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SPONSOR: |
Lundstrom |
DATE TYPED: |
2/19/03 |
HB |
415 |
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SHORT TITLE: |
Sale of Liquor to Repeat DWI Offenders |
SB |
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ANALYST: |
Chavez |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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See Narrative |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Administrative
Office of the Courts (AOC)
Public
Defenders (PD)
Department of Public Safety (DPS)
Alcohol
& Gaming Division (AGD)
Administrative
Office of the District Attorney’s (AODA)
LFC
Files
SUMMARY
Synopsis
of Bill
House Bill 415 enacts a new section of the
Liquor Control Act. It would prohibit
the retail sale of alcoholic beverages to persons, or purchase by persons,
convicted of a fourth or subsequent violation of driving while under the
influence of intoxicating liquor or drugs for a period of one year after the
completion of the jail term imposed for the conviction.
House Bill 415 requires a retailer, his employee
or agent to obtain from each purchaser identification in the form of a driver’s
license or identification card, and to determine, in a manner established by
MVD, if the person is restricted from the purchase of alcoholic beverages as a
result of multiple convictions for driving while under the influence of
intoxicating liquor or drugs.
Further, the bill would create a petty
misdemeanor for any individual who gives, loans, sells or delivers an
identification card to a person unable to purchase alcohol due to the statutory
restrict
tion. It
would also be a petty misdemeanor to purchase alcoholic beverages for an
individual so restricted by law.
In addition, the bill amends various sections of
the NMSA 1978. The amendments require
that licenses and identification cards have a magnetic code or other marking
determined by MVD in order to allow retailers to determine if the purchaser is
restricted from the purchase of alcoholic beverages as a result of multiple
convictions for driving while under the influence of intoxicating liquor or
drugs.
Further, the bill provides that if a person is
arrested for driving while under the influence of intoxicating liquor or drugs
and has been convicted three or more times previously, a condition for bail, if
authorized by the court, shall include the provision that the person shall not
purchase alcoholic beverages from a retailer.
Significant
Issues
The language in the bill provides that it is a violation of the Liquor Control Act for a licensed retailer to sell alcoholic beverages to a person who is prohibited from making purchases of alcoholic beverages. However, there are no penalty provisions in the bill for a violation by a licensed retailer.
A retailer is one type of approximately 25 types
of licenses defined under the Liquor Control Act. A retailer is defined as a person licensed under
the provisions of the Liquor Control Act selling, offering for sale or having
in his possession with the intent to sell alcoholic beverages in unbroken
packages for consumption and not for resale off the licensed premises. There are approximately 78 licensed
retailers in the State of New Mexico.
According to the Administrative Office of the
District Attorney’s (AODA), the bill appears to be somewhat duplicative with a
defendant’s probation where he/she would presumably not be able to consume
alcohol. However, the bill would
provide a further hurdle to a covered individual who decided to consume alcohol
despite conditions of probation or enrollment in alcohol abuse counseling or other
programs. The AODA suggested modifying
the prohibition to one year after the termination of all liability from the
commission of the DWI 4th offense including incarceration, probation,
and parole.
FISCAL IMPLICATIONS
There will be a
minimal administrative cost for statewide update, distribution, and documentation
of statutory changes.
According to the
Administrative Office of the Courts (AOC), any additional fiscal impact on the
judiciary would be proportional to the enforcement of this law and commenced
prosecutions.
ADMINISTRATIVE IMPLICATIONS
It is indeterminate
what the administrative implications would be to the MVD. The MVD by this proposed legislation is
mandated to establish a database and procedure for licensed retail liquor
distributors to determine if a person is prohibited from the retail purchase of
alcoholic beverages.
The Department of
Public Safety (DPS) indicates there are administrative implications upon passage
of the proposed legislation. Within the
law enforcement program, both the Special Investigations Division and the New
Mexico State Police Division have the authority to enforce the Liquor Control
Act, and each would play a significant role in the enforcement of the proposed
statutory language. The New Mexico
State Police would be required to enforce provisions of the proposed
legislation in the field, while the Special Investigations Division would be
responsible for enforcing the act on retailers who sell alcoholic beverages.
The Alcohol and Gaming
Division (AGD) indicates the administrative implications would be dependent
upon citations for violations of the proposed legislation that would be
forwarded to the Alcohol and Gaming Division for disposition.
CONFLICT, DUPLICATION, COMPANIONSHIP,
RELATIONSHIP
There are multiple
bills proposed in the current legislative session which involve driving, DWI
and related issues. It is possible that
this proposed legislation bears significant conflict, duplication,
companionship or relationship to many of those.
TECHNICAL ISSUES
It is noted by the AGD that Subsection E on page
3 provides that a person who purchases alcoholic beverages for a person
prohibited from making purchases is guilty of a petty misdemeanor. The AGD states this section should require
the person making the purchase to have knowledge that he/she is making
purchases of alcoholic beverages for those prohibited from making their own
purchases. Without knowledge, it
becomes a strict liability crime which could potentially not withstand legal
challenge.
The AODA suggests that the prohibition should be
extended to five years to better deter chronic DWI offenders.
OTHER SUBSTANTIVE ISSUES
Constitutional issues
were raised by DPS and the public defenders.
The public defenders are concerned that once the database is
established, it might open the floodgates to more intrusive “checks” on
innocent citizens and, in the hands of investigating officers, may eventually
and unduly infringe on the constitutional protections of the 4th
Amendment.
DPS states that because
of the prohibition of ex post facto laws, this legislation should not apply to
those individuals convicted of four or more DWI’s prior to the passage of the
proposed legislation.