AN ACT
RELATING TO MOTOR VEHICLES; CLARIFYING
RAILROAD-HIGHWAY GRADE CROSSING VIOLATIONS; CHANGING PROVISIONS APPLYING TO
COMMERCIAL DRIVER'S LICENSES; COMPLYING WITH FEDERAL LAW REGARDING
RAILROAD-HIGHWAY GRADE CROSSING VIOLATIONS AND PROHIBITED BLOOD OR BREATH ALCOHOL
CONCENTRATIONS FOR COMMERCIAL DRIVERS; REVISING FEES; AMENDING, REPEALING AND
ENACTING SECTIONS OF THE MOTOR VEHICLE CODE; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. Section 66-5-52 NMSA 1978 (being Laws 1989,
Chapter 14, Section 1, as amended) is amended to read:
"66-5-52. SHORT TITLE.--Sections 66-5-52 through
66-5-72 NMSA 1978 may be cited as the
"New Mexico Commercial Driver's License Act"."
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 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, which requires the motor vehicle to be
placarded under applicable law;
C. "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;
D.
"employer" means a person, including the United States, a
state and a political subdivision of a state or their agencies or
instrumentalities, who owns or leases a commercial motor vehicle or assigns
employees to operate such a vehicle;
E. "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;
F. "gross vehicle weight rating" means
the value specified by the manufacturer as the loaded weight of a single
vehicle;
G. "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;
H. "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 or rule pertaining to stopping
at or crossing a railroad-highway grade crossing; and
I. "serious traffic violation" means
conviction of any of the following if committed when operating a commercial
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; or
(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."
Section 3. Section 66-5-58 NMSA 1978 (being Laws 1989,
Chapter 14, Section 7, as amended) is amended to read:
"66-5-58. EMPLOYER RESPONSIBILITY.--An employer shall
not knowingly allow, require, permit or authorize a driver to drive a
commercial motor vehicle during a period in which:
A. the driver has a driver's license suspended,
revoked or canceled by a state, has lost the privilege to drive a commercial
motor vehicle in a state or has been disqualified from driving a commercial
motor vehicle;
B. the driver has more than one driver's license
as of the effective date of the provisions of the New Mexico Commercial
Driver's License Act;
C. the driver, the commercial motor vehicle the
driver is driving or the motor carrier operation of the employer is subject to
an out-of-service order; or
D. the driver has been convicted of a
railroad-highway grade crossing violation."
Section 4. Section 66-5-59 NMSA 1978 (being Laws 1989,
Chapter 14, Section 8) is amended to read:
"66-5-59. COMMERCIAL DRIVER'S LICENSE REQUIRED.--
A. A person may not drive a commercial motor
vehicle unless the person holds and is in immediate possession of a commercial
driver's license and applicable endorsements valid for the vehicle the person
is driving, except when driving under a commercial driver's instruction permit
and accompanied by the holder of a commercial driver's license valid for the
vehicle being driven.
B. A person may not drive a commercial motor
vehicle while the person's driving privilege is suspended, revoked or canceled
or while subject to a disqualification or in violation of an out-of-service
order.
C. A person who is a resident of this state for
at least thirty days may not drive a commercial motor vehicle under the
authority of a commercial driver's license issued by another jurisdiction.
D. A person may not drive a commercial motor
vehicle in violation of an out-of service order."
Section 5. 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 a period of not less than one year if
the person:
(1) refuses to submit to a chemical test when
requested pursuant to the provisions of the Implied Consent Act; or
(2) is convicted of a violation of:
(a) driving a commercial motor vehicle under the
influence of intoxicating liquor or drugs in violation of Section 66-5-68.1
NMSA 1978, 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; or
(c) using a commercial motor vehicle in the
commission of any felony.
B. 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 A of this section occur while
transporting a hazardous material required to be placarded.
C. 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 A of this section, or
any combination of those offenses, arising from two or more separate incidents,
but the secretary may issue regulations 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.
D. The
department shall disqualify a person from driving a commercial motor vehicle
for life if the person uses a commercial 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.
E. 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.
F. The department shall disqualify a person from
driving a commercial motor vehicle for a period of 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. The department shall disqualify a person from
driving a commercial motor vehicle for a period of 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.
G. 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 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.
H. The department shall disqualify a person from
driving a commercial motor vehicle:
(1) for a period of not less than sixty days if
the person is convicted of a first violation of a railroad-highway grade
crossing violation;
(2) for not less than 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) for not less than 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.
I. 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.
J. For purposes of this section, the term
"convicted" includes a license revocation pursuant to the Implied Consent
Act or an implied consent act of another state."
Section 6. Section 66-5-71 NMSA 1978 (being Laws 1998,
Chapter 17, Section 5, as amended) is amended to read:
"66-5-71. PENALTIES FOR VIOLATION OF OUT-OF-SERVICE
ORDERS.--
A. A driver who is convicted of violating an
out-of-service order shall be subject to a civil penalty of not less than one
thousand one hundred dollars ($1,100) or more than two thousand seven hundred
fifty dollars ($2,750), in addition to disqualification as provided in
Subsection C of this section.
B. An employer who is convicted of a violation
of Subsection C of Section 66-5-58 NMSA 1978 shall be subject to a civil
penalty of not less than two thousand seven hundred fifty dollars ($2,750) or
more than eleven thousand dollars ($11,000).
C. A driver who is convicted of violating an out‑of-service
order shall be disqualified for:
(1) not less than ninety days or more than one year if the driver
is convicted of a first violation of an out-of-service order;
(2) not less than one year or more than five years if, during any
ten-year period, the driver is convicted of two violations of out-of-service
orders in separate incidents; and
(3) not less than three years or more than five years if, during
any ten-year period, the driver is convicted of three or more violations of
out-of-service orders in separate incidents."
Section 7. A new section of the New Mexico Commercial
Driver's License Act, Section 66-5-72 NMSA 1978, is enacted to read:
"66-5-72. EMPLOYER PENALTIES FOR RAILROAD-HIGHWAY GRADE
CROSSING VIOLATIONS.--An employer who is convicted of a violation of Subsection
D of Section 66-5-58 NMSA 1978 shall be subject to a civil penalty of not more
than ten thousand dollars ($10,000) for each violation."
Section 8. Section 66-7-341 NMSA 1978 (being Laws 1978,
Chapter 35, Section 445) is repealed and a new Section 66‑7‑341
NMSA 1978 is enacted to read:
"66-7-341. RAILROAD-HIGHWAY GRADE CROSSING
VIOLATIONS--ALL DRIVERS.--
A. A person driving a vehicle approaching a
railroad-highway grade crossing shall:
(1) obey traffic control devices, crossing gates
or barriers or the directions of an enforcement official at the crossing;
(2) stop not more than fifty feet and not less
than fifteen feet from the nearest rail of a crossing if:
(a) a train is moving through or blocking the
crossing;
(b) a train is plainly visible and approaching
the crossing within hazardous proximity to the crossing;
(c) the sound of a train's warning signal can be
heard; or
(d) a traffic control device, crossing gate,
barrier or light or an enforcement official signals the driver to stop; and
(3) proceed through the railroad-highway grade
crossing only if it is safe to completely pass through the entire
railroad-highway grade crossing without stopping.
B. A person shall not:
(1) drive a vehicle through, around or under a
crossing gate or barrier at a railroad-highway grade crossing while the gate or
barrier is closed or being opened or closed;
(2) drive onto the railroad-highway grade
crossing and stop; or
(3) enter a crossing if the vehicle being driven
has insufficient undercarriage clearance to pass over the crossing.
C. The penalty assessment for violation of this
section is included in Section 66-8-116 NMSA 1978."
Section 9. Section 66-7-343 NMSA 1978 (being Laws 1978,
Chapter 35, Section 447) is repealed and a new Section 66‑7‑343
NMSA 1978 is enacted to read:
"66-7-343. RAILROAD-HIGHWAY GRADE CROSSING
VIOLATIONS--CERTAIN VEHICLES REQUIRED TO ALWAYS STOP--EXCEPTIONS.--
A. Except as set forth in Subsection D of this
section, a driver of a vehicle carrying passengers for hire, a school bus
carrying school children or a vehicle carrying hazardous materials, radioactive
or explosive substances or flammable liquids as cargo or as part of its cargo,
before entering a railroad-highway grade crossing, is required to stop no more
than fifty feet and no less than fifteen feet from the nearest rail of the
railroad.
B. While stopped, the driver shall:
(1) look and listen in both directions along the
track for an approaching train and for signals indicating that a train is
approaching;
(2) determine it is safe to proceed completely
through the railroad-highway grade crossing before entering it; and
(3) set the vehicle in a gear sufficiently low
that gears will not need to be shifted before exiting the railroad-highway
grade crossing.
C. A driver shall not shift gears while in a
railroad-highway grade crossing.
D. A driver of a vehicle carrying passengers for
hire, a school bus carrying school children or a vehicle carrying hazardous
materials, radioactive or explosive substances or flammable liquids as cargo or
as part of its cargo is not required to stop at:
(1) a railroad-highway grade crossing where a
police officer directs traffic to proceed;
(2) a railroad-highway grade crossing where a
stop-and-go traffic light controls movement of traffic;
(3) a railroad-highway grade crossing used
exclusively for industrial switching purposes, within a business district as
defined in Section 66-1-4.2 NMSA 1978;
(4) a railroad-highway grade crossing where use
of the railroad has been abandoned and there is a sign indicating that the
railroad has been abandoned; or
(5) an industrial or spur line railroad-highway
grade crossing marked with a sign reading "exempt crossing" that has
been designated as exempt by appropriate state or local authorities.
E. Penalties for violation of this section are
included in Section 66-8-116 NMSA 1978."
Section 10. Section 66-8-102 NMSA 1978 (being Laws 1953,
Chapter 139, Section 54, as amended) is amended to read:
"66-8-102. PERSONS UNDER THE INFLUENCE OF INTOXICATING
LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING
LIQUOR OR DRUGS--PENALTY.--
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 him incapable of safely driving
a vehicle to drive a vehicle within this state.
C. It is unlawful for:
(1) a person twenty-one years of age or more who
has an alcohol concentration in his blood or breath of eight one hundredths or
more to drive a vehicle within this state; and
(2) a person who has an alcohol concentration in
his blood or breath of four one hundredths or more to drive a commercial motor
vehicle.
D. Aggravated driving while under the influence
of intoxicating liquor or drugs consists of a person who:
(1) has an alcohol concentration of sixteen one
hundredths or more in his blood or breath while driving a vehicle within this
state;
(2) has caused 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) refused 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, was under the
influence of intoxicating liquor or drugs.
E. A person under first conviction pursuant to
this section shall be punished, notwithstanding the provisions of Section
31-18-13 NMSA 1978, by imprisonment for not more than ninety days or by a fine
of not more than five hundred dollars ($500), or both; provided that if the
sentence is suspended in whole or in part or deferred, the period of probation
may extend beyond ninety days but shall not exceed one year. Upon a first conviction pursuant to this
section, an offender may be sentenced to not less than forty-eight hours of
community service or 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 H 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 while
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, 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 while 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 seventy-two consecutive hours,
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 while 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 and a fine of
seven hundred fifty dollars ($750). In
addition to those penalties, when an offender commits aggravated driving while
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 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 or subsequent conviction
pursuant to this section, an offender is guilty of a fourth degree felony, as
provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term
of not less than six months, which shall not be suspended or deferred or taken
under advisement.
H. 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 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.
I. Upon a first conviction for aggravated
driving while under the influence of intoxicating liquor or drugs pursuant to
the provisions of Subsection D of this section,
as a condition of probation, an
offender shall be required to have an ignition interlock device installed and
operating for a period of one year on all motor vehicles driven by the
offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to
be indigent, the offender shall pay all costs associated with having an
ignition interlock device installed on the appropriate motor vehicles. If an offender drives a motor vehicle that
does not have an ignition interlock device installed on the motor vehicle, the
offender may be in violation of the terms and conditions of his probation.
J. Upon a first conviction for driving while
under the influence of intoxicating liquor or drugs pursuant to the provisions
of Subsection A, B or C of this section, as a condition of probation, an
offender may be required to have an ignition interlock device installed and
operating for a period of one year on all motor vehicles driven by the
offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to
be indigent, the offender shall pay all costs associated with having an
ignition interlock device installed on the appropriate motor vehicles. If an offender drives a motor vehicle that
does not have an ignition interlock device installed on the motor vehicle, the
offender may be in violation of the terms and conditions of his probation.
K. Upon any subsequent conviction pursuant to
this section, as a condition of probation, a subsequent offender shall be
required to have an ignition interlock device installed and operating for a
period of at least one year on all motor vehicles driven by the subsequent
offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to
be indigent, the subsequent offender shall pay all costs associated with having
an ignition interlock device installed on the appropriate motor vehicles. If a subsequent offender drives a motor
vehicle that does not have an ignition interlock device installed on the motor
vehicle, the subsequent offender may be in violation of the terms and
conditions of his probation.
L. 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.
M. 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 that is equivalent to New Mexico law for
driving while under the influence of intoxicating liquor or drugs, and that
prescribes penalties for driving while 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.
N. 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.
O. 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) "conviction" means an adjudication
of guilt and does not include imposition of a sentence."
Section 11. Section 66-8-102.1 NMSA 1978 (being Laws
1982, Chapter 102, Section 2, as amended) is amended to read:
"66-8-102.1. GUILTY PLEAS--LIMITATIONS.--Where the
complaint or information alleges a violation of Section
66-8-102 NMSA 1978, any plea of guilty
thereafter entered in satisfaction of the charges shall include at least a plea
of guilty to the violation of one of the subsections of Section 66-8-102 NMSA
1978, and no other disposition by plea of guilty to any other charge in
satisfaction of the charge shall be authorized if the results of a test
performed pursuant to the Implied Consent Act disclose that the blood or breath
of the person charged contains an alcohol concentration of:
A. eight one hundredths or more; or
B. four one hundredths or more if the person
charged is driving a commercial motor vehicle."
Section 12. Section 66-8-110 NMSA 1978 (being Laws 1978,
Chapter 35, Section 518, as amended) is amended to read:
"66-8-110. USE OF TESTS IN CRIMINAL ACTIONS OR CIVIL
ACTIONS--LEVELS OF INTOXICATION--MANDATORY CHARGING.--
A. The results of a test performed pursuant to
the Implied Consent Act may be introduced into evidence in any civil action or
criminal action arising out of the acts alleged to have been committed by the
person tested for driving a motor vehicle while under the influence of
intoxicating liquor or drugs.
B. When the blood or breath of the person tested
contains:
(1) an alcohol concentration of less than four
one hundredths, it shall be presumed that the person was not under the
influence of intoxicating liquor;
(2) an alcohol concentration of at least four one
hundredths but less than eight one hundredths:
(a) no presumption shall be made that the person
either was or was not under the influence of intoxicating liquor, unless the
person is driving a commercial motor vehicle; and
(b) the amount of alcohol in the person's blood
may be considered with other competent evidence in determining whether the
person was under the influence of intoxicating liquor; or
(3) an alcohol concentration of four one
hundredths or more and the person is driving a commercial vehicle, it shall be
presumed that the person is under the influence of intoxicating liquor.
C. The arresting officer shall charge the person
tested with a violation of Section 66-8-102 NMSA 1978 when the blood or breath
of the person contains an alcohol concentration of:
(1) eight one hundredths or more; or
(2) four one hundredths or more if the person is
driving a commercial motor vehicle.
D. When a person is less than twenty-one years
of age and the blood or breath of the person contains an alcohol concentration
of two one hundredths or more, the person's driving privileges shall be revoked
pursuant to the provisions of the Implied Consent Act.
E. The determination of alcohol concentration
shall be based on the grams of alcohol in one hundred milliliters of blood or
the grams of alcohol in two hundred ten liters of breath.
F. The presumptions in Subsection B of this
section do not limit the introduction of other competent evidence concerning
whether the person was under the influence of intoxicating liquor.
G. If a person is convicted of driving a motor
vehicle while under the influence of intoxicating liquor, the trial judge shall
be required to inquire into the past driving record of the person before
sentence is entered in the matter."
Section 13. Section 66-8-111 NMSA 1978 (being Laws 1978,
Chapter 35, Section 519, as amended) is amended to read:
"66-8-111. REFUSAL TO SUBMIT TO CHEMICAL
TESTS--TESTING--GROUNDS FOR REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE.--
A. If a person under arrest for violation of an
offense enumerated in the Motor Vehicle Code refuses upon request of a law
enforcement officer to submit to chemical tests designated by the law
enforcement agency as provided in Section 66-8-107 NMSA 1978, none shall be
administered except when a municipal judge, magistrate or district judge issues
a search warrant authorizing chemical tests as provided in Section 66-8-107
NMSA 1978 upon his finding in a law enforcement officer's written affidavit
that there is probable cause to believe that the person has driven a motor
vehicle while under the influence of alcohol or a controlled substance, thereby
causing the death or great bodily injury of another person, or there is
probable cause to believe that the person has committed a felony while under
the influence of alcohol or a controlled substance and that chemical tests as
provided in Section 66-8-107 NMSA 1978 will produce material evidence in a
felony prosecution.
B. The department, upon receipt of a statement
signed under penalty of perjury from a law enforcement officer stating the
officer's reasonable grounds to believe the arrested person had been driving a
motor vehicle within this state while under the influence of intoxicating
liquor or drugs and that, upon his request, the person refused to submit to a
chemical test after being advised that failure to submit could result in
revocation of his privilege to drive, shall revoke the person's New Mexico
driver's license or any nonresident operating privilege for a period of one
year or until all conditions for license reinstatement are met, whichever is
later.
C. The department, upon receipt of a statement
signed under penalty of perjury from a law enforcement officer stating the
officer's reasonable grounds to believe the arrested person had been driving a
motor vehicle within this state while under the influence of intoxicating
liquor and that the person submitted to chemical testing pursuant to Section
66-8-107 NMSA 1978 and the test results indicated an alcohol concentration in
the person's blood or breath of eight one hundredths or more if the person is
twenty-one years of age or older, four one hundredths or more if the person is
driving a commercial motor vehicle or two one hundredths or more if the person
is less than twenty-one years of age, shall revoke the person's license or
permit to drive or his nonresident operating privilege for a period of:
(1) ninety days or until all conditions for
license reinstatement are met, whichever is later, if the person is twenty-one
years of age or older;
(2) six months or until all conditions for
license reinstatement are met, whichever is later, if the person is less than
twenty-one years of age and has not previously had his license revoked pursuant
to the provisions of this section, notwithstanding any provision of the Children's
Code; or
(3) one year or until all conditions for license
reinstatement are met, whichever is later, if the person has previously had his
license revoked pursuant to the provisions of this section, notwithstanding the
provisions of Paragraph (1) or (2) of this subsection or any provision of the
Children's Code.
D. The determination of alcohol concentration
shall be based on the grams of alcohol in one hundred milliliters of blood or
the grams of alcohol in two hundred ten liters of breath.
E. If the person subject to the revocation
provisions of this section is a resident or will become a resident within one
year and is without a license to operate a motor vehicle in this state, the
department shall deny the issuance of a license to him for the appropriate
period of time as provided in Subsections B and C of this section.
F. A statement signed by a law enforcement
officer, pursuant to the provisions of Subsection B or C of this section, shall
be sworn to by the officer or shall contain a declaration substantially to the
effect: "I hereby declare under
penalty of perjury that the information given in this statement is true and
correct to the best of my knowledge.".
A law enforcement officer who signs a statement, knowing that the
statement is untrue in any material issue or matter, is guilty of perjury as
provided in Section 66-5-38 NMSA 1978."
Section 14. Section 66-8-111.1 NMSA 1978 (being Laws
1984, Chapter 72, Section 7, as amended) is amended to read:
"66-8-111.1. LAW ENFORCEMENT OFFICER AGENT FOR
DEPARTMENT--WRITTEN NOTICE OF REVOCATION AND RIGHT TO HEARING.--On behalf of
the department, a law enforcement officer requesting a chemical test or
directing the administration of a chemical test pursuant to Section 66-8-107
NMSA 1978 shall serve immediate written notice of revocation and of right to a
hearing on a person who refuses to permit chemical testing or on a person who
submits to a chemical test the results of which indicate an alcohol concentration
in the person's blood or breath of eight one hundredths or more if the person
is twenty-one years of age or older, four one hundredths or more if the person
is driving a commercial motor vehicle or two one hundredths or more if the
person is less than twenty-one years of age.
Upon serving notice of revocation, the law enforcement officer shall
take the license or permit of the driver, if any, and issue a temporary license
valid for twenty days or, if the driver requests a hearing pursuant to Section
66-8-112 NMSA 1978, valid until the date the department issues the order
following that hearing; provided that a temporary license shall not be issued
to a driver without a valid license or permit.
The law enforcement officer shall send the person's driver's license to
the department along with the signed statement required pursuant to Section
66-8-111 NMSA 1978."
Section 15. Section 66-8-112 NMSA 1978 (being Laws 1978,
Chapter 35, Section 520, as amended) is amended to read:
"66-8-112. REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE‑‑NOTICE--EFFECTIVE
DATE--HEARING--HEARING COSTS--REVIEW.--
A. The effective date of revocation pursuant to
Section 66-8-111 NMSA 1978 is twenty days after notice of revocation or, if the
person whose driver's license or privilege to drive is being revoked or denied
requests a hearing pursuant to this section, the date that the department
issues the order following that hearing.
The date of notice of revocation is:
(1) the date the law enforcement officer serves
written notice of revocation and of right to a hearing pursuant to Section
66-8-111.1 NMSA 1978; or
(2) in the event the results of a chemical test
cannot be obtained immediately, the date notice of revocation is served by mail
by the department. This notice of
revocation and of right to a hearing shall be sent by certified mail and shall
be deemed to have been served on the date borne by the return receipt showing
delivery, refusal of the addressee to accept delivery or attempted delivery of
the notice at the address obtained by the arresting law enforcement officer or
on file with the department.
B. Within ten days after receipt of notice of
revocation pursuant to Subsection A of this section, a person whose license or
privilege to drive is revoked or denied or the person's agent may request a
hearing. The hearing request shall be
made in writing and shall be accompanied by a payment of twenty-five dollars
($25.00) or a sworn statement of indigency on a form provided by the
department. A standard for indigency
shall be established pursuant to regulations adopted by the department. Failure to request a hearing within ten days
shall result in forfeiture of the person's right to a hearing. Any person less than eighteen years of age
who fails to request a hearing within ten days shall have notice of revocation
sent to his parent, guardian or custodian by the department. A date for the hearing shall be set by the
department, if practical, within thirty days after receipt of notice of
revocation. The hearing shall be held in
the county in which the offense for which the person was arrested took place.
C. The department may postpone or continue any
hearing on its own motion or upon application from the person and for good
cause shown for a period not to exceed ninety days from the date of notice of
revocation and provided that the department extends the validity of the
temporary license for the period of the postponement or continuation.
D. At the hearing, the department or its agent
may administer oaths and may issue subpoenas for the attendance of witnesses
and the production of relevant books and papers.
E. The hearing shall be limited to the issues:
(1) whether the law enforcement officer had
reasonable grounds to believe that the person had been driving a motor vehicle
within this state while under the influence of intoxicating liquor or drugs;
(2) whether the person was arrested;
(3) whether this hearing is held no later than
ninety days after notice of revocation; and either
(4) whether:
(a) the person refused to submit to a test upon
request of the law enforcement officer; and
(b) the law enforcement officer advised that the
failure to submit to a test could result in revocation of the person's
privilege to drive; or
(5) whether:
(a) the chemical test was administered pursuant
to the provisions of the Implied Consent Act; and
(b) the test results indicated an alcohol
concentration in the person's blood or breath of eight one hundredths or more
if the person is twenty-one years of age or older, four one hundredths or more
if the person is driving a commercial motor vehicle or two one hundredths or
more in the person's blood or breath if the person is less than twenty-one
years of age.
F. The department shall enter an order
sustaining the revocation or denial of the person's license or privilege to
drive if the department finds that:
(1) the law enforcement officer had reasonable
grounds to believe the driver was driving a motor vehicle while under the
influence of intoxicating liquor or drugs;
(2) the person was arrested;
(3) this hearing is held no later than ninety
days after notice of revocation; and
(4) either:
(a) the person refused to submit to the test upon
request of the law enforcement officer after the law enforcement officer
advised him that his failure to submit to the test could result in the
revocation of his privilege to drive; or
(b) that a chemical test was administered
pursuant to the provisions of the Implied Consent Act and the test results
indicated an alcohol concentration in the person's blood or breath of eight one
hundredths or more if the person is twenty-one years of age or older, four one
hundredths or more if the person is driving a commercial motor vehicle or two
one hundredths or more if the person is less than twenty-one years of age.
G. If one or more of the elements set forth in
Paragraphs (1) through (4) of Subsection F of this section are not found by the
department, the person's license shall not be revoked.
H. A person adversely affected by an order of
the department may seek review within thirty days in the district court in the
county in which the offense for which the person was arrested took place. The district court, upon thirty days' written
notice to the department, shall hear the case.
On review, it is for the court to determine only whether reasonable
grounds exist for revocation or denial of the person's license or privilege to
drive based on the record of the administrative proceeding.
I. Any person less than eighteen years of age
shall have results of his hearing forwarded by the department to his parent,
guardian or custodian."
Section 16. 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
Subsection D of this section, the listed penalty assessment is established:
COMMON NAME OF OFFENSE SECTION VIOLATED PENALTY
ASSESSMENT
Permitting unlicensed
minor to drive 66-5-40 $ 10.00
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 66-7-332 10.00
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 10.00
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
Improper equipment 66-3-801 10.00
Improper equipment 66-3-901 20.00
Improper emergency
signal 66-3-853
through 66-3-857 10.00
Operation interference 66-7-357 5.00
Littering 66-7-364 300.00
Improper parking 66-7-349 through 66-7-352
and 66-7-353 5.00
Improper parking 66-7-352.5 50.00
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.
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."
Section 17. EMERGENCY.--It is necessary for the public
peace, health and safety that this act take effect immediately.
HB 250
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