46th legislature - STATE OF NEW MEXICO - first session, 2003
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; CREATING A PRESUMPTION THAT A PERSON UNDER TWENTY-ONE IS INTOXICATED WITH A BLOOD OR BREATH ALCOHOL CONCENTRATION OF TWO ONE HUNDREDTHS; 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
[66-5-71] 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) [any] 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 [and] 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 [any] 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 [are] is either directly employed by or under lease to an
employer;
D. "employer" means [any] a person, including the
United States, a state [or] 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; [and]
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
[H.] 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. [A] "Serious traffic violation" does not
include a vehicle weight [and] 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.--[No] An employer
shall not knowingly allow, require, permit or authorize a
driver to drive a commercial motor vehicle during [any] a
period in which:
A. [in which] 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 [any] a state
or has been disqualified from driving a commercial motor
vehicle;
B. [in which] 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; [or]
C. [in which] the [employee] driver, the commercial
motor vehicle the [employee] 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. [No] 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. [No] 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. [No] 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 [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.
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.
[H.] 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.
[I.] J. For purposes of this section, the term
"convicted" includes a license revocation pursuant to the
Implied Consent Act or [the] 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 dollars ($1,000)] one thousand one
hundred dollars ($1,100) or more than [two thousand five
hundred dollars ($2,500)] 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 five hundred
dollars ($2,500)] two thousand seven hundred fifty dollars
($2,750) or more than [ten thousand dollars ($10,000)] 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. [NEW MATERIAL] 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. [NEW MATERIAL] 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, indicating that a train is within one thousand five hundred feet of the railroad-highway grade crossing and approaching, although the train may not yet be within sight; 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. [NEW MATERIAL] 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 [in his blood or breath] 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; and
(3) a person less than twenty-one years of age who has an alcohol concentration in his blood or breath of two one hundredths or more to drive a vehicle within this state.
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. [Every] 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, [each] 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 [which]
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 if the person charged is twenty-one years of age or older;
B. four one hundredths or more if the person charged is driving a commercial motor vehicle; or
C. two one hundredths or more if the person charged is less than twenty-one years of age."
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 [five one-hundredths or] less than four one hundredths, it shall be
presumed that the person was not under the influence of
intoxicating liquor [or] if the person is at least twenty-one
years of age;
(2) an alcohol concentration of [more than
five one-hundredths] 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, [However] unless the person is driving a
commercial motor vehicle or is under twenty-one years of age;
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;
(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; or
(4) an alcohol concentration of two one hundredths or more and the person is under twenty-one years of age, it shall be presumed that the person is under the influence of intoxicating liquor.
C. [When the blood or breath of the person tested
contains an alcohol concentration of eight one-hundredths or
more] The arresting officer shall charge [him] 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 if the person is twenty-one years of age or older;
(2) four one hundredths or more if the person is driving a commercial motor vehicle; or
(3) two one hundredths or more if the person is less than twenty-one years of age.
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. A breath test machine certified by the scientific laboratory division of the department of health is presumed to measure the breath sample based on the grams of alcohol in two hundred ten liters of breath.
[F.] G. 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.] H. 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
[drug] 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 [in the person's blood or breath] 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
[an alcohol concentration of] two one hundredths or more [in
the person's blood or breath] 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 [in
the person's blood or breath] 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 [an alcohol concentration
of] two one hundredths or more [in the person's blood or
breath] 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 [no] 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. At the discretion of the department, the hearing may be conducted in person or telephonically.
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) [whether] the person refused to
submit to a test upon request of the law enforcement officer;
and
(b) [whether] 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) [whether] 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 [in the person's blood or breath] 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
[an alcohol concentration of] 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 [drug] 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 [either] 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 [an alcohol concentration of] 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 [this] Subsection F of this
section are not found by the department, the person's license
shall not be revoked.
[G.] 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.
[H.] 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 66-7-341 through 66-7-346 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, [no] a fine imposed upon later
conviction shall not exceed the penalty assessment established
for the particular penalty assessment misdemeanor and [no]
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.