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

SPONSOR

Cervantes

ORIGINAL DATE

LAST UPDATED

2/19/07

HB 1247

SHORT TITLE

DWI Chemical Test Time Limits

SB

ANALYST C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to,

HB 1247: SB 443, HB 403, HB 420, SB 440 and HB 1233.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Bernalillo County Metropolitan Court (BCMC)

Administrative Office of the District Attorneys (AODA)

Public Defenders (PD)

Department of Health (DOH)

Corrections Department (DC)

SUMMARY

Synopsis of Bill

House Bill 1247 amends Section 66-8-102 NMSA 1978, and redefines the crime of DWI based

upon breath/blood alcohol content such that it will be illegal for a person to drive a vehicle in

New Mexico if the person has an alcohol concentration of eight one hundredths (0.08) or more in

the person's blood or breath within two hours of driving the vehicle where the alcohol

concentration results from alcohol consumed before or while the person was driving the vehicle.

House Bill 1247 also redefines the crime of DWI for commercial drivers under similar

circumstances – i.e., where the theory of the intoxicated driving is based upon breath/blood

alcohol rather than impairment to the slightest degree – such that it will be illegal for a person to

House Bill 1247 – Page

2

drive a commercial motor vehicle in New Mexico if the person has an alcohol concentration of

four one hundredths (0.04) or more in the person's blood or breath within two hours of driving

where the alcohol concentration results from alcohol consumed before or while driving the

commercial motor vehicle.

Similarly, the crime of aggravated DWI based upon breath/blood alcohol content is redefined,

such that it will be illegal for a person to drive a vehicle in this state when that person has an

alcohol concentration of sixteen one hundredths (0.16) or more in the person's blood or breath

within two hours of driving the vehicle where the alcohol concentration results from alcohol

consumed before or while driving the vehicle.

Another, less substantive, but noteworthy change, is to make the language of the statute gender

neutral throughout.

House Bill 1247 allows first-time offenders to be sentenced to more than forty-eight (48) hours

of community service by removing the language that set the maximum cap of forty-eight (48)

hours, and leaving in place the language setting a minimum of twenty-four (24) hours of

community service that must be assessed.

Finally House Bill 1247 mandates that second-time offenders be sentenced to no less than forty-

eight (48) hours of community service, rather than prescribing forty-eight (48) hours as the

amount that must be assessed, and mandates that for a third conviction, an offender be sentenced

to no less than ninety-six (96) hours of community service, rather than prescribing ninety-six

(96) hours as the amount that must be assessed.

FISCAL IMPLICATIONS

No significant fiscal implications involved, as the legislation does not require any direct

additional expenditure(s) in order to be implemented.

SIGNIFICANT ISSUES

In State v. Day

, 140 N.M. 544, 14 P.3d 103 (Ct.App. 2006), the Court of Appeals held that, in

prosecuting DWI cases, the State must introduce evidence regarding the BAC of the defendant at

the time the driver was operating the vehicle. The Court rejected the State’s argument that

NMSA 66-8-102(C)(1) creates a statutory presumption of intoxication for BAC readings of .08

or greater when no significant delay occurs between driving and testing and held that a

“reasonable amount of time" and “no significant delay" are much too uncertain for any

presumption or for a rational jury inference of a .08 BAC or more at the time of driving.

The Scientific Laboratory Division of the Department of Health (“SLD") has a limited number of

experts available to provide the scientific extrapolation evidence demanded by the Court of

Appeals; therefore, the effective prosecution of DWI cases in New Mexico has been jeopardized

by the holding in Day

.

The Court of Appeals further stated in Day

, however, that the “difficulty of proof in using the

scientific retrograde extrapolation process to prove a BAC at the time of driving is an important

reason why our Legislature should address the need for effective legislation." Twice in the past

3 years, the NM courts have asked that the NM Legislature address this issue in the law. HB

House Bill 1247 – Page

3

1247 could do so and eliminate the need for expert witnesses from SLD in approximately 70% of

the alcohol DWI prosecutions in the state.

By far the most significant impact of this legislation, if enacted, will be to redefine what

constitutes DWI/DUI in New Mexico based upon breath/blood alcohol concentration. Instead of

drawn-out, technical and scientific arguments involving retrograde extrapolation and pinpointing

what an individual’s breath/blood alcohol was at the time of driving, and whether breath/blood

alcohol was increasing or decreasing – factoring in such myriad variables as metabolism,

absorption rates, past experience with alcohol, whether food or other beverages were consumed

and when, etc. –, this bill will allow the parties to focus instead on what that breath/blood alcohol

is at the time of the chemical test, provided (1) the test occurs no more than two hours after

driving, (2) the results are 0.08 or higher (unless one is a commercial driver, for whom it is 0.04),

(3) and the State can prove beyond a reasonable doubt the alcohol was consumed before or while

driving. Indeed, the legislation really does appear to be an elegant solution to the problem of

retrograde analysis and extrapolation. If one views those issues as “problems," the solution

proposed by this bill is to redefine the crime, rather than attempting to redefine the evidence –

the former being well within the domain of the legislature, the latter being an intrusion into the

purview of the judiciary.

PERFORMANCE IMPLICATIONS

House Bill 1247 is likely to have a positive effect on the resources and on the allocation of

personnel from a number of different entities – law enforcement, prosecution, and laboratory

analysts and their support staff, for the reasons discussed above under “Significant Issues."

Because the crime itself will have been redefined, there should be fewer arguments focusing on

the concept of “relation back"; i.e., what was the accused’s BAC at the time of driving.

Although “relation back" will not be eliminated as an issue, it is likely to assume a more

peripheral role – confined mainly to those cases that fall outside the two-hour window created by

the bill. Instead, the parties are likely to invest their resources into either challenging the

chemical test results themselves or challenging whether the state has met its burden of showing

that the alcohol was consumed prior to or while driving, rather than afterward. Neither of these

should have the same deleterious effects on resources and personnel allocation as the current

status quo, in which frontline prosecutors are contemplating needing scientific testimony in every

DWI/DUI case, a situation that will rapidly prove impractical at best and impossible at worst for

the laboratories and analysts involved.

ADMINISTRATIVE IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary will be proportional to the

enforcement of this law and commenced prosecutions. New laws, amendments to existing laws

and new hearings have the potential to increase caseloads in the courts, thus requiring additional

resources to handle the increase.

The long term impact of HB1247 could be to allow existing FTE at the Department of Health to

complete their required workload of drug testing within acceptable times to meet the needs of

clients (law enforcement and Office of the Medical Investigator). In recent years, the growing

demand for expert witness testimony in DWI cases has diverted manpower from performing lab

analyses and caused delays in results that have adversely affected DWI prosecution and the

House Bill 1247 – Page

4

issuance of death certificates. Legislators and the Governor have received complaints about the

delays. HB 1247 could help remedy these delays.

HB1247 could also assist prosecutors by giving them more time to prepare their case and would

reduce the number of cases lost to the “6 month" rule for timely prosecution of DWI cases (as

well as autopsy cases for the Office of the Medical Investigator who could help produce

certificates of death at a faster rate).

RELATIONSHIP

The following bills relate to HB 1247: SB 443, HB 403, HB 420 and SB 440. However, rather

than two (2) hours, each of these bills provides a three hour window for testing after operation of

the vehicle.

HB 1233 also relates to HB 1247, but differs in that it prohibits: a BAC of .08 at the time of

driving, .09 or more within one (1) hour of driving and the alcohol concentration results from

alcohol consumed before or while driving; a BAC of .10 or more within two (2) hours of driving

and the alcohol concentration results from alcohol consumed before or while driving; and a BAC

of .11 or more within three (3) hours of driving and the alcohol concentration results from

alcohol consumed before or while driving. HB 1233 also amends NMSA 66-8-110 by providing

that tests performed under the Implied Consent Act more than three (3) hours after driving may

be introduced as evidence of the alcohol concentration in the defendant’s blood at the time of the

test. HB 1247 contains no such amendment to NMSA 66-8-110.

OTHER SUBSTANTIVE ISSUES

Blood alcohol analysis in DWI cases is the attempt to measure the amount of alcohol within the

person’s blood at any given time.

Much of this session’s legislation appears to rely on the use of retrograde extrapolation in order

to redefine DWI/DUI in New Mexico. Retrograde extrapolation is the process by which

someone’s blood alcohol concentration at the time of driving is estimated by projecting

backwards from a later chemical test. This process involves estimating the absorption and

elimination of alcohol in the time period between driving and testing.

The use of this process relies on assumptions regarding the amounts of alcohol and food

consumed and the time taken to consume the alcohol and food. The process also assumes that

absorption of alcohol has been completed and the peak BAC has been reached.

The difficulty in this process is the reasonableness and justifiability of the assumptions made.

When reasonable and justifiable assumptions are made alcohol elimination rates of .015 of blood

alcohol concentration to.020 blood alcohol concentration per hour can be assumed.

In practical terms this means that an individual who has a BAC of .08 three hours after the stop

and arrest will have had a BAC of .04 at the time of the stop. This is calculated as follows:

BAC Test

First hour

Second hour Third hour

Extrapolated

Measure

0.08

-0.015

-0.015

-0.015

=0.04

House Bill 1247 – Page

5

TECHNICAL ISSUES

The 2 hour “window" of HB 1247 is less than the 3 hour window already present in the NM

“Boating While Intoxicated" law, passed by the NM Legislature in 2003, leaving inconsistencies

between the 2 laws.

ALTERNATIVES

Because of the number of bills introduced addressing the issue of breath/blood alcohol testing

and DWI/DUI in New Mexico, the legislature could do any of the following: (1) pass HB 1233,

which addresses the issue by tying the BAC level to elapsed time since driving, (2) pass one of

the bills establishing a three-hour window, (3) pass the bill presently under discussion, HB 1247,

which sets a two-hour window, or (4) leave the issue of chemical testing in DWI/DUI cases as-is,

and let trial and appellate courts continue to navigate the evidentiary issues involved.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

According to the Administrative Office of the District Attorneys, the consequence of not

enacting the bill (if none of the other, comparable pieces of legislation redefining DWI/DUI on

the basis of breath/blood alcohol content, are passed either) is that prosecutors statewide are

facing the prospect of needing scientific testimony on every DWI/DUI cases relying upon

chemical testing. This is due to two recent N.M. appellate cases – State v. Day and State v.

Lizzol. While that could conceivably be a manageable burden on the prosecution, it is rapidly

approaching the point where the burden it places on laboratories and their analysts will be

untenable. Most such analysts already complain of having in excess of thirty (30) subpoenas for

different proceedings on any given day, often in different courthouses (metropolitan, magistrate,

&/or district), frequently in different venues, a burden that also cuts back on their time in the

laboratory performing chemical tests.

As noted above, by redefining the crime itself, the legal battleground will shift significantly, and

is likely to free up resources currently expended over the issues of retrograde extrapolation and

“relation back."

CS/nt