Committee Substitute for HB0010JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 10

49th legislature - STATE OF NEW MEXICO - second session, 2010

AN ACT

RELATING TO TRANSPORTATION; PROHIBITING THE USE OF A MOBILE COMMUNICATION DEVICE WHILE OPERATING A MOTOR VEHICLE; PROHIBITING THE USE OF A MOBILE COMMUNICATION DEVICE WHILE OPERATING A MOTOR VEHICLE ENGAGED IN PUBLIC TRANSPORTATION OR SCHOOL TRANSPORTATION; PROVIDING EXCEPTIONS; IMPOSING PENALTIES AND FEES; DIRECTING THE DISPOSITION OF CERTAIN PENALTY ASSESSMENT MISDEMEANOR RECEIPTS; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2009; MAKING AN APPROPRIATION; DECLARING AN EMERGENCY.

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

Section 1. Section 35-6-1 NMSA 1978 (being Laws 1968, Chapter 62, Section 92, as amended) is amended to read:

"35-6-1. MAGISTRATE COSTS--SCHEDULE--DEFINITION OF

"CONVICTED".--

A. Magistrate judges, including metropolitan court judges, shall assess and collect and shall not waive, defer or suspend the following costs:

docket fee, criminal actions under Section 29-5-1 NMSA 1978. . . . . . . . . . . . . . . . . . . . $ 1.00;

docket fee, to be collected prior to docketing any other

criminal action, except as provided in Subsection B

of Section 35-6-3 NMSA 1978. . . . . . . . . 20.00.

Proceeds from this docket fee shall be transferred to the administrative office of the courts for deposit in the court facilities fund;

docket fee, twenty dollars ($20.00) of which shall be deposited in the court automation fund and fifteen dollars ($15.00) of which shall be deposited in the civil legal services fund, to be collected prior to docketing any civil action,

except as provided in Subsection A of Section 35-6-3 NMSA 1978. . . . . . . . . . . . . . . . . . . . . 72.00;

jury fee, to be collected from the party demanding trial by jury in any civil action at the time the demand is filed or made. . . . . . . . . . . . . . .25.00;

copying fee, for making and certifying copies of any records in the court, for each page copied by photographic process. . . . . . . . . . . [50] 0.50.

Proceeds from this copying fee shall be transferred to the administrative office of the courts for deposit in the court facilities fund; and

copying fee, for computer-generated or electronically

transferred copies, per page. . . . . . . . . .1.00.

Proceeds from this copying fee shall be transferred

to the administrative office of the courts for

deposit in the court automation fund.

Except as otherwise specifically provided by law, docket fees shall be paid into the court facilities fund.

B. Except as otherwise provided by law, no other costs or fees shall be charged or collected in the magistrate or metropolitan court.

C. The magistrate or metropolitan court may grant free process to any party in any civil proceeding or special statutory proceeding upon a proper showing of indigency. The magistrate or metropolitan court may deny free process if it finds that the complaint on its face does not state a cause of action.

D. As used in this subsection, "convicted" means the defendant has been found guilty of a criminal charge by the magistrate or metropolitan judge, either after trial, a plea of guilty or a plea of nolo contendere. Magistrate judges, including metropolitan court judges, shall assess and collect and shall not waive, defer or suspend the following costs:

(1) corrections fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance that may be enforced by the imposition of a term of imprisonment as follows:

in a county with a metropolitan court. . . . . . . .$10.00;

in a county without a metropolitan court. . . . . . 20.00;

(2) court automation fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance that may be enforced by the imposition of a term of

imprisonment. . . . . . . . . . . . . . . . . . . . . . .10.00;

(3) traffic safety fee, to be collected upon

conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle. . . . . . . . . . . . . . . . . . . . . . . . . 3.00;

(4) judicial education fee, to be collected upon conviction from persons convicted of operating a motor vehicle in violation of the Motor Vehicle Code, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance punishable by a term of

imprisonment. . . . . . . . . . . . . . . . . . . . . . .3.00;

(5) jury and witness fee, to be collected upon conviction from persons convicted of operating a motor vehicle in violation of the Motor Vehicle Code, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance punishable by a term of imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.00;

(6) brain injury services fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle. . . . . . . . . . . . . . . . . . . . . 5.00;

[and]

(7) court facilities fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance that may be enforced by the imposition of a term of imprisonment as follows:

in a county with a metropolitan court. . . . . . . .24.00;

in any other county. . . . . . . . . . . . . . . . .10.00;

and

(8) an interlock device fee, to be collected upon conviction from persons convicted of operating a motor vehicle in violation of the Motor Vehicle Code, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance punishable by a term of imprisonment. . . . . . . . . . . . . . . . . . . . . . . 2.00.

E. Metropolitan court judges shall assess and collect and shall not waive, defer or suspend as costs a mediation fee not to exceed five dollars ($5.00) for the docketing of small claims and criminal actions specified by metropolitan court rule. Proceeds of the mediation fee shall be deposited into the metropolitan court mediation fund."

Section 2. Section 35-7-4 NMSA 1978 (being Laws 1968, Chapter 62, Section 99, as amended) is amended to read:

"35-7-4. MAGISTRATE ADMINISTRATION--MONTHLY

REMITTANCES.--Each magistrate court shall pay to the administrative office of the courts, not later than the date each month established by regulation of the director of the administrative office, the amount of all fines, forfeitures and costs collected by the court during the previous month, except for amounts disbursed in accordance with law. The administrative office shall return to each magistrate court a written receipt itemizing all money received. The administrative office shall deposit the amount of all fines and forfeitures with the state treasurer for credit to the current school fund. The administrative office shall deposit the amount of all costs, except all costs collected pursuant to Subsections D and E of Section 35-6-1 NMSA 1978, for credit to the general fund. The amount of all costs collected pursuant to Subsections D and E of Section 35-6-1 NMSA 1978 shall be credited as follows:

A. the amount of all costs collected pursuant to Paragraph (1) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the local government corrections fund;

B. the amount of all costs collected pursuant to Paragraph (2) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the court automation fund;

C. the amount of all costs collected pursuant to Paragraph (3) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the traffic safety education and enforcement fund;

D. the amount of all costs collected pursuant to Paragraph (4) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the judicial education fund;

E. the amount of all costs collected pursuant to Paragraph (5) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the jury and witness fee fund;

F. the amount of all costs collected pursuant to Paragraph (6) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the brain injury services fund;

G. the amount of all costs collected pursuant to Paragraph (7) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the court facilities fund; [and]

H. the amount of all costs collected pursuant to Paragraph (8) of Subsection D of Section 35-6-1 NMSA 1978 for credit to the interlock device fund; and

[H.] I. the amount of all costs collected pursuant to Subsection E of Section 35-6-1 NMSA 1978 for credit to the metropolitan court mediation fund."

Section 3. Section 35-14-11 NMSA 1978 (being Laws 1983, Chapter 134, Section 6, as amended) is amended to read:

"35-14-11. MUNICIPAL ORDINANCE--COURT COSTS--

COLLECTION--PURPOSE.--

A. Every municipality shall enact an ordinance requiring assessment of corrections fees, judicial education fees [and], court automation fees and interlock device fees to be collected as court costs and used as provided in this section.

B. A municipal judge shall collect the following costs:

(1) a corrections fee of twenty dollars ($20.00);

(2) a judicial education fee of three dollars ($3.00); [and]

(3) a court automation fee of six dollars ($6.00); and

(4) an interlock device fee of two dollars ($2.00).

C. The fees are to be collected upon conviction from persons convicted of violating any ordinance relating to the operation of a motor vehicle or any ordinance that may be enforced by the imposition of a term of imprisonment.

D. All money collected pursuant to Paragraph (1) of Subsection B of this section shall be deposited in a special fund in the municipal treasury and shall be used for:

(1) municipal jailer or juvenile detention officer training;

(2) the construction planning, construction, operation and maintenance of a municipal jail or juvenile detention facility;

(3) paying the cost of housing municipal prisoners in a county jail or detention facility or housing juveniles in a detention facility;

(4) complying with match or contribution requirements for the receipt of federal funds relating to jails or juvenile detention facilities;

(5) providing inpatient treatment or other substance abuse programs in conjunction with or as an alternative to jail sentencing;

(6) defraying the cost of transporting prisoners to jails or juveniles to juvenile detention facilities; or

(7) providing electronic monitoring systems. E. A municipality may credit the interest collected from fees deposited in the special fund pursuant to Subsection D of this section to the municipality's general fund.

F. All money collected pursuant to Paragraph (2) of Subsection B of this section shall be remitted monthly to the state treasurer for credit to the judicial education fund and shall be used for the education and training, including production of bench books and other written materials, of municipal judges and other municipal court employees.

G. All money collected pursuant to Paragraph (3) of Subsection B of this section shall be remitted monthly to the state treasurer for credit to the municipal court automation fund and shall be used for the purchase, maintenance and operation of court automation systems in the municipal courts. Operation includes staff expenses, temporary or otherwise, and costs as needed to comply with Section 35-14-12 NMSA 1978. The court automation systems shall have the capability of providing, on a timely basis, electronic records in a format specified by the judicial information systems council.

H. All money collected pursuant to Paragraph (4) of Subsection B of this section shall be remitted monthly to the state treasurer for credit to the interlock device fund.

[H.] I. As used in this section, "convicted" means the defendant has been found guilty of a criminal charge by a municipal judge, either after trial, a plea of guilty or a plea of nolo contendere."

Section 4. A new section of the Motor Vehicle Code is enacted to read:

"[NEW MATERIAL] USE OF MOBILE COMMUNICATION DEVICE PROHIBITED--EXCEPTIONS--PENALTY.--

A. A driver shall not use a mobile communication device except:

(1) if the driver reasonably believes that there is no other person in the motor vehicle capable of doing so:

(a) to report illegal activity;

(b) to summon medical or law enforcement help; or

(2) in an authorized emergency or law enforcement motor vehicle if required by the driver's official duties;

(3) when the device is permanently affixed to a motor vehicle used by a motor carrier pursuant to the Motor Carrier Act, to a motor vehicle used by a public utility pursuant to the Public Utility Act or to a motor vehicle used by a cooperative pursuant to the Rural Electric Cooperative Act and the device is used in the ordinary course of business of the motor carrier, public utility or cooperative;

(4) if the driver holds a valid amateur radio operator license or other license issued by the federal communications commission and is operating an amateur radio;

(5) if the driver is operating a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the citizens' or family radio service bands in accordance with rules of the federal communications commission;

(6) while the motor vehicle is lawfully parked;

(7) when using hands-free equipment; provided that the exception allowed in this paragraph does not apply to the driver of a motor vehicle used in a public or school transportation system unless the provisions of Paragraph (8) of this subsection apply to the driver; or

(8) in addition to the applicable exceptions in the provisions of this subsection, the driver of a motor vehicle used in a public or school transportation system may use a mobile communication device in the ordinary course of business as required by the public or school transportation system.

B. As used in this section:

(1) "hands-free equipment" means a built-in feature of, or a piece of equipment used in addition to, a mobile communication device that allows a person using the mobile communication device to keep both of the person's hands on the steering wheel and the person's eyes on the highway except when using a hand and the eyes to activate or deactivate a function of the hands-free equipment or the mobile communication device; and

(2) "mobile communication device" means a wireless, two-way communications device that is designed to receive and transmit voice, text or image communication.

C. A violation of the provisions of this section is a penalty assessment misdemeanor, the penalty for which is prescribed in Section 66-8-116 NMSA 1978."

Section 5. Section 66-8-116 NMSA 1978 (being Laws 1978, Chapter 35, Section 524, as amended) is amended to read:

"66-8-116. PENALTY ASSESSMENT MISDEMEANORS--

DEFINITION--SCHEDULE OF ASSESSMENTS.--

A. As used in the Motor Vehicle Code, "penalty assessment misdemeanor" means violation of any of the following listed sections of the NMSA 1978 for which, except as provided in Subsections D and E of this section, the listed penalty assessment is established:

COMMON NAME OF OFFENSE SECTION VIOLATED PENALTY ASSESSMENT

Permitting unlicensed

minor to drive 66-5-40 $ 10.00

Failure to obey sign 66-7-104 10.00

Failure to obey signal 66-7-105 10.00

Speeding 66-7-301

(1) up to and including

ten miles an hour

over the speed limit 15.00

(2) from eleven up to

and including fifteen

miles an hour

over the speed limit 30.00

(3) from sixteen up to

and including twenty

miles an hour over the

speed limit 65.00

(4) from twenty-one up to

and including twenty-five

miles an hour

over the speed limit 100.00

(5) from twenty-six up to

and including thirty

miles an hour over the

speed limit 125.00

(6) from thirty-one up to

and including thirty-five

miles an hour over the

speed limit 150.00

(7) more than thirty-five

miles an hour over the

speed limit 200.00

Unfastened safety belt 66-7-372 25.00

Child not in restraint device

or seat belt 66-7-369 25.00

Minimum speed 66-7-305 10.00

Speeding 66-7-306 15.00

Improper starting 66-7-324 10.00

Improper backing 66-7-354 10.00

Improper lane 66-7-308 10.00

Improper lane 66-7-313 10.00

Improper lane 66-7-316 10.00

Improper lane 66-7-317 10.00

Improper lane 66-7-319 10.00

Improper passing 66-7-309 through 66-7-312 10.00

Improper passing 66-7-315 10.00

Controlled access

violation 66-7-320 10.00

Controlled access

violation 66-7-321 10.00

Improper turning 66-7-322 10.00

Improper turning 66-7-323 10.00

Improper turning 66-7-325 10.00

Following too closely 66-7-318 10.00

Failure to yield 66-7-328 through 66-7-331 10.00

Failure to yield 66-7-332 50.00

Failure to yield 66-7-332.1 25.00

Pedestrian violation 66-7-333 10.00

Pedestrian violation 66-7-340 10.00

Failure to stop 66-7-342 and 66-7-344

through 66-7-346 10.00

Railroad-highway grade

crossing violation 66-7-341 and 66-7-343 150.00

Passing school bus 66-7-347 100.00

Failure to signal 66-7-325 through 66-7-327 10.00

Failure to secure load 66-7-407 100.00

Operation without oversize-

overweight permit 66-7-413 50.00

Improper equipment 66-3-801 10.00

Improper equipment 66-3-901 20.00

Improper emergency

signal 66-3-853 through 66-3-857 10.00

Operation interference 66-7-357 5.00

Littering 66-7-364 300.00

Improper parking 66-7-349 through 66-7-352

and 66-7-353 5.00

Improper parking 66-3-852 5.00

Failure to dim lights 66-3-831 10.00

Riding in or towing

occupied house trailer 66-7-366 5.00

Improper opening of doors 66-7-367 5.00

No slow-moving vehicle

emblem or flashing

amber light 66-3-887 5.00

Open container - first

violation 66-8-138 25.00

Prohibited mobile

communication device Section 4 of

use this 2010 act 25.00.

B. The term "penalty assessment misdemeanor" does not include a violation that has caused or contributed to the cause of an accident resulting in injury or death to a person.

C. When an alleged violator of a penalty assessment misdemeanor elects to accept a notice to appear in lieu of a notice of penalty assessment, a fine imposed upon later conviction shall not exceed the penalty assessment established for the particular penalty assessment misdemeanor and probation imposed upon a suspended or deferred sentence shall not exceed ninety days.

D. The penalty assessment for speeding in violation of Paragraph (4) of Subsection A of Section 66-7-301 NMSA 1978 is twice the penalty assessment established in Subsection A of this section for the equivalent miles per hour over the speed limit.

E. Upon a second conviction for operation without a permit for excessive size or weight pursuant to Section 66-7-413 NMSA 1978, the penalty assessment shall be two hundred fifty dollars ($250). Upon a third or subsequent conviction, the penalty assessment shall be five hundred dollars ($500)."

Section 6. Section 66-8-116.3 NMSA 1978 (being Laws 1989, Chapter 318, Section 35, Laws 1989, Chapter 319, Section 14 and also Laws 1989, Chapter 320, Section 5, as amended by Laws 2009, Chapter 244, Section 1 and by Laws 2009, Chapter 245, Section 5) is amended to read:

"66-8-116.3. PENALTY ASSESSMENT MISDEMEANORS--ADDITIONAL FEES.--In addition to the penalty assessment established for each penalty assessment misdemeanor, there shall be assessed:

A. in a county without a metropolitan court, twenty dollars ($20.00) to help defray the costs of local government corrections;

B. a court automation fee of ten dollars ($10.00);

C. a traffic safety fee of three dollars ($3.00), which shall be credited to the traffic safety education and enforcement fund;

D. a judicial education fee of three dollars ($3.00), which shall be credited to the judicial education fund;

E. a jury and witness fee of five dollars ($5.00), which shall be credited to the jury and witness fee fund;

[E.] F. a juvenile adjudication fee of one dollar ($1.00), which shall be credited to the juvenile adjudication fund;

[F.] G. a brain injury services fee of five dollars ($5.00), which shall be credited to the brain injury services fund; [and

G.] H. a court facilities fee as follows:

in a county with a metropolitan court. . . . . . . . . .$24.00;

in any other county. . . . . . . . . . . . . . . . . 10.00; and

I. an interlock device fee of two dollars ($2.00), which shall be credited to the interlock device fund."

Section 7. Section 66-8-119 NMSA 1978 (being Laws 1968, Chapter 62, Section 159, as amended) is amended to read:

"66-8-119. PENALTY ASSESSMENT REVENUE--DISPOSITION.--

A. The division shall remit all penalty assessment receipts, except receipts collected pursuant to Subsections A through [G] I of Section 66-8-116.3 NMSA 1978, to the state treasurer for credit to the general fund.

B. The division shall remit all penalty assessment fee receipts collected pursuant to:

(1) Subsection A of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the local government corrections fund;

(2) Subsection B of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the court automation fund;

(3) Subsection C of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the traffic safety education and enforcement fund;

(4) Subsection D of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the judicial education fund;

(5) Subsection E of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the jury and witness fee fund;

(6) Subsection F of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the juvenile adjudication fund;

[(6)] (7) Subsection [F] G of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the brain injury services fund; [and

(7)] (8) Subsection [G] H of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the court facilities fund; and

(9) Subsection I of Section 66-8-116.3 NMSA 1978 to the state treasurer for credit to the interlock device fund."

Section 8. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

- 20 -