Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Sharer

DATE TYPED 3/08/05

HB

SHORT TITLE Sale of Alcohol to DWI Convicts

SB 587

ANALYST Ford

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$0.1

See Narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB 581

Conflicts with HB 282, HB 472, HB 492, HB 493, HB 494, HB 502, SB 154

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Department of Public Safety (DPS)

Regulation and Licensing Department (RLD)

Taxation and Revenue Department (TRD)

SUMMARY

Synopsis of Bill

Senate Bill 587 prohibits an individual who has been convicted of DWI from purchasing alcohol

from a retailer for a period of 5 years. It prohibits a retailer of alcoholic beverages to sell alcohol

to a person convicted of DWI for a period of 5 years. The bill requires retailers to require pur-

chases to show identification in the form of a driver’s license or identification card. If the identi-

fication is issued by the state of New Mexico, the retailer shall determine if the purchaser is re-

stricted from purchasing alcohol. The retailer is relieved of this requirement if the driver’s li-

cense or identification card is not issued by this state.

The bill also requires the Motor Vehicle Division (MVD) of the TRD to place a magnetic code

or other indication on the driver’s license to allow a retailer to determine if the person is permit-

ted to purchase alcohol.

Senate Bill 587 -- Page 2

The bill provides that it is a petty misdemeanor to give, loan, sell or deliver an identification card

to a person unable to purchase alcohol with the knowledge that the person intends to use the

identification to purchase alcohol. The measure also provides that it is a petty misdemeanor to

purchase alcohol for a person unable to purchase alcohol under the provisions of the bill.

Significant Issues

The goal of the bill presumably is to reduce the number of repeat DWI offenses by limiting ac-

cess to alcohol for all DWI offenders. However, the bill raises a number of concerns relating to

enforcement.

The bill prohibits a licensed retailer from selling alcohol to a DWI offender for a period of 5

years. However, the law defines “retailer” very narrowly and includes only a person selling al-

coholic beverages in unbroken packages for consumption, and not for resale, off the licensed

premises. RLD indicates that there are approximately 77 retailer licenses in the state. As writ-

ten, the bill would not apply to other establishments such as restaurants, bars, clubs etc. Thus,

DWI offenders would be allowed to purchase alcohol from these other establishments. If the in-

tent of the bill is to encompass all establishments selling alcohol, the language should be changed

from “retailer” to “any holder of a liquor license issued under the provisions of the Liquor Con-

trol Act.”

Another potential enforcement issue is in the identification of DWI offenders. The bill requires

the MVD to include a magnetic code or other marking that will allow a retailer to determine if

the person is not authorized to purchase alcohol. This raises a number of questions. First, if the

MVD chooses to use a magnetic code, the liquor license-holder would require special equipment

to read the license. According to the MVD, these readers cost approximately $100 each. It is

relatively easy to check an individual’s age since the date of birth is printed on the front of the

driver’s license, but obtaining information from the magnetic strip would be more cumbersome.

If the bill is meant to cover all liquor license holders, this provision could prove even more bur-

densome. For example, a server at a restaurant would not be able to check identification at the

table but would presumably be required to collect the licenses of all those ordering alcohol, run

the licenses through a reader, then return the licenses.

Another issue regarding the notation on the driver’s license is the use of the term “identification

card.” It is unclear what kind of identification card is required. Under current law, a liquor li-

cense holder shall not sell alcohol to a person who cannot produce identification to verify his/her

age. Section 60-7B-2 NMSA 1978 provides that evidence of age and identity “may be shown by

any document which contains a picture of the person issued by a federal, state, county or munici-

pal government, or subdivision agency thereof, including but not limited to a motor vehicle op-

erator’s license or an identification card issued to a member of the armed forces.” Section 66-5-

401 NMSA 1978 allows the MVD to issue identification cards to persons who do not have a

driver’s license.

Thus, it is unclear if the bill’s reference to “identification card” is specific to the MVD-issued

card, which presumably would carry information about the holder’s eligibility to purchase alco-

hol, or any government issued identification card, such as a military identification.

The bill further provides that if the driver’s license or identification card is not issued by the state

Senate Bill 587 -- Page 3

of New Mexico, the retailer is relieved of the obligation to determine if the purchaser is eligible

to buy alcohol. This section clearly relieves the retailer of checking the eligibility of an individ-

ual from out-of-state, but does this provision also apply when a New Mexico resident uses an

identification issued by a federal or local government, such as a military identification. If the

bill allows a New Mexico resident to use identification other than that issued by the MVD, then

the provision creates a rather significant loophole in the enforcement of the purchasing restric-

tion since such identification would not carry information regarding the person’s eligibility to

purchase alcohol. On the other hand, if the bill allows only an MVD-issued identification to be

used, the bill may have a detrimental effect on individuals who do not have such identification

but wish to legally purchase alcohol.

Section 1 of the bill provides that it is a petty misdemeanor for a person to purchase alcoholic

beverages for a person unable to purchase alcohol because of a DWI conviction. This section

also raises a number of issues.

First, as DPS points out, this creates strict liability because it does not require that the individuals

know the other person is prohibited from purchasing alcohol. Unlike the current age require-

ment, it would be difficult for an individual who is buying alcohol that is to be shared whether

someone in his/her group is prohibited from buying alcohol.

Another uncertainty is whether this provision applies to private functions such as a party or a

wedding. If the host of the function purchased alcohol for all his/her guests and one of those

guests was prohibited from purchasing alcohol as a DWI offender, would the host be guilty of a

petty misdemeanor.

TRD notes that it may be difficult to mark the offender’s driver’s license and meet the record

keeping requirements under current conditions because MVD does not receive conviction infor-

mation in a timely manner. Courts must wait until appeal times have lapsed and often don’t send

MVD copies of the conviction until sentencing, which can be weeks, months or even years later.

The bill does not specify what fees, if any, the DWI offender would have to pay to MVD for the

special driver’s license. Would MVD be authorized to charge its usual fee for issuing a driver’s

license. Should MVD be authorized to charge an additional fee to cover the expense of develop-

ing a new license.

FISCAL IMPLICATIONS

TRD indicates that significant changes would be required. The magnetic strip on the current

driver’s license would have to be encoded with a special code or other identifying mark. Cost

estimates vary depending on how MVD decides to implement the driver’s license requirements.

However, if MVD re-issues driver’s licenses for only those individuals convicted of DWI, the

cost would likely be under $100,000. This cost could be off-set by fees charged to the individ-

ual.

DPS writes that its “…Special Investigations Division would be required to monitor and investi-

gate alleged violations of the proposed bill. There will be substantial costs associated with these

investigations and their enforcement.” DPS indicates that, if fully staffed, it would be able to en-

force these new provisions.

Senate Bill 587 -- Page 4

ADMINISTRATIVE IMPLICATIONS

The bill would necessitate administrative changes for the MVD, which would have to develop a

method for encoding or otherwise marking the driver’s license and would have to keep records

of such individuals. This would require close coordination with the courts. MVD indicates that

the July 1 effective date may not be realistic given the changes that are necessary.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Senate Bill 587 is nearly identical to Senate Bill 581. Several other bills have been introduced to

combat New Mexico’s DWI problem which would amend the same code sections as those

amended in Senate Bill 587. These bills include House Bills 282, 472, 492, 493, 494, and 502

and Senate Bill 154.

TECHNICAL ISSUES

If the intent of the bill is to limit all access to alcohol for DWI offenders, the bill should be ex-

panded to prohibit the sale from all liquor license holders, not just licensed retailers.

EF/yr:lg