;

(2) an unvacated forfeiture of bail or collateral deposited to secure a person's appearance in court;

(3) a plea of guilty or nolo contendere accepted by the court;

(4) the payment of a fine or court cost;

(5) a violation of a condition of release without bail, regardless of whether the payment is rebated, suspended or probated;

(6) an assignment to a diversion program or a driver improvement school; or

(7) a conditional discharge as provided in Section 31-20-13 NMSA 1978;

F. "director" means the director of the motor vehicle division of the department;

G. "disqualification" means:

(1) a suspension, revocation or cancellation of a commercial driver's license by the state or jurisdiction that issued the commercial driver's license;

(2) a withdrawal of a person's privileges to drive a commercial motor vehicle by a state or other jurisdiction as the result of a violation of state or local law relating to motor vehicle control other than a parking, vehicle weight or vehicle defect violation; and

(3) a determination by the federal motor carrier safety administration that a person is not qualified to operate a motor vehicle;

H. "division" means the motor vehicle division of the department;

I. "driving a commercial motor vehicle while under the influence of alcohol" means:

(1) driving a commercial motor vehicle while the driver has an alcohol concentration in the driver's blood or breath of four one hundredths or more;

(2) driving a commercial motor vehicle while the driver is under the influence of intoxicating liquor; or

(3) refusal to submit to chemical tests administered pursuant to Section 66-8-107 NMSA 1978;

J. "employee" means an operator of a commercial motor vehicle, including full-time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers; and independent owner-operator contractors, while in the course of operating a commercial motor vehicle, who is either directly employed by or under lease to an employer;

K. "employer" means a person, including the United States, a state and a political subdivision of a state or their agencies or instrumentalities, that owns or leases a commercial motor vehicle or assigns employees to operate such a vehicle;

L. "fatality" means the death of a person as a result of a motor vehicle accident;

M. "gross combination weight rating" means the value specified by the manufacturer as the loaded weight of a combination vehicle. In the absence of a value specified by the manufacturer, gross combination weight rating shall be determined by adding the gross vehicle weight rating of the power unit and the total weight of the towed unit or units and any load thereon;

N. "gross vehicle weight rating" means the value specified by the manufacturer as the loaded weight of a single vehicle;

O. "imminent hazard" means a condition that presents a substantial likelihood that death, serious illness, severe personal injury or a substantial endangerment to health, property or the environment will occur before the reasonable foreseeable completion date of a formal proceeding to lessen the risk of that death, illness, injury or endangerment;

P. "noncommercial motor vehicle" means a motor vehicle or combination of motor vehicles that is not a commercial motor vehicle;

Q. "nonresident commercial driver's license" means a commercial driver's license issued by another state to a person domiciled in that state or by a foreign country to a person domiciled in that country;

R. "out-of-service order" means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican or local jurisdiction that a driver, a commercial motor vehicle or a motor carrier operation is temporarily prohibited from operating;

S. "railroad-highway grade crossing violation" means a violation of a provision of Section 66-7-341 or 66-7-343 NMSA 1978 or a violation of federal or local law, ordinance or rule pertaining to stopping at or crossing a railroad-highway grade crossing;

T. "serious traffic violation" means conviction of any of the following if committed when operating a motor vehicle:

(1) speed of fifteen miles or more per hour above the posted limits;

(2) reckless driving as defined by Section 66-8-113 NMSA 1978 or a municipal ordinance or the law of another state;

(3) homicide by vehicle, as defined in Section 66-8-101 NMSA 1978;

(4) injury to pregnant woman by vehicle as defined in Section 66-8-101.1 NMSA 1978 or a municipal ordinance or the law of another state;

(5) any other violation of law relating to motor vehicle traffic control, other than a parking violation, that the secretary determines by regulation to be a serious traffic violation. "Serious traffic violation" does not include a vehicle weight or vehicle defect violation;

(6) improper or erratic lane changes in violation of Section 66-7-317 NMSA 1978;

(7) following another vehicle too closely in violation of Section 66-7-318 NMSA 1978;

(8) texting while driving in violation of Section 66-7-374 NMSA 1978 or a municipal ordinance;

(9) use of a handheld mobile communication device while driving a commercial motor vehicle in violation of Section 1 of this 2016 act or a municipal ordinance;

[(8)] (10) directly or indirectly causing death or great bodily injury to a human being in the unlawful operation of a motor vehicle in violation of Section 66-8-101 NMSA 1978;

[(9)] (11) driving a commercial motor vehicle without possession of a commercial driver's license in violation of Section 66-5-59 NMSA 1978;

[(10)] (12) driving a commercial motor vehicle without the proper class of commercial driver's license and endorsements pursuant to Section 66-5-65 NMSA 1978 and the Motor Carrier Safety Act for the specific vehicle group operated or for the passengers or type of cargo transported; or

[(11)] (13) driving a commercial motor vehicle without obtaining a commercial driver's license in violation of Section 66-5-59 NMSA 1978; and

U. "state of domicile" means the state in which a person has a true, fixed and permanent home and principal residence and to which the person has the intention of returning whenever the person has been absent from that state."

SECTION 3. Section 66-5-68 NMSA 1978 (being Laws 1989, Chapter 14, Section 17, as amended) is amended to read:

"66-5-68. DISQUALIFICATION.--

A. The department shall disqualify a person from driving a commercial motor vehicle for at least thirty days if the federal motor carrier safety administration reports to the division that the person poses an imminent hazard.

B. The department shall disqualify a person who holds a commercial driver's license or who is required to hold a commercial driver's license from driving a commercial motor vehicle for a period of not less than one year, which shall run concurrently with any revocation or suspension action for the same offense, if the person:

(1) refuses to submit to a chemical test when requested pursuant to the provisions of the Implied Consent Act;

(2) is twenty-one years of age or more and submits to chemical testing pursuant to the Implied Consent Act and the test results indicate an alcohol concentration of eight one hundredths or more;

(3) submits to chemical testing pursuant to the Implied Consent Act and the test results indicate an alcohol concentration of four one hundredths or more if the person is driving a commercial motor vehicle;

(4) is less than twenty-one years of age and submits to chemical testing pursuant to the Implied Consent Act and the test results indicate an alcohol concentration of two one hundredths or more; or

(5) is convicted of a violation of:

(a) driving a motor vehicle while under the influence of intoxicating liquor or drugs in violation of Section 66-8-102 NMSA 1978, an ordinance of a municipality of this state or the law of another state;

(b) leaving the scene of an accident involving a commercial motor vehicle driven by the person in violation of Section 66-7-201 NMSA 1978 or an ordinance of a municipality of this state or the law of another state;

(d) driving a commercial motor vehicle after the driver's commercial driver's license is revoked, suspended, disqualified or canceled for violations while operating a commercial motor vehicle; or

(e) causing a fatality in the unlawful operation of a motor vehicle pursuant to Section 66-8-101 NMSA 1978.

C. The department shall disqualify a person from driving a commercial motor vehicle for a period of not less than three years if any of the violations specified in Subsection B of this section occur while transporting a hazardous material required to be placarded.

D. The department shall disqualify a person from driving a commercial motor vehicle for life if convicted of two or more violations of any of the offenses specified in Subsection B of this section, or any combination of those offenses, arising from two or more separate incidents, but the secretary may issue [regulations] rules establishing guidelines, including conditions, under which a disqualification for life under this subsection may be reduced to a period of not less than ten years. This subsection applies only to those offenses committed after July 1, 1989.

E. The department shall disqualify a person from driving a commercial motor vehicle for life if the person [uses a commercial] is convicted of using a motor vehicle in the commission of any felony involving the manufacture, distribution or dispensing of a controlled substance [or the possession with intent to manufacture, distribute or dispense a controlled substance].

F. The department shall disqualify a person from driving a commercial motor vehicle for a period of not less than sixty days if convicted of two serious traffic violations or one hundred twenty days if convicted of three serious traffic violations, if the violations were committed while driving a commercial motor vehicle, arising from separate incidents occurring within a three-year period.

G. The department shall disqualify a person from driving a commercial motor vehicle for a period of:

(1) not less than one hundred eighty days nor more than two years if the person is convicted of a first violation of an out-of-service order while transporting hazardous materials required to be placarded pursuant to the federal Hazardous Materials Transportation Act or while operating a motor vehicle designed to transport more than fifteen passengers, including the driver;

(2) not more than one year if the person is convicted of a first violation of an out-of-service order; or

(3) not less than three years nor more than five years if, during any ten-year period, the person is convicted of any subsequent violations of out-of-service orders, in separate incidents, while transporting hazardous materials required to be placarded pursuant to that act or while operating a motor vehicle designed to transport more than fifteen passengers, including the driver.

H. The department shall disqualify a person from driving a commercial motor vehicle for sixty days if:

(1) the person has been convicted of two serious traffic violations in separate incidents within a three-year period; and

(2) the second conviction results in revocation, cancellation or suspension of the person's commercial driver's license or noncommercial motor vehicle driving privileges for sixty days.

I. The department shall disqualify a person from driving a commercial motor vehicle for one hundred twenty days, in addition to any other period of disqualification, if:

(1) the person has been convicted of more than two serious traffic violations within a three-year period; and

(2) the third or a subsequent conviction results in the revocation, cancellation or suspension of the person's commercial driver's license or noncommercial motor vehicle driving privileges.

J. When a person is disqualified from driving a commercial motor vehicle, any commercial driver's license held by that person is invalidated without a separate proceeding of any kind and the driver is not eligible to apply for a commercial driver's license until the period of time for which the driver was disqualified has elapsed.

K. The department shall disqualify a person from driving a commercial motor vehicle for not less than:

(1) sixty days if the person is convicted of a first violation of a railroad-highway grade crossing violation;

(2) one hundred twenty days if, during any three-year period, the person is convicted of a second railroad-highway grade crossing violation in a separate incident; and

(3) one year if, during any three-year period, the person is convicted of a third or subsequent railroad-highway grade crossing violation in a separate incident.

L. After disqualifying, suspending, revoking or canceling a commercial driver's license, the department shall, within ten days, update its records to reflect that action. After disqualifying, suspending, revoking or canceling a nonresident commercial driver's privileges, the department shall, within ten days, notify the licensing authority of the state that issued the commercial driver's license.

M. When disqualifying, suspending, revoking or canceling a commercial driver's license, the department shall treat a conviction received in another state in the same manner as if it was received in this state.

N. The department shall post and enforce any disqualification sent by the federal motor carrier safety administration to the department that indicates that a commercial motor vehicle driver poses an imminent hazard.

O. The federal transportation security administration of the department of homeland security shall provide for an appeal of a disqualification for a commercial driver's license hazardous materials endorsement on the basis of a background check, and the department shall provide to a hazardous materials applicant a copy of the procedures established by the transportation security administration, on request, at the time of application.

P. New Mexico shall conform to the federal transportation security administration of the department of homeland security rules and shall "look back" or review a maximum of seven years for a background check."

SECTION 4. Section 66-8-116 NMSA 1978 (being Laws 1978, Chapter 35, Section 524, as amended) is amended to read:

"66-8-116. PENALTY ASSESSMENT MISDEMEANORS--

DEFINITION--SCHEDULE OF ASSESSMENTS.--

A. As used in the Motor Vehicle Code, "penalty assessment misdemeanor" means violation of any of the following listed sections of the NMSA 1978 for which, except as provided in Subsections D and E of this section, the listed penalty assessment is established:

COMMON NAME OF OFFENSE SECTION VIOLATED PENALTY ASSESSMENT

Improper display of

registration plate 66-3-18 $ 25.00

Failure to notify of

change of name or address 66-3-23 25.00

Lost or damaged registration,

plate or title 66-3-24 20.00

Permitting unauthorized

minor to drive 66-5-40 50.00

Permitting unauthorized

person to drive 66-5-41 25.00

Failure to obey sign 66-7-104 10.00

Failure to obey signal 66-7-105 10.00

Speeding 66-7-301

(1) up to and including

ten miles an hour

over the speed limit 15.00

(2) from eleven up to

and including fifteen

miles an hour

over the speed limit 30.00

(3) from sixteen up to

and including twenty

miles an hour over the

speed limit 65.00

(4) from twenty-one up to

and including twenty-five

miles an hour

over the speed limit 100.00

(5) from twenty-six up to

and including thirty

miles an hour over the

speed limit 125.00

(6) from thirty-one up to

and including thirty-five

miles an hour over the

speed limit 150.00

(7) more than thirty-five

miles an hour over the

speed limit 200.00

Unfastened safety belt 66-7-372 25.00

Child not in restraint device

or seat belt 66-7-369 25.00

Minimum speed 66-7-305 10.00

Speeding 66-7-306 15.00

Improper starting 66-7-324 10.00

Improper backing 66-7-354 10.00

Improper lane 66-7-308 10.00

Improper lane 66-7-313 10.00

Improper lane 66-7-316 10.00

Improper lane 66-7-317 10.00

Improper lane 66-7-319 10.00

Improper passing 66-7-309 through 66-7-312 10.00

Improper passing 66-7-315 10.00

Controlled access

violation 66-7-320 10.00

Controlled access

violation 66-7-321 10.00

Improper turning 66-7-322 10.00

Improper turning 66-7-323 10.00

Improper turning 66-7-325 10.00

Following too closely 66-7-318 10.00

Failure to yield 66-7-328 through 66-7-331 10.00

Failure to yield 66-7-332 50.00

Failure to yield 66-7-332.1 25.00

Pedestrian violation 66-7-333 10.00

Pedestrian violation 66-7-340 10.00

Failure to stop 66-7-342 and 66-7-344

through 66-7-346 10.00

Railroad-highway grade

crossing violation 66-7-341 and 66-7-343 150.00

Passing school bus 66-7-347 100.00

Failure to signal 66-7-325 through 66-7-327 10.00

Failure to secure load 66-7-407 100.00

Operation without oversize-

overweight permit 66-7-413 50.00

Transport of reducible

load with special

permit more than six miles

from a border crossing 66-7-413 100.00

Improper equipment 66-3-801

through 66-3-851 25.00

Improper equipment 66-3-901 20.00

Improper emergency

signal 66-3-853 through 66-3-857 10.00

Minor on motorcycle

without helmet 66-7-356 300.00

Operation interference 66-7-357 50.00

Littering 66-7-364 300.00

Improper parking 66-7-349 through 66-7-352

and 66-7-353 5.00

Improper parking 66-3-852 5.00

Failure to dim lights 66-3-831 10.00

Riding in or towing

occupied house trailer 66-7-366 5.00

Improper opening of doors 66-7-367 5.00

No slow-moving vehicle

emblem or flashing

amber light 66-3-887 5.00

Open container - first

violation 66-8-138 25.00

Texting while driving - [Section 1 of this

first violation 2014 act] 66-7-374 25.00

Texting while driving - [Section 1 of this

subsequent violation 2014 act] 66-7-374 50.00

Using a handheld mobile

communication device

while driving a

commercial motor Section 1 of this

vehicle 2016 act 25.00

Using a handheld mobile

communication device

while driving a

commercial motor

vehicle - subsequent Section 1 of this

violation 2016 act 50.00.

B. The term "penalty assessment misdemeanor" does not include a violation that has caused or contributed to the cause of an accident resulting in injury or death to a person.

C. When an alleged violator of a penalty assessment misdemeanor elects to accept a notice to appear in lieu of a notice of penalty assessment, a fine imposed upon later conviction shall not exceed the penalty assessment established for the particular penalty assessment misdemeanor and probation imposed upon a suspended or deferred sentence shall not exceed ninety days.

D. The penalty assessment for speeding in violation of Paragraph (4) of Subsection A of Section 66-7-301 NMSA 1978 is twice the penalty assessment established in Subsection A of this section for the equivalent miles per hour over the speed limit.

E. Upon a second conviction for operation without a permit for excessive size or weight pursuant to Section 66-7-413 NMSA 1978, the penalty assessment shall be two hundred fifty dollars ($250). Upon a third or subsequent conviction, the penalty assessment shall be five hundred dollars ($500).

F. Upon a second conviction for transport of a reducible load with a permit for excessive size or weight pursuant to Subsection N of Section 66-7-413 NMSA 1978 more than six miles from a port-of-entry facility on the border with Mexico, the penalty assessment shall be five hundred dollars ($500). Upon a third or subsequent conviction, the penalty assessment shall be one thousand dollars ($1,000)."

- 23 -