HB0300

HOUSE BILL 300

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Harry Garcia and Derrick J. Lente and Rodolpho "Rudy" S. Martinez and Joanne J. Ferrary

AN ACT

RELATING TO ALCOHOLIC BEVERAGE SALES; PROHIBITING SALES OF ALCOHOLIC BEVERAGES TO A PERSON WITH AN IGNITION INTERLOCK LICENSE OR A CERTAIN IDENTIFICATION CARD THAT INDICATES THAT THE PURCHASE OF ALCOHOLIC BEVERAGES IS PROHIBITED; PROVIDING PENALTIES.

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

SECTION 1. A new section of the Liquor Control Act is enacted to read:

"[NEW MATERIAL] SALES PROHIBITED TO PERSONS WITH CERTAIN FORMS OF IDENTIFICATION.--A licensee or a licensee's agent or employee shall not sell alcoholic beverages to a person who presents identification to the licensee or licensee's agent or employee that is an ignition interlock license issued pursuant to the Ignition Interlock Licensing Act or identification card issued pursuant to Section 66-5-401 or 66-5-404 NMSA 1978 that indicates that the person is prohibited from purchasing alcoholic beverages."

SECTION 2. Section 60-6C-1 NMSA 1978 (being Laws 1981, Chapter 39, Section 97, as amended) is amended to read:

"60-6C-1. GROUNDS FOR SUSPENSION, REVOCATION OR ADMINISTRATIVE FINE--REPORTING REQUIREMENT.--

A. The director may suspend or revoke the license or permit or fine the licensee in an amount not more than ten thousand dollars ($10,000), or both, when [he] the director finds that [any] a licensee has:

(1) violated [any] a provision of the Liquor Control Act or [any regulation] a rule or order promulgated pursuant to that act;

(2) been convicted of a felony pursuant to the provisions of the Criminal Code, the Liquor Control Act or federal law; or

(3) [permitted his] allowed the licensee's licensed premises to remain a public nuisance in the neighborhood where it is located after written notice from the director that investigation by the department has revealed that the establishment is a public nuisance in the neighborhood.

B. The director shall suspend or revoke the license or permit and may fine the licensee in an amount not to exceed ten thousand dollars ($10,000), or both, when [he] the director finds that [any] a licensee or:

(1) [his] the licensee's employee or agent knowingly has sold, served or given [any] an alcoholic beverage to a minor in violation of Section 60-7B-1 NMSA 1978, [or] to an intoxicated person in violation of Section 60-7A-16 NMSA 1978 or to a person with an ignition interlock license or identification card that indicates that the person is prohibited from purchasing alcoholic beverages in violation of Section 1 of this 2017 act, on two separate occasions within any twelve-month period; or

(2) [his] the licensee's agent has made any material false statement or concealed any material facts in [his] the licensee's application for the license or permit granted [him] the licensee pursuant to the provisions of the Liquor Control Act.

C. [Any] A licensee aggrieved by a revocation, suspension or fine proposed to be imposed by the director pursuant to this section shall be entitled to the hearing procedures set forth in Chapter 60, Article 6C NMSA 1978 before the revocation, suspension or fine shall be effective.

D. [Any] A charge filed against a licensee by the department and the resulting disposition of the charge shall be reported to the department of public safety and local law enforcement agencies whose jurisdictions include the licensed establishment.

E. For the purposes of this section:

(1) "ignition interlock license" means a license issued pursuant to the Ignition Interlock Licensing Act; and

(2) "identification card" means an identification card issued by the taxation and revenue department pursuant to Section 66-5-401 or 66-5-404 NMSA 1978."

SECTION 3. Section 60-6E-8 NMSA 1978 (being Laws 1999, Chapter 277, Section 9) is amended to read:

"60-6E-8. SERVER PERMIT--SUSPENSION--REVOCATION--ADMINISTRATIVE FINES--PENALTIES.--

A. In addition to any other penalties available, [the following penalties may be imposed] for sales to [minors or intoxicated persons] a minor, an intoxicated person or a person with an ignition interlock license or identification card that indicates that the person is prohibited from purchasing alcoholic beverages in violation of the provisions of the Liquor Control Act or rules [of] promulgated by the division, [A.] the director:

(1) may suspend a server's server permit for a period of thirty days or fine the server in an amount not to exceed five hundred dollars ($500), or both, when [he] the director finds that the server is guilty of a first offense of selling, serving or dispensing an alcoholic beverage to an intoxicated person in violation of Section 60-7A-16 NMSA 1978 [or], to a minor in violation of Section 60-7B-1 NMSA 1978 or to a person with an ignition interlock license or identification card that indicates that the person is prohibited from purchasing alcoholic beverages in violation of Section 1 of this 2017 act;

[B. the director] (2) shall suspend a server's server permit for a period of one year when [he] the director finds that the server is guilty of a second offense of selling, serving or dispensing an alcoholic [beverages to intoxicated persons] beverage to an intoxicated person in violation of Section 60-7A-16 NMSA 1978 [or], to [minors] a minor in violation of Section 60-7B-1 NMSA 1978 or to a person with an ignition interlock license or identification card that indicates that the person is prohibited from purchasing alcoholic beverages in violation of Section 1 of this 2017 act arising separately from the incident giving rise to [his] the server's first offense; and

[C. the director] (3) shall permanently revoke a server's server permit when [he] the director finds that the server is guilty of a third offense of selling, serving or dispensing an alcoholic [beverages to intoxicated persons] beverage to an intoxicated person in violation of Section 60-7A-16 NMSA 1978 [or], to [minors] a minor in violation of Section 60-7B-1 NMSA 1978 or to a person with an ignition interlock license or identification card that indicates that the person is prohibited from purchasing an alcoholic beverage in violation of Section 1 of this 2017 act arising separately from the incidents giving rise to [his] the server's first and second offenses.

[D. no] B. A person whose server permit is suspended or revoked pursuant to the provisions of this section [may] shall not be a server of alcoholic beverages on a licensed premises during the period of suspension or revocation.

[E. no] C. A person whose server permit is suspended [may] shall not serve alcoholic beverages on or after the date of suspension unless the person obtains a new server permit in accordance with the provisions of [Article 6D of] Chapter 60, Article 6E NMSA 1978.

[F.] D. Nothing in [this] the Alcohol Server Education Article of the Liquor Control Act shall be interpreted to waive [any] a license holder's liability that may arise pursuant to the provisions of [this] the Liquor Control Act.

E. For the purposes of this section:

(1) "ignition interlock license" means a license issued pursuant to the Ignition Interlock Licensing Act; and

(2) "identification card" means an identification card issued by the taxation and revenue department pursuant to Section 66-5-401 or 66-5-404 NMSA 1978."

SECTION 4. Section 66-5-405 NMSA 1978 (being Laws 1978, Chapter 35, Section 332, as amended) is amended to read:

"66-5-405. CONTENTS OF CARD.--

A. An identification card shall bear the applicant's full legal name; date of birth; sex; current New Mexico residence address; full-face or front-view digital photograph of the identification card holder; a unique identification card number; a date of issuance; an expiration date; a brief description of the identification card holder and the signature of the holder, and the identification card shall 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. All identification cards issued to a person who is a first offender or a subsequent offender as defined in the Motor Vehicle Code shall have a printed legend that indicates that the person is prohibited from purchasing alcoholic beverages, as provided in Section 66-5-405 NMSA 1978. An identification card issued to a:

(1) first offender shall include the required printed legend for a period of one year from the date of issuance;

(2) subsequent offender who has been adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or drugs only two times shall include the required printed legend for a period of two years from the date the card is first issued to the person following the second adjudication;

(3) subsequent offender who has been adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or drugs only three times shall include the required printed legend for a period of three years from the date the card is first issued to the person following the third adjudication; and

(4) subsequent offender who has been adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or drugs four or more times shall include the required printed legend from the date the card is first issued for the remainder of the person's natural life.

B. An identification card not intended to be accepted by federal agencies for official federal purposes shall bear the 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. NOT FOR FEDERAL PURPOSES.".

C. An identification card that meets federal requirements to be accepted by federal agencies for official federal purposes shall be distinguishable in color or design from an identification card not intended to be accepted by federal agencies for official federal purposes and shall bear the statement:

"STATE OF NEW MEXICO IDENTIFICATION

CARD NO.____________________

This card is provided 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.".

D. An identification card that meets federal requirements to be accepted by federal agencies for official federal purposes issued to a foreign national with lawful status who fails to prove that the foreign national's lawful status will not expire prior to the date on which the identification card applied for would expire but for the person being a foreign national shall clearly indicate on its face and in the machine readable zone that it is temporary and shall bear the word "TEMPORARY".

E. Five years from the date of issuance of an identification card to a subsequent offender who has been adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or drugs four or more times, and every five years thereafter, that person may apply to a district court to allow issuance of a card without the printed legend on the person's identification card that indicates that the person is prohibited from purchasing alcoholic beverages. The court may, for good cause shown, order the issuance of an identification card without the printed legend to the person; provided that the person has not been subsequently adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or drugs and otherwise qualifies for issuance of the card."

SECTION 5. Section 66-5-501 NMSA 1978 (being Laws 2003, Chapter 239, Section 1) is amended to read:

"66-5-501. SHORT TITLE.--Sections [1 through 4 of this act] 66-5-501 through 66-5-504 NMSA 1978 may be cited as the "Ignition Interlock Licensing Act"."

SECTION 6. Section 66-5-502 NMSA 1978 (being Laws 2003, Chapter 239, Section 2, as amended) is amended to read:

"66-5-502. DEFINITIONS.--As used in the Ignition Interlock Licensing Act:

A. "denied" means the division has refused to issue an instruction permit, driver's license or provisional license pursuant to the provisions of Subsection D or E of Section 66-5-5 NMSA 1978;

B. "ignition interlock device" means a device, approved by the traffic safety bureau, that prevents the operation of a motor vehicle by an intoxicated or impaired person;

C. "ignition interlock license" means a driver's license issued to a person by the division that allows that person to operate a motor vehicle with an ignition interlock device after that person's driving privilege or driver's license has been revoked or denied. The division shall clearly mark an ignition interlock license to distinguish it from other driver's licenses and to provide that the license holder is prohibited from purchasing alcoholic beverages; and

D. "revoked" means the division, pursuant to the provisions of Section 66-5-29 or 66-8-111 NMSA 1978, has terminated a person's driving privilege or driver's license for:

(1) driving while under the influence of intoxicating liquor or drugs; or

(2) a conviction of homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or drugs."

SECTION 7. Section 66-5-503 NMSA 1978 (being Laws 2003, Chapter 239, Section 3, as amended) is amended to read:

"66-5-503. IGNITION INTERLOCK LICENSE--REQUIREMENTS.--

A. A person whose driving privilege or driver's license has been revoked or denied or who has not met the ignition interlock license requirement as a condition of reinstatement pursuant to Section 66-5-33.1 NMSA 1978 may apply for an ignition interlock license from the division.

B. An applicant for an ignition interlock license shall:

(1) provide proof of installation of the ignition interlock device by a traffic safety bureau-approved ignition interlock installer on any vehicle the applicant drives; and

(2) sign an affidavit acknowledging that:

(a) operation by the applicant of any vehicle that is not equipped with an ignition interlock device is subject to penalties for driving with a revoked license;

(b) tampering or interfering with the proper and intended operation of an ignition interlock device may subject the applicant to penalties for driving with a license that was revoked for driving under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act; and

(c) the applicant shall maintain the ignition interlock device and keep up-to-date records in the motor vehicle showing required service and calibrations and be able to provide the records upon request.

C. The division shall prohibit the purchase of alcoholic beverages by a person to whom an ignition interlock license is issued.

D. An ignition interlock license shall be clearly marked to distinguish it from other driver's licenses and shall include a printed legend that indicates that the licensed person is prohibited from purchasing alcoholic beverages. The legend shall be printed so that it is easily read by a person who inspects the license.

[C.] E. A person who has been convicted of homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or drugs, as provided in Section 66-8-101 NMSA 1978, shall not be issued an ignition interlock license unless the person has completed serving the sentence for that crime, including any period of probation and parole."

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

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

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

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 driving a vehicle to drive a vehicle within this state.

C. It is unlawful for:

(1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or

(2) a person to drive a commercial motor vehicle in this state if the person has an alcohol concentration of four one hundredths or more in the person's blood or breath within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.

D. Aggravated driving under the influence of intoxicating liquor or drugs consists of:

(1) driving a vehicle in this state with an alcohol concentration of sixteen one hundredths or more in the driver's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle;

(2) causing 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) refusing 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, the driver was under the influence of intoxicating liquor or drugs.

E. A 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. Upon a first conviction pursuant to this section, an offender shall be sentenced to not less than twenty-four hours of community service. In addition, the offender may be required to pay 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 L of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a "DWI school", approved by the bureau 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 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 or fails to comply with any other condition of probation, the offender shall be sentenced to not less than an additional forty-eight consecutive hours in jail. Any jail sentence imposed 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 under the influence of intoxicating liquor or drugs shall not be suspended, deferred or taken under advisement. 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.

F. A second or third 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 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, an offender shall be sentenced to a jail term of not less than ninety-six consecutive hours, not less than 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 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, not less than ninety-six hours of community service and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving 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 community service, 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 conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended, deferred or taken under advisement.

H. Upon a fifth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement.

I. Upon a sixth conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement.

J. Upon a seventh conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of three years, two years of which shall not be suspended, deferred or taken under advisement.

K. Upon an eighth or subsequent conviction pursuant to this section, an offender is guilty of a second degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of twelve years, ten years of which shall not be suspended, deferred or taken under advisement.

L. Upon any conviction 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 approved by the department of finance and administration and, if necessary, a treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

M. Upon a second or third conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court:

(1) not less than a twenty-eight-day inpatient, residential or in-custody substance abuse treatment program approved by the court;

(2) not less than a ninety-day outpatient treatment program approved by the court;

(3) a drug court program approved by the court; or

(4) any other substance abuse treatment program approved by the court.

The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

N. Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender in its custody. While the offender is on probation or parole under its supervision, the corrections department shall also provide substance abuse counseling and treatment to the offender or shall require the offender to obtain substance abuse counseling and treatment.

O. Upon a conviction pursuant to this section, an offender shall be required to:

(1) obtain an ignition interlock license that includes a printed legend that indicates that the offender is prohibited from purchasing alcoholic beverages; and

(2) have an ignition interlock device installed and operating on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau.

P. Unless determined by the bureau to be indigent, [the] an offender required pursuant to Subsection O of this section to have ignition interlock devices installed on motor vehicles driven by the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. The offender shall operate only those vehicles equipped with ignition interlock devices for:

(1) a period of one year, for a first offender;

(2) a period of two years, for a second conviction pursuant to this section;

(3) a period of three years, for a third conviction pursuant to this section; or

(4) the remainder of the offender's life, for a fourth or subsequent conviction pursuant to this section.

[P.] Q. Five years from the date of conviction and every five years thereafter, a fourth or subsequent offender may apply to a district court for removal of the ignition interlock device requirement provided in this section and for restoration of a driver's license. A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the license; provided that the offender has not been subsequently convicted of driving a motor vehicle under the influence of intoxicating liquor or drugs. Good cause may include an alcohol screening and proof from the interlock vendor that the person has not had violations of the interlock device.

[Q.] R. An offender who obtains an ignition interlock license and installs an ignition interlock device prior to conviction shall be given credit at sentencing for the time period the ignition interlock device has been in use.

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

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

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

[U.] V. With respect to this section and notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation.

[V.] W. 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) "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, which requires the motor vehicle to be placarded under applicable law."

SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.

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