2004 Committee Substitute for SB0174JUS

SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 174

46th legislature - STATE OF NEW MEXICO - second session, 2004

AN ACT

RELATING TO MOTOR VEHICLES; INCREASING OFF-HIGHWAY MOTOR VEHICLE REGISTRATION FEES; REQUIRING NONRESIDENT OFF-HIGHWAY MOTOR VEHICLE PERMITS; IMPOSING SAFETY REQUIREMENTS; CREATING THE OFF-HIGHWAY MOTOR VEHICLE SAFETY BOARD; CREATING THE TRAIL SAFETY FUND; PROVIDING PENALTIES; MAKING AN APPROPRIATION.

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

Section 1. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Off-Highway Motor Vehicle Act:

A. "board" means the off-highway motor vehicle safety board;

B. "fund" means the trail safety fund;

C. "off-highway motor vehicle" means a motor vehicle designed by the manufacturer for operation exclusively off the highway or road and includes:

(1) "all-terrain vehicle", which means a motor vehicle fifty inches or less in width, having an unladen dry weight of one thousand pounds or less, traveling on three or more low-pressure tires and having a seat designed to be straddled by the operator and handlebar-type steering control;

(2) "off-highway motorcycle", which means a motor vehicle traveling on not more than two tires and having a seat designed to be straddled by the operator and that has handlebar-type steering control; or

(3) "snowmobile", which means a motor vehicle designed for travel on snow or ice and steered and supported in whole or in part by skis, belts, cleats, runners or low-pressure tires; and

D. "staging area" means a parking lot, trailhead or other location to or from which an off-highway motor vehicle is transported so that it may be placed into operation or removed from operation."

Section 2. Section 66-3-1003 NMSA 1978 (being Laws 1978, Chapter 35, Section 199, as amended) is amended to read:

"66-3-1003. OFF-HIGHWAY MOTOR VEHICLES--REGISTRATION.-- [A.] Unless exempted from the provisions of the Off-Highway Motor Vehicle Act, no person shall operate [a] an off-highway motor vehicle [which is to be operated or used exclusively off the highways of this state] unless the off-highway motor vehicle has been registered in accordance with [the Off-Highway Motor Vehicle Act and the regulations of the division adopted pursuant to that act.

B. Application for registration and certificate of title shall be made as provided in Subsections A through C of Section 66-3-4 NMSA 1978. Upon receipt of an application for an original registration of the motor vehicle or for any certificate of title, the division shall make such examination of records and indexes as provided in Section 66-3-8 NMSA 1978, and registration indexes shall be kept and maintained for the motor vehicles in the manner provided in Section 66-3-9 NMSA 1978. The division shall issue evidence of registration and a certificate of title for the motor vehicles as provided in Section 66-3-10 NMSA 1978.

C. Upon receipt of the registration certificate, the owner of an off-highway motor vehicle shall affix the registration plate on the motor vehicle as prescribed by the regulations adopted by the division] Chapter 66, Article 3 NMSA 1978. The owner shall affix the registration plate or validating sticker as provided in Chapter 66, Article 3 NMSA 1978."

Section 3. Section 66-3-1004 NMSA 1978 (being Laws 1978, Chapter 35, Section 200, as amended) is amended to read:

"66-3-1004. REGISTRATION CERTIFICATE AND NONRESIDENT PERMIT FEES.--

A. The [fee] fees for [registration of] registering an off-highway motor vehicle [is fifteen dollars ($15.00)] are:

(1) seventeen dollars ($17.00) for each off-highway motor vehicle; and

(2) no more than forty dollars ($40.00) to be paid every two years at the time of registration for an off-highway user fee for each off-highway motor vehicle. The tourism department shall promulgate rules authorizing an off-highway user fee.

B. The registration certificate shall be good for two years after the [year] month in which the off-highway motor vehicle is registered. Each registration [must] certificate shall be renewed [every three years to be valid] every two years.

[B.] C. Upon a change of ownership, the new owner [must] shall make application and pay [a] registration [fee] fees of [fifteen dollars ($15.00)]:

(1) seventeen dollars ($17.00) in the same manner as provided by [regulations] rules of the division for original registration; and

D. The fees for a nonresident permit of an off-highway motor vehicle for a nonresident of the state are:

(1) seventeen dollars ($17.00) for each off-highway motor vehicle that has not already been registered in another state; and

(2) no more than forty dollars ($40.00) to be paid every two years at the time of registration for an off-highway user fee for each off-highway motor vehicle that is not currently in compliance with a similar off-highway fee law or rule in another state; or

(3) seventeen dollars ($17.00) for a ninety-day permit for both the off-highway motor vehicle, not otherwise registered, and the highway user fee.

[C.] E. Duplicate [certificates of] registration certificates and nonresident permits shall be issued upon payment of a [one dollar ($1.00)] seven-dollar-fifty-cent ($7.50) fee.

F. The tourism department shall impose a one-dollar ($1.00) fee on registration certificates and nonresident permits for the New Mexico clean and beautiful program.

G. Fees collected pursuant to this section shall be distributed as follows:

(1) of each seventeen dollars ($17.00) collected pursuant to Paragraph (1) of Subsection A, Paragraph (1) of Subsection C or Paragraph (1) of Subsection D of this section, two dollars ($2.00) shall be distributed to the division and fifteen dollars ($15.00) shall be distributed pursuant to Section 66-6-23 NMSA 1978;

(2) each forty dollars ($40.00) collected pursuant to Paragraph (2) of Subsection A, or Paragraph (1) of Subsection D, Paragraph (2) of Subsection C or Paragraph (2) of Subsection D of this section shall be distributed to the fund;

(3) each seven dollars fifty cents ($7.50) collected pursuant to Subsection E of this section shall be distributed to the division; and

(4) of each seventeen dollars ($17.00) collected pursuant to Paragraph (3) of Subsection D of this section, two dollars ($2.00) shall be distributed to the division and fifteen dollars ($15.00) shall be distributed to the fund.

H. The tourism department, in conjunction with the division, may establish and maintain sites to collect fees and issue permits for nonresidents."

Section 4. Section 66-3-1005 NMSA 1978 (being Laws 1978, Chapter 35, Section 201, as amended) is amended to read:

"66-3-1005. EXEMPTIONS.--The provisions of the Off-Highway Motor Vehicle Act shall not apply to off-highway motor vehicles that are:

A. owned and operated by [any] an agency or department of the United States, this state or [any] a political subdivision of this state;

B. operated exclusively on lands privately held by the off-highway motor vehicle owner; provided that the appropriate tax or fee has been paid in lieu of the motor vehicle excise tax and registration fees;

C. [owned by nonresidents of this state; provided that the use] used in this state [shall be for competition purposes only and] only for organized and endorsed competition purposes; [shall not exceed fifteen days and] provided [further] that the use is not on a rental basis;

D. brought into this state by manufacturers or distributors for wholesale purposes and not used for demonstrations;

E. [which are] in the possession of dealers as stock in trade and not used for demonstration purposes; [or]

F. [which are] farm tractors as defined in Section 66-1-4.6 NMSA 1978, special mobile equipment as defined in Section [66-1-4] 66-1-4.16 NMSA 1978 or off-highway motor vehicles while being used for agricultural operations; or

G. used exclusively on private closed courses, whether owned by the rider or another, provided that, if applicable, the excise tax and registration fee has been paid and is current."

Section 5. Section 66-3-1006 NMSA 1978 (being Laws 1978, Chapter 35, Section 202, as amended) is amended to read:

"66-3-1006. GROUNDS FOR REFUSING REGISTRATION OR CERTIFICATE OF TITLE.--The division may refuse registration or issuance of a certificate of title or any transfer of a registration certificate upon the grounds that:

A. the division has reasonable grounds to believe that the application contains any false or fraudulent statement or that the applicant has failed to furnish the required information or reasonable additional information requested by the division or that the applicant is not entitled to the issuance of a certificate of title or registration certificate of the off-highway motor vehicle under the Motor Vehicle Code or laws of this state;

B. the division has reasonable [ground] grounds to believe that the off-highway motor vehicle is [a] stolen or embezzled [vehicle] or that the granting of a registration certificate or the issuance of a certificate of title would constitute a fraud against the rightful owner or other person having a valid lien upon the off-highway motor vehicle;

C. the division has reasonable grounds to believe that a nonresident applicant is not entitled to registration issuance under the laws of the nonresident applicant's state of residence;

[C.] D. the required [fee has] fees have not been paid; or

[D.] E. the motor vehicle excise tax has not been paid pursuant to Section 66-3-1005 NMSA 1978."

Section 6. Section 66-3-1007 NMSA 1978 (being Laws 1978, Chapter 35, Section 203, as amended) is amended to read:

"66-3-1007. [EVIDENTIAL] EVIDENTIARY VALUE OF CERTIFICATE.--A certificate of title issued by the division for [a] an off-highway motor vehicle shall be received [in evidence] as prima facie evidence of the ownership of the off-highway motor vehicle named in the certificate and as prima facie evidence of all liens and encumbrances against the off-highway motor vehicle appearing on the certificate."

Section 7. Section 66-3-1008 NMSA 1978 (being Laws 1978, Chapter 35, Section 204, as amended) is amended to read:

"66-3-1008. REGISTRATION PLATES TO BE FURNISHED BY DIVISION.--The division, upon registering [a] an off-highway motor vehicle, shall issue to the owner registration plates or [validation] validating stickers, as provided in Section 66-3-14 NMSA 1978."

Section 8. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] OFF-HIGHWAY MOTOR VEHICLE SAFETY TRAINING ORGANIZATION--LICENSE.--A. The division shall issue a license to an off-highway motor vehicle safety training organization when the division is satisfied that the organization:

(1) maintains an established place of business open to the public;

(2) has the proper equipment necessary to give instruction in the operation of the class of off-highway motor vehicles for which a course is designed; and

(3) has been approved and certified by the board.

B. The license shall be valid for a period of one year from midnight of the last day of the month of issuance of the license, unless canceled, suspended or revoked by the division.

C. The license shall be renewed annually. For renewal of the license, the division shall require that the off-highway motor vehicle safety training organization satisfy all requirements of the initial licensure."

Section 9. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] OPERATION AND EQUIPMENT--SAFETY REQUIREMENTS.--

A. A driver shall not operate an off-highway motor vehicle:

(1) in a careless, reckless or negligent manner so as to endanger the person or property of another;

(2) while under the influence of intoxicating beverages or narcotic or other drugs to a degree that renders the driver incapable of reasonable operation, as provided by Section 66-8-102 NMSA 1978;

(3) unless it is equipped with a United States forest service-approved spark arrester; provided that a snowmobile is exempt from this provision;

(4) when conditions such as darkness limit visibility to five hundred feet or less, unless the off-highway motor vehicle is equipped with:

(a) one or more headlights of sufficient candlepower to light objects at a distance of one hundred fifty feet; and

(b) at least one taillight of sufficient intensity to exhibit a red or amber light at a distance of two hundred feet under normal atmospheric conditions;

(5) unless it is equipped in such a way so that the noise produced by the off-highway motor vehicle does not exceed ninety-six decibels when measured using test procedures established by the society of automotive engineers pursuant to standard J-1287;

(6) in pursuit of, with intent to hunt, any species of animal or bird protected by law unless otherwise authorized by the state game commission; or

(7) unless in possession of the person's certificate of registration or nonresident permit.

B. An off-highway motor vehicle may not be sold or offered for sale unless it is:

(1) equipped in such a way so that the noise produced by the off-highway motor vehicle does not exceed ninety-six decibels when measured using test procedures established by the society of automotive engineers pursuant to standard J-1287; or

(2) sold or offered for sale only for organized competition.

C. A person under the age of eighteen shall not operate or ride upon an off-highway motor vehicle unless the person is wearing eye protection and a safety helmet that is securely fastened in a normal manner as headgear and that meets the standards specified by the board. The board shall adopt rules establishing standards covering the specifications of eye protection and safety helmets.

D. A person under the age of ten may operate an all-terrain vehicle if he is visually supervised at all times by a parent, legal guardian or certified instructor of a safety training course certified by the board. A person under the age of eighteen shall obtain an off-highway motor vehicle safety permit from the division, for which the person must have parental permission. The safety permit shall be in the person's possession when operating an off-highway motor vehicle and shall be obtained only when the person successfully completes a training course certified by the board.

E. A person who is at least ten years of age but under the age of eighteen years shall not operate an all-terrain vehicle unless the person is visually supervised at all times by a parent or legal guardian or the person is visually supervised at all times by a person over the age of eighteen who has a valid driver's license.

F. A person under the age of eighteen may operate an all-terrain vehicle without visual supervision if the person is:

(1) over the age of fifteen and has a valid driver's license and off-highway motor vehicle safety permit;

(2) over the age of twelve and has a valid motorcycle license and off-highway motor vehicle safety permit; or

(3) part of an organized tour under the guidance or direction of a guide certified by the board.

G. A person shall not operate an off-highway motor vehicle while carrying a passenger unless the vehicle is specifically designed by the manufacturer to carry a passenger.

H. A person shall not operate an off-highway motor vehicle in excess of ten miles per hour within two hundred feet of a business, animal shelter, horseback rider, bicyclist, pedestrian or occupied dwelling. A person operating an off-highway motor vehicle on a closed course or track for competitive use or practice is exempt from the provisions of this subsection."

Section 10. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] REQUIREMENTS OF DEALERS TO DISTRIBUTE SAFETY INFORMATION.--A dealer selling off-highway motor vehicles shall distribute information recommended by the board to off-highway motor vehicle purchasers on state laws, safety requirements, training programs, operating characteristics and potential risk of injury associated with off-highway motor vehicles."

Section 11. Section 66-3-1011 NMSA 1978 (being Laws 1975, Chapter 240, Section 11, as amended) is amended to read: "66-3-1011. OPERATION ON STREETS OR HIGHWAYS.--

A. [No] A person shall not operate an off-highway motor vehicle on any limited access highway or freeway at any time.

B. A person shall not operate off-highway motor vehicles on state game commission-owned, -controlled or

-administered land except as specifically permitted pursuant to Chapter 17, Article 6 NMSA 1978.

C. A person shall not operate an off-highway motor vehicle on land owned, controlled or administered by the state parks division of the energy, minerals and natural resources department as prohibited pursuant to Chapter 16, Article 2 NMSA 1978.

[B.] D. Off-highway motor vehicles may cross streets or highways, except limited access highways or freeways, if the crossings are made after coming to a complete stop prior to entering the roadway. [These] Off-highway motor vehicles shall yield the right of way to oncoming traffic and shall begin a crossing only when it can be executed safely and then cross in the most direct manner as close to a perpendicular angle as possible."

Section 12. Section 66-3-1012 NMSA 1978 (being Laws 1978, Chapter 35, Section 208, as amended) is amended to read: "66-3-1012. [MOVEMENT] DRIVING OF OFF-HIGHWAY MOTOR VEHICLES ADJACENT TO HIGHWAY.--

A. Off-highway motor vehicles issued a registration plate [pursuant to Subsection C of Section 66-3-1003 NMSA 1978], validating sticker or nonresident permit may be [moved, by nonmechanical means only] driven adjacent to a highway, in a manner so as not to interfere with traffic upon the highway, yielding to all vehicles entering or exiting the highway, only for the purpose of gaining access to or returning from areas designed for the operation of off-highway motor vehicles by the shortest possible route and when no other route is available or when the area adjacent to a highway is being used as a staging area. Such use must occur between the highway and fencing that separates the highway from private or public lands.

B. When snow conditions permit, an off-highway motor vehicle may be operated on the right-hand side of a highway, parallel, but not closer than ten feet, to the inside of the plow bank."

Section 13. Section 66-3-1013 NMSA 1978 (being Laws 1975, Chapter 240, Section 13, as amended) is amended to read:

"66-3-1013. LIABILITY ON PRIVATE LANDS.--

A. [No] A landowner shall not be held liable for damages arising out of off-highway motor vehicle-related accidents or injuries occurring on [his] the landowner's lands in which [he] the landowner is not directly involved unless the entry on the lands is subject to payment of a fee.

B. It is unlawful to operate an off-highway motor vehicle on private lands or roads except with the express permission of the [owner] landowner or leaseholder of the lands."

Section 14. Section 66-3-1014 NMSA 1978 (being Laws 1975, Chapter 240, Section 14, as amended) is amended to read:

"66-3-1014. ACCIDENTS AND ACCIDENT REPORTS.--[Any operator] The driver of an off-highway motor vehicle involved in an accident resulting in injuries to or the death of [any] a person or resulting in damage to public or private property to the extent of [fifty dollars ($50.00)] five hundred dollars ($500) or more shall immediately notify a law enforcement [officer or a law enforcement] agency of the accident and the facts relating to the accident. If the driver is under the age of eighteen, the driver's parent or legal guardian shall immediately notify a law enforcement agency of the accident and the facts relating to the accident."

Section 15. Section 66-3-1015 NMSA 1978 (being Laws 1978, Chapter 35, Section 211, as amended) is amended to read:

"66-3-1015. ENFORCEMENT.--[Every] A wildlife conservation officer, state [policeman] police officer or peace officer of this state or any of its political subdivisions, upon displaying [his] a badge of office, has the authority to enforce the provisions of the Off-Highway Motor Vehicle Act and may:

A. require [the operator of any] an off-highway motor vehicle operator to produce:

(1) the certificate of registration or nonresident permit;

(2) proof of successfully completing a board- certified training course, when required by Section 11 of this 2004 act; and

(3) the personal identification of the operator; and [may]

B. issue citations for violations of the provisions of the Off-Highway Motor Vehicle Act."

Section 16. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] OFF-HIGHWAY MOTOR VEHICLE SAFETY BOARD--CREATION--MEMBERS--RESPONSIBILITIES--COMPENSATION.--

A. The "off-highway motor vehicle safety board" is created and shall be composed of nine ex-officio members or their designees and fifteen appointed members as follows:

(1) the director of the department of game and fish or the director's designee;

(2) the director of the motor vehicle division or the director's designee;

(3) the secretary of transportation or the secretary's designee;

(4) the secretary of public safety or the secretary's designee;

(5) the commissioner of public lands or the commissioner's designee;

(6) the secretary of energy, minerals and natural resources or the secretary's designee;

(7) the secretary of tourism or the secretary's designee;

(8) the secretary of health or the secretary's designee;

(9) the director of the state parks division of the energy, minerals and natural resources department or the director's designee;

(10) one member of the New Mexico department of agriculture selected by the board of regents of New Mexico state university;

(11) one representative from each of the state's six tourism regions with expertise in the areas of off-highway motor vehicle safety or motorized and non-motorized recreation, two of whom shall be appointed by the secretary of health, two of whom shall be appointed by the secretary of tourism and two of whom shall be appointed by the secretary of energy, minerals and natural resources, to include:

(a) at least one member of a recognized off-highway motorcycle user group;

(b) one member of an all-terrain vehicle user group; and

(12) three representatives from local law enforcement agencies, who shall be appointed by the secretary of public safety;

(13) two representatives from a conservation or environmental organization, who shall be appointed by the secretary of energy, minerals and natural resources;

(14) two off-highway motor vehicle dealers, who shall be appointed by the secretary of tourism; and

(15) one health professional with expertise in injury prevention or treatment, who shall be appointed by the secretary of health.

B. The board shall select a chairperson, a vice chairperson and other officers as it deems necessary.

C. The board shall meet no less than twice annually and may meet more frequently upon the call of the chairperson. Nine board members then serving constitute a quorum for the transaction of board business. The board shall:

(1) by January 1, 2006, develop minimum criteria for certification as an approved off-highway motor vehicle safety training organization. The criteria shall include curriculum and materials for:

(a) training instructors to teach off-highway motor vehicle operation and safety;

(b) training the public about off-highway motor vehicle safety;

(c) teaching responsible use of off-highway motor vehicles with respect to environmental considerations, private property restrictions, off-highway motor vehicle operating laws and prohibitions against operating off-highway motor vehicles under the influence of alcohol or drugs; and

(d) training the public about age-appropriate "size-fit" use of off-highway motor vehicles;

(2) adopt and promulgate rules relating to age-appropriate "size-fit" use of off-highway motor vehicles and the acceptance or accreditation of instruction or safety courses provided in another state;

(3) by January 1, 2007, implement a state off-highway motor vehicle safety training and certification program;

(4) upon presentation to the board of a proposed program by an applicant to become an approved off-highway motor vehicle safety training organization, determine whether the applicant's program meets the minimum criteria and, if approved, shall recommend the organization for licensing pursuant to Section 10 of this 2004 act;

(5) set criteria for locating off-highway motor vehicle parks, facilities and trails, to include consideration of their effect on:

(a) wildlife and the environment;

(b) adjacent state, county, federal, tribal and private property;

(d) archaeological, cultural and historic resources;

(6) make grants from the fund to:

(a) develop and maintain trails, build and maintain staging areas, conduct restoration, market safety programs and promote safety for off-highway motor vehicles; and

(b) meet the necessary expenses incurred in carrying out the Off-Highway Motor Vehicle Act;

(7) determine off-highway motor vehicle park, facility and trail locations based on an assessment of the criteria in this subsection and all off-highway motor vehicle operating laws. The board shall solicit and consider public input when conducting its assessment;

(8) restore or, if deemed necessary, close off-highway motor vehicle tracks or trails if they pose significant or irreversible environmental damage, a danger to users or a public nuisance as determined by the board. The board shall consider and to the extent consistent with the requirements of this section, construct alternative tracks or trails as part of the closure process;

(9) set criteria for grants made from the fund, including the:

(a) applicant's financial and legal status;

(b) applicant's management plan, including specific measures to avoid or minimize environmental damage to public and private lands and danger to users and spectators;

(d) process by which the board will solicit and incorporate public input when reviewing grant applications; and

(10) certify tour guides.

D. Board members shall receive per diem and mileage as provided for nonsalaried public officers in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance."

Section 17. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] FUND CREATED--DISPOSITION.--

A. The "trail safety fund" is created in the state treasury.

B. The fund shall be administered by the tourism department. Money collected pursuant to the Off-Highway Motor Vehicle Act, including the off-highway user fee, shall be deposited with the state treasurer for credit to the fund. The state treasurer shall invest the fund as other state funds are invested. All balances in the fund shall remain in the fund and shall not revert to the general fund.

C. The tourism department, as directed by the board, shall make distributions from the fund to develop and maintain trails, build and maintain staging areas, market safety programs and promote safety for off-highway motor vehicles and for the purpose of meeting the necessary expenses incurred by the tourism department and the division in carrying out the provisions of the Off-Highway Motor Vehicle Act."

Section 18. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] PENALTIES.--

A. Unless the violation is declared a felony, a petty misdemeanor or a citation under the Motor Vehicle Code, a person who violates the provisions of the Off-Highway Motor Vehicle Act is guilty of a misdemeanor, as provided by Section 66-8-7 NMSA 1978.

B. In addition to other penalties imposed by the court, when a person is convicted of a felony or misdemeanor committed while operating an off-highway motor vehicle, the person may be ordered by the court to complete a board-certified safety training course."

Section 19. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] SAFETY HELMET.--Failure by a passenger or driver under the age of eighteen to use a safety helmet while on an off-highway motor vehicle shall not in any instance constitute fault or negligence and shall not limit or apportion damages."

Section 20. REPEAL.--Sections 66-9-1, 66-9-2, 66-9-4, 66-9-8, 66-9-9 and 66-9-11 through 66-9-13 NMSA 1978 (being Laws 1971, Chapter 177, Sections 1 and 2, Laws 1973, Chapter 86, Section 1 and Laws 1971, Chapter 177, Sections 7, 8, 10, 11 and 12, as amended) are repealed.

Section 21. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2005.

- 25 -