HOUSE BILL 197

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Antonio Lujan

AN ACT

RELATING TO MOTOR VEHICLES; PROHIBITING TEXTING WHILE DRIVING; PROVIDING THAT TEXTING WHILE DRIVING THAT RESULTS IN DEATH OR GREAT BODILY HARM IS HOMICIDE BY VEHICLE OR GREAT BODILY HARM BY VEHICLE; PROVIDING PENALTIES.

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

     SECTION 1. A new section of Chapter 66, Article 8 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] TEXTING WHILE DRIVING.--

          A. Texting while driving consists of reading, typing or sending a text message on a mobile communication device while driving a motor vehicle.

          B. Whoever commits texting while driving is guilty of a misdemeanor and, notwithstanding the provisions of Section 31-18-13 NMSA 1978, shall be punished:

                (1) upon a first conviction, by imprisonment for not less than five days nor more than ninety days, or by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100), or both; and

                (2) upon a second or subsequent conviction, by imprisonment for not less than ten days nor more than six months, or by a fine of not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000), or both.

          C. Upon conviction pursuant to this section, the director may suspend the license or permit to drive and any nonresident operating privilege for up to ninety days.

          D. The provisions of this section do not apply to:

                (1) a driver of a law enforcement or emergency vehicle if required by the driver's official duties; or

                (2) using a mobile communication device for the purpose of reporting an emergency or to report a driver suspected of being under the influence of intoxicating liquor or drugs.  

          E. As used in this section:

                (1) "driving" means being in actual physical control of a motor vehicle on a highway or street, but "driving" does not include being lawfully parked;

                (2) "mobile communication device" means a wireless communication device that is designed to receive and transmit text or image messages, but "mobile communication device" does not include a global positioning or navigation system or a device that is physically or electronically integrated into the motor vehicle; and

                (3) "text message" means a digital communication transmitted or intended to be transmitted to a communication device and includes electronic mail, an instant message, a text or image communication or any command or request to an internet site."

     SECTION 2. Section 66-8-101 NMSA 1978 (being Laws 1978, Chapter 35, Section 509, as amended) is amended to read:

     "66-8-101. HOMICIDE BY VEHICLE--GREAT BODILY HARM BY VEHICLE.--

          A. Homicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.

          B. Great bodily harm by vehicle is the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle.

          C. A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug or while violating Section 66-8-113 NMSA 1978 or Section 1 of this 2011 act is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor Vehicle Code shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.

          D. A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, as provided in Subsection C of this section, and who has incurred a prior DWI conviction within ten years of the occurrence for which [he] the person is being sentenced under this section shall have [his] the person's basic sentence increased by four years for each prior DWI conviction.

          E. For the purposes of this section, "prior DWI conviction" means:

                (1) a prior conviction under Section 66-8-102 NMSA 1978; or

                (2) a prior conviction in New Mexico or any other jurisdiction, territory or possession of the United States, including a tribal jurisdiction, when the criminal act is driving under the influence of alcohol or drugs.

          F. A person who willfully operates a motor vehicle in violation of Subsection C of Section 30-22-1 NMSA 1978 and directly or indirectly causes the death of or great bodily harm to a human being is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

     SECTION 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.