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

SPONSOR Rehm, W

ORIGINAL DATE

LAST UPDATED

1/31/08

HB 592

SHORT TITLE

Controlled Substance in Blood as Violation

SB

ANALYST C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

NFI

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY08

FY09

FY10 3 Year

Total

Cost

Recurring

or Non-

Rec

Fund

Affected

Total

Indeterminable

General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Administrative Office of District Attorneys (AODA)

Bernalillo County Metropolitan Court (BCMC)

Public Defender (PD)

Department of Health (DOH)

Department of Corrections (DOC)

SUMMARY

Synopsis of Bill

House Bill 592 amends Section 66-8-102 NMSA 1978 to provide that it is unlawful for a person

who has a detectable amount of a controlled substance or its metabolite in the person’s blood to

drive a vehicle in this state if possession of that controlled substance is in violation of the

Controlled Substances Act.

House Bill 592 – Page

2

The effective date of the Act is July 1, 2008.

FISCAL IMPLICATIONS

The bill, if adopted, may significantly increase the number of cases brought before state courts as

the DWI statute will henceforth criminalize not only the operation of a vehicle while under the

influence of alcohol or drugs, but also the operation of a vehicle while not under the influence of

drugs and alcohol, but where the driver is found to have had a detectable amount of a controlled

substance in his or her system.

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

of statutory changes. Any additional fiscal impact on the judiciary and department of public

safety would be proportional to the enforcement of this law and commenced prosecutions.

According to the Department of Health, HB592 may increase the drug testing workload at the

Scientific Laboratory Division by approximately 1,800 cases per year, more than doubling the

current drug caseload for Implied Consent work. The recurring resources required to perform the

drug analysis and to follow up the lab work with expert witness testimony for criminal

prosecution as a result of passage of HB 592 would be $200,000 per year to pay for 2 additional

FTE (chemists), test kits and reagents for the additional testing, and in-state travel costs to

provide expert witness testimony.

SIGNIFICANT ISSUES

1) The Controlled Substances Act, Section 30-31-1 NMSA 1978, and specifically Sections 30-

31-6 through Section 30-31-10, Schedules I through V, contains lists of controlled substances.

2) The amendment to Section 66-8-102 prohibits a “detectable amount" of a controlled substance

or its metabolite from being in the blood of a driver of a vehicle. Other unlawful acts under this

section are:

•

Driving while under the influence of intoxicating liquor

•

Driving while under the influence of intoxicating liquor to a degree that

renders the person incapable of safely driving a vehicle

•

Driving with specific blood alcohol levels in the person’s blood or breath

PERFORMANCE IMPLICATIONS

The courts are participating in performance-based budgeting. This bill may have an impact on

the measures of the district courts in the following areas:

•

Cases disposed of as a percent of cases filed

•

Percent change in case filings by case type

ADMINISTRATIVE IMPLICATIONS

HB 592 could increase the caseload of various court divisions like Case Initiation, Background

Investigation, Probation, etc., that are directly impacted by each new DWI case.

The bill could also increase the inmate population or probation/parole caseloads by a large

number, thus increasing workloads for current prison and probation/parole staff.

House Bill 592 – Page

3

TECHNICAL ISSUES

Due to the fact that this statute calls for a finding of controlled substances in one’s blood, it is

unclear how this finding would be made absent a blood draw on an individual. It would be very

difficult for an officer, acting on reasonable suspicion that the individual might be under the

influence of a controlled substance, to confirm or dispel that suspicion absent the extremely

intrusive practice of drawing blood. Additionally, an officer may not be qualified to make the

determination of presence of a controlled substance. This issue is before the New Mexico Court

of Appeals. See State v. Aleman, Ct. App. No. 25, 224; and State v. Valenzuela, Ct. App. No.

25, 225

OTHER SUBSTANTIVE ISSUES

According to Bernalillo County Metropolitan Court, the proposed bill raises several legal issues,

including the following:

1.

The proposed language may be unconstitutionally void for vagueness, as the

amendment would result in an internal contradiction. Whereas paragraph B provides

that it is unlawful for a person who is under the influence of any drug to a degree that

renders the person incapable of safely driving a vehicle

to drive a vehicle within this

state, the new paragraph C makes it unlawful for an individual merely to have a

“detectable amount" of a “controlled substance" (which themselves are included among

“any drugs") in his or her blood while driving – irrespective of the effect on the

individual’s ability to safely drive a vehicle. The proposed amended statute may be

similarly void for vagueness as the criminalization of “detectable amount[s]" of

controlled substances in the blood while driving – rather than threshold limits or any

relation to the ability of the person to safely operate a vehicle – may not allow

individuals the fair opportunity to determine whether their conduct is prohibited by the

statute.

2.

The proposed language is overbroad, in that it prohibits innocent as well as criminal

conduct. The new language is unrelated to the harm that the legislature sought to

prevent by enacting the DWI statute, i.e., the operation of vehicles by persons under the

influence of drugs or alcohol. Rather, the proposed language appears designed to

circumvent the prohibition against criminalizing the presence of drugs in the body as

illegal possession (see e.g. State v. Twayne H

., 123 N.M. 42, 933 P.2d 251 (Ct.App.

1997); State v. McCoy

, 116 N.M. 491, 864 P.2d (Ct.App. 1993)) by ostensibly tying

the “illegal possession" to the operation of a motor vehicle.

3.

The proposed language, if enacted, would conflict with existing statutes.

ALTERNATIVES

According to the Administrative Office of District Attorneys, it may be advisable to increase the

penalties for refusing a blood test. Otherwise knowledgeable defendants who have been using

illegal drugs will refuse a blood test and getting a search warrant is so cumbersome that many

police officers either won’t or don’t do that. A drugged driver would therefore be likely to avoid

any consequences for being under the influence of drugs and driving, aside from the minimal

administrative sanction for refusing a test.

House Bill 592 – Page

4

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

A new violation would not be created for driving with a detectable amount of a controlled

substance or its metabolite in the blood when possession of the controlled substance is not

authorized by the Controlled Substances Act; a “per se" law for drugged driving.

CS/bb