2005 Senate Bill text for SB0252

SENATE BILL 252

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Dede Feldman

FOR THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE

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. "division" means the motor vehicle division;

C. "fund" means the trail safety fund;

D. "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;

E. "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; and

F. "unpaved public roadway" means a dirt graveled street or road that is constructed, signed and maintained for regular passenger-car use by the general public."

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] a person shall not 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 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--RENEWAL.--

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 [the registration shall be good for two years after the year in which the motor vehicle is registered. Each registration must be renewed every three years to be valid.]

(2) an amount determined by rule of the tourism department not to exceed thirty dollars ($30.00) for an off-highway user fee for each off-highway motor vehicle.

B. 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

(2) an amount determined by rule of the tourism department not to exceed thirty dollars ($30.00) for an off-highway user fee for each off-highway motor vehicle.

C. The fees for a nonresident permit of an off-highway motor vehicle are either:

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

(2) an amount determined by rule of the tourism department not to exceed thirty dollars ($30.00) for an off-highway user fee for each off-highway motor vehicle that is not currently in compliance with a similar off-highway user fee law or rule in another state; or

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

D. Except as provided in Paragraph (3) of Subsection C of this section, each registration certificate and nonresident permit shall be:

(1) good for two years after the month in which the off-highway motor vehicle is registered or the permit is issued; and

(2) renewed every two years.

E. The off-highway user fee for each off-highway motor vehicle shall be paid upon obtaining and renewing each registration certificate or nonresident permit.

[C.] F. 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.

G. A fee of one dollar ($1.00) on registration certificates and nonresident permits shall be collected for the New Mexico clean and beautiful program.

H. The tourism department, in conjuction with the division and the department of game and fish, may establish and maintain sites to collect fees and issue permits for residents and nonresidents."

Section 4. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] FEES--DISPOSITION.--Fees collected pursuant to Section 66-3-1004 NMSA 1978 shall be distributed as follows:

A. of each seventeen dollars ($17.00) collected pursuant to Paragraph (1) of Subsection A, Paragraph (1) of Subsection B or Paragraph (1) of Subsection C of Section 66-3-1004 NMSA 1978, five dollars ($5.00) to the division, and the money is appropriated to the division to defray the cost of making and issuing registration certificates, validating stickers and nonresident permits for off-highway motor vehicles. The remaining twelve dollars ($12.00) shall be deposited in the motor vehicle suspense fund for distribution pursuant to Section 66-6-23 NMSA 1978;

B. fees collected pursuant to Paragraph (2) of Subsection A, Paragraph (2) of Subsection B or Paragraph (2) of Subsection C of Section 66-3-1004 NMSA 1978 to the fund;

C. fees collected pursuant to Subsection F of Section 66-3-1004 NMSA 1978 to the division, and the money is appropriated to the division to defray the cost of making and issuing duplicate registration certificates and nonresident permits for off-highway motor vehicles;

D. of each seventeen dollars ($17.00) collected pursuant to Paragraph (3) of Subsection C of Section 66-3-1004 NMSA 1978, five dollars ($5.00) to the division, and the money is appropriated to the division to defray the costs of making and issuing nonresident permits. The remaining twelve dollars ($12.00) shall be deposited in the fund;

E. fees collected pursuant to Subsection G of Section 66-3-1004 NMSA 1978 to the tourism department for the New Mexico clean and beautiful program; and

F. notwithstanding the provisions of Subsections A through E of this section, seven dollars ($7.00) of each fee collected by the department of game and fish to the game protection fund."

Section 5. 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 registration fees;

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

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

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

[F.] E. [which are] farm tractors [or], 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 being used for agricultural operations; or

F. used exclusively on private closed courses, whether owned by the rider or another person; provided that, if applicable, the excise tax and registration fees have been paid and are current."

Section 6. 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 [upon the grounds that] certificate if:

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 Chapter 7, Article 14 NMSA 1978."

Section 7. 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 OF TITLE.--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 8. Section 66-3-1008 NMSA 1978 (being Laws 1978, Chapter 35, Section 204, as amended) is amended to read:

"66-3-1008. [REGISTRATION PLATES] VALIDATING STICKERS 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 9. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] OFF-HIGHWAY MOTOR VEHICLE SAFETY TRAINING ORGANIZATION--APPROVAL AND CERTIFICATION.--

A. An off-highway motor vehicle safety training organization that offers and conducts an off-highway motor vehicle safety training course shall be approved and certified by the board. Applicants for approval and certification shall submit an application to the board for consideration.

B. The board may approve and certify an organization that meets the minimum criteria established by the board for an off-highway motor vehicle safety training organization. Each approval and certification shall be renewed annually."

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

"[NEW MATERIAL] OFF-HIGHWAY MOTOR VEHICLE SAFETY PERMIT--REQUIREMENTS--ISSUANCE.--A person under the age of eighteen shall be required to successfully complete an off-highway motor vehicle safety training course for which the person shall have parental permission. The course shall be conducted by an off-highway motor vehicle safety training organization that is approved and certified by the board. Upon successful completion of the course, the person shall receive an off-highway motor vehicle safety permit issued by the organization."

Section 11. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

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

A. A person 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 liquor or drugs as provided by Section 66-8-102 NMSA 1978;

(3) while carrying a passenger, unless the vehicle is specifically designed by the manufacturer to carry a passenger;

(4) while in pursuit of and with intent to hunt or take a species of animal or bird protected by law unless otherwise authorized by the state game commission;

(5) in excess of ten miles per hour within two hundred feet of a business, animal shelter, horseback rider, bicyclist, pedestrian or occupied dwelling, unless the person operates the vehicle on a closed course or track;

(6) unless in possession of the person's registration certificate or nonresident permit;

(7) unless the vehicle is equipped with a spark arrester approved by the United States forest service; provided that a snowmobile is exempt from this provision;

(8) when conditions such as darkness limit visibility to five hundred feet or less, unless the 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; or

(9) that produces noise that exceeds ninety-six decibels when measured using test procedures established by the society of automotive engineers pursuant to standard J-1287.

B. A person under the age of eighteen shall not operate an off-highway motor vehicle:

(1) or ride upon an off-highway motor vehicle without wearing eye protection and a safety helmet that is securely fastened in a normal manner as headgear and that meets the standards established by the board; or

(2) without an off-highway motor vehicle safety permit.

C. A person under the age of eighteen but at least ten years of age shall not operate an off-highway motor vehicle unless the person is visually supervised at all times by a parent, legal guardian or a person over the age of eighteen who has a valid driver's license. This subsection shall not apply to a person who is at least:

(1) thirteen years of age and has a valid motorcycle license and off-highway motor vehicle safety permit; or

(2) fifteen years of age and has a valid driver's license and off-highway motor vehicle safety permit.

D. A person under the age of ten shall not operate an off-highway motor vehicle unless:

(1) the vehicle is an age-appropriate size-fit vehicle established by rule of the board; and

(2) the person is visually supervised at all times by a parent, legal guardian or instructor of a safety training course certified by the board.

E. The requirements of Subsections C and D of this section do not apply to a person who is part of an organized tour under the guidance or direction of a guide certified by the board.

F. An off-highway motor vehicle may not be sold or offered for sale if the vehicle produces noise that exceeds ninety-six decibels when measured using test procedures established by the society of automotive engineers pursuant to standard J-1287."

Section 12. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] SAFETY HELMET--CIVIL LIABILITY.--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 13. 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 14. 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--PROHIBITED AREAS.--

A. [No] A person shall not operate an off-highway motor vehicle on any:

(1) limited access highway or freeway at any time; or

(2) any paved street or highway except as provided in Subsection B of this section.

B. 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.

C. A person shall not operate an off-highway motor vehicle on state game commission-owned, -controlled or -administered land except as specifically allowed pursuant to Chapter 17, Article 6 NMSA 1978.

D. 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, pursuant to Chapter 16, Article 2 NMSA 1978."

Section 15. 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, yielding to all vehicles entering or exiting the highway, in a manner so as not to interfere with traffic upon 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 16. Section 66-3-1013 NMSA 1978 (being Laws 1975, Chapter 240, Section 13, as amended) is amended to read:

"66-3-1013. LIABILITY--LOCAL REGISTRATION PROHIBITED.--

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 17. 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 18. 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] the officer's 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 certificate or nonresident permit;

(2) proof of successful completion of an off-highway motor vehicle training course conducted by an off-highway safety training organization approved and certified by the board, when required by Section 10 of this 2005 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 19. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

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

A. The "off-highway motor vehicle safety board" is created. The board consists of the following nine ex-officio members or their designees and fifteen appointed members:

(1) the director of the department of game and fish;

(2) the director of the motor vehicle division;

(3) the secretary of transportation;

(4) the secretary of public safety;

(5) the commissioner of public lands;

(6) the secretary of energy, minerals and natural resources;

(7) the secretary of tourism;

(8) the secretary of health;

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

(10) one member of the New Mexico department of agriculture appointed 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 off-highway motor vehicle safety or motorized and non-motorized recreation, two of whom are appointed by the secretary of health, two of whom are appointed by the secretary of tourism and two of whom are appointed by the secretary of energy, minerals and natural resources, to include at least one member of:

(a) a recognized off-highway motorcycle user group;

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

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

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

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

(15) one health professional with expertise in injury prevention or treatment 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 at the call of the chairperson but not less than twice annually. A majority of members constitutes a quorum for the transaction of business. The affirmative vote of at least a majority of the quorum present shall be necessary for an action to be taken by the board.

D. Members shall be appointed to staggered terms of two years each; provided that no more than eight terms expire in any one year. The ex-officio board members shall select by lot eight appointed members to serve initial terms of three years each. A vacancy shall be filled by appointment by the original appointing authority for the remainder of the unexpired term.

E. Appointed members of the board are entitled to reimbursement for attending meetings of the board as provided for nonsalaried officers in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance."

Section 20. A new section of the Off-Highway Motor Vehicle Act is enacted to read:

"[NEW MATERIAL] BOARD--POWERS AND DUTIES.--

A. The board may cooperate with appropriate federal agencies, public and private organizations and corporations and local government units to implement the provisions of the Off-Highway Motor Vehicle Act.

B. The board shall:

(1) accept and evaluate all applications for approval and certification of an off-highway motor vehicle safety training organization and approve and certify those that meet the minimum criteria;

(2) notify the division of the off-highway motor vehicle safety training organizations that have received approval and certification;

(3) establish minimum criteria, by January 1, 2007, to approve and certify an off-highway motor vehicle safety training organization. The criteria shall include requirements for curriculum and materials for:

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

(b) training the public about off-highway motor vehicle safety and age-appropriate size-fit use of off-highway motor vehicles; and

(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;

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

(5) adopt and promulgate rules regarding the:

(a) age-appropriate size-fit use of off-highway motor vehicles;

(b) acceptance or accreditation of instruction or safety courses provided by other states; and

(6) determine, with public participation and input, off-highway motor vehicle park, facility and trail locations. The board shall establish criteria to determine locations that include consideration of off-highway motor vehicle operating laws and effects on:

(a) wildlife and the environment;

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

(d) archaeological, cultural and historic resources;

(7) 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 the construction of alternative tracks or trails as part of the closure process;

(8) accept and evaluate all applications for grants from the fund and make recommendations to the tourism department. The board shall establish criteria for grants from the fund that include consideration of 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) availability of matching funds; and

(e) public participation and input; and

(9) certify tour guides."

Section 21. 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. The fund is a nonreverting fund, and income from investment of the fund shall be credited to the fund. The fund shall be administered by the tourism department, and money in the fund is appropriated to the tourism department to carry out the purposes of the Off-Highway Motor Vehicle Act. Expenditures from the fund shall be by warrant of the secretary of finance and administration upon vouchers signed by the secretary of tourism or the secretary's authorized representative.

B. The tourism department, upon recommendation 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."

Section 22. 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 pursuant to Section 66-8-7 NMSA 1978.

B. When a person is convicted of a felony or misdemeanor committed while operating an off-highway motor vehicle, the court may order the person to complete a board-certified safety training course."

Section 23. Section 66-4-1 NMSA 1978 (being Laws 1978, Chapter 35, Section 214, as amended) is amended to read:

"66-4-1. DEALERS, WRECKERS, WHOLESALERS AND DISTRIBUTORS OF VEHICLES AND TITLE SERVICE COMPANIES MUST BE LICENSED--PRESUMPTION OF CONDUCTING BUSINESS.--

A. A person, unless licensed to do so by the department, shall not carry on or conduct the active trade or business of:

(1) a dealer in motor vehicles of a type subject to registration pursuant to the Motor Vehicle Code, including:

(a) trailers, but not trailers sold as kits;

(b) recreational vehicles designed to be towed; [and]

(d) off-highway motor vehicles pursuant to the Off-Highway Motor Vehicle Act;

(2) dismantling any vehicle for the resale of the parts. Any person possessing three or more wrecked, dismantled or partially wrecked or dismantled vehicles and selling or offering for sale a used vehicle part and who regularly sells or offers for sale used vehicles or used vehicle parts shall be presumed to be conducting the business of wrecking or dismantling a vehicle for the resale of the parts;

(3) wholesaling of vehicles. Any person who sells or offers for sale vehicles of a type subject to registration in this state, to a vehicle dealer licensed pursuant to the Motor Vehicle Code or who is franchised by

a manufacturer, distributor or vehicle dealer to sell or promote the sale of vehicles dealt in by such manufacturer, distributor or vehicle dealer shall be presumed to be conducting the business of wholesaling;

(4) distributing of vehicles. Any person who distributes or sells new or used motor vehicles to dealers and who is not a manufacturer shall be presumed to be conducting the business of distributing vehicles; or

(5) a title service company. Any person who for consideration prepares or submits applications for the registration of or title to vehicles shall be presumed to be engaging in the business of a title service company.

B. Application for a dealer, wholesaler, distributor or wrecker of vehicles license or a title service company license shall be made upon the form prescribed by the department and shall contain the name and address of the applicant and, when the applicant is a partnership, the name and address of each partner or, when the applicant is a corporation, the names of the principal officers of the corporation and the state in which incorporated and the place where the business is to be conducted and the nature of the business and such other information as may be required by the department. Every application shall be verified by the oath or affirmation of the applicant, if an individual, or, in the event an applicant is a partnership or corporation, by a partner or officer of the partnership or corporation. Every application shall be accompanied by the fee required by law.

C. A metal processor or dealer in scrap who dismantles, processes for scrap, shreds, compacts, crushes or otherwise destroys more than three vehicles within a period of one year shall be licensed pursuant to the provisions of Sections 66-4-1 through 66-4-9 NMSA 1978.

D. To ensure that a dealer, wholesaler, distributor, wrecker of vehicles or title service company complies with this section, the secretary may apply to a district court of this state to have a person operating without a license as required by this section or operating without the bond required by Section 66-4-7 NMSA 1978 enjoined from engaging in business until that person complies with the requirements of licensing as provided by this section and the bonding requirements of Section 66-4-7 NMSA 1978.

E. Upon application to a court for the issuance of an injunction against an unlicensed person, the court may issue an order temporarily restraining that person from doing business. The court shall hear the matter within three days and, upon a showing by the preponderance of the evidence that the person is operating without a license and that the person has been given notice of the hearing as required by law, the court may enjoin the person from engaging in business in New Mexico until the person ceases to be unlicensed. Upon issuing an injunction, the court may also order the business premises of the person to be sealed by the sheriff and may allow the person access thereto only upon approval of the court.

F. A temporary restraining order shall not be issued against a person who has complied with the provisions of this section. Upon a showing to the court by a person against whom a temporary restraining order has been issued that [he] the person has a license in accordance with the provisions of this section, the court shall dissolve or set aside the temporary restraining order."

Section 24. Section 66-6-22.1 NMSA 1978 (being Laws 1990, Chapter 120, Section 34, as amended) is amended to read:

"66-6-22.1. MOTOR VEHICLE SUSPENSE FUND CREATED--RECEIPTS--DISBURSEMENTS.--

A. There is created in the state treasury a fund to be known as the "motor vehicle suspense fund".

B. The fees collected under the provisions of Sections 66-1-1 through 66-6-19 NMSA 1978 shall be paid to the state treasurer for the credit of the motor vehicle suspense fund not later than the close of the second business day after their receipt, except as otherwise provided by the Off-Highway Motor Vehicle Act.

C. Money deposited to the credit of or disbursed from the motor vehicle suspense fund shall be accounted for as provided by law or rule of the secretary of finance and administration. Disbursements from the motor vehicle suspense fund shall be made by the department of finance and administration upon request and certification of their appropriateness by the secretary of finance and administration or the secretary's delegate.

D. The balance of the motor vehicle suspense fund is appropriated for the purpose of making refunds, distributions and other disbursements authorized or required by law to be made from the motor vehicle suspense fund, provided that no distribution shall be made to a municipality, county or fee agent operating a motor vehicle field office with respect to money collected and remitted to the department by that municipality, county or fee agent until the report of the municipality, county or fee agent is audited and accepted by the department."

Section 25. 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 26. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2006.

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