HB0447

HOUSE BILL 447

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

INTRODUCED BY

David C. Chavez

AN ACT

RELATING TO MOTOR VEHICLES; REQUIRING COURTS TO ORDER SUSPENSION OR REVOCATION OF DRIVER'S LICENSES UPON CONVICTION OF CERTAIN CRIMES OR ADJUDICATION OF DELINQUENCY FOR CERTAIN CRIMES AND UNDER THE IMPLIED CONSENT ACT; ELIMINATING MOTOR VEHICLE DIVISION SUSPENSION OR REVOCATION HEARINGS; ELIMINATING CERTAIN EMPLOYEE POSITIONS IN THE TAXATION AND REVENUE DEPARTMENT; AMENDING, REPEALING AND ENACTING SECTIONS OF THE MOTOR VEHICLE CODE; MAKING AN APPROPRIATION.

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

SECTION 1. A new section of the Motor Vehicle Code is enacted to read:

"[NEW MATERIAL] COURT TO ORDER SUSPENSION OR REVOCATION--SUSPENSION OR REVOCATION BY THE DIVISION.--

A. Whenever a person is convicted of or adjudicated a delinquent for a misdemeanor or a felony pursuant to the Motor Vehicle Code, the court, in addition to other sentencing authority the court may have for those convictions, shall order the person's driving privileges or driver's license to be suspended or revoked pursuant to the guidelines in this section when the conviction or adjudication becomes final.

B. When the conviction or adjudication of a person is for one of the following offenses, the court shall order the person's driving privileges or driver's license to be revoked:

(1) manslaughter or negligent homicide resulting from the operation of a motor vehicle;

(2) an offense rendering a person a "first offender" as defined in the Motor Vehicle Code;

(3) an offense rendering a person a "subsequent offender" as defined in the Motor Vehicle Code;

(4) a felony in the commission of which a motor vehicle is used or a felony pursuant to the Motor Vehicle Code;

(5) failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in the death or personal injury of another;

(6) perjury or the making of a false affidavit or statement under oath to the division under the Motor Vehicle Code or under any other law relating to the ownership or operation of motor vehicles;

(7) conviction or forfeiture of bail not vacated upon three charges of reckless driving committed within a period of twelve months; or

(8) the offense of shooting at or from a motor vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978 or of a conviction for a conspiracy or an attempt to commit that offense.

C. When the conviction is for violating Section 66-8-102 NMSA 1978 or the adjudication is for driving while under the influence of intoxicating liquor or drugs and the person convicted or adjudicated is also subject to revocation of the person's driver's license or driving privilege pursuant to Section 66-8-111 NMSA 1978, the court shall order the person's driving privilege or driver's license revoked for that offense for a combined period of time equal to:

(1) one year for a first offender; or

(2) for a subsequent offender:

(a) two years for a second conviction;

(b) three years for a third conviction; or

(c) the remainder of the offender's life for a fourth or subsequent conviction, subject to a five-year review, as provided in Sections 66-5-5 and 66-8-102 NMSA 1978.

D. The court shall apply the license revocation provisions of Subsection C of this section to a person who was three or more times convicted of driving a motor vehicle under the influence of intoxicating liquor or drugs and who has a driver's license revocation pursuant to the law in effect prior to June 17, 2005, upon the request of the person and if the person has had an ignition interlock license for three years or more and has proof from the ignition interlock vendor of no violations of the ignition interlock device in the previous six months.

E. Upon the adjudication of delinquency of a person pursuant to Section 32A-2-19 NMSA 1978 or Subsection G of Section 32A-2-22 NMSA 1978, the court shall suspend the person's driver's license or driving privileges for ninety days or for a second or subsequent offense, the court may suspend the person's driver's license or driving privileges for up to one year or revoke the driver's license or driving privileges.

F. In a case other than one in Subsections A through E of this section, when a conviction or adjudication of a person involves a violation of the Motor Vehicle Code, the court shall order the suspension of the person's driver's license or driving privileges for a period of no less than thirty days but no more than one year; provided that if a provision of the Motor Vehicle Code states a period of suspension or requires revocation, the court shall order that period of suspension or the revocation.

G. In a case where the court has adjudicated or made a finding that a person is incompetent to drive a motor vehicle, the court shall revoke the person's driver's license or driving privileges with the condition that the person shall not reapply for driving privileges or a driver's license until a subsequent adjudication or determination by a court that the person is competent to drive a motor vehicle.

H. When a court has suspended or revoked a person's driver's license or driving privileges, the court shall require the surrender of the driver's license or driving privilege permit and the court shall forward the license or permit to the division together with documentation reflecting the suspension or revocation and the conviction or adjudication leading to the suspension or revocation.

I. Upon notice to the division, a conviction or adjudication pursuant to a law of another jurisdiction, territory or possession of the United States or of a tribe, when that law is substantially similar to a law identified in this section, shall be treated by the division as a conviction or adjudication pursuant to this section and a driver's license or driving privileges shall be suspended or revoked accordingly as if ordered by a court of this state. If the period of time for suspension is discretionary, the division shall suspend the driver's license or driving privileges for ninety days. In addition, the division shall suspend the license of a resident of this state, or the privilege of a nonresident to drive a motor vehicle in this state, for thirty days upon receiving notice of failure to appear or pay a penalty assessment imposed by a tribe or imposed in another state that is a signatory of the Nonresident Violator Compact with New Mexico.

J. For the purposes of this section, the terms "conviction" and "convicted" mean that the person has entered a plea of guilty or nolo contendere or been found guilty in the trial court and has waived or exhausted all of the person's rights to an appeal."

SECTION 2. Section 66-5-19 NMSA 1978 (being Laws 1978, Chapter 35, Section 241, as amended) is amended to read:

"66-5-19. RESTRICTED LICENSES.--

A. The division, upon issuing a driver's license or a provisional license, has authority, whenever good cause appears, to impose restrictions, including the shortening of the licensure period suitable to the licensee's driving ability with respect to the type of or special mechanical control devices required on a motor vehicle that the licensee may operate or such other restrictions applicable to the licensee as the division determines to be appropriate to ensure the safe operation of a motor vehicle by the licensee.

B. At age seventy-five and thereafter, the applicant shall renew the applicant's license on a yearly basis at no cost to the applicant.

C. The division may either issue a special restricted license or may set forth such restrictions upon the usual license form.

D. The division may issue a restricted license or a restricted provisional license for driving during daylight hours only to some visually impaired persons who fail the usual eyesight test. The health standards advisory board created pursuant to the provisions of Section 66-5-6 NMSA 1978 shall evaluate the extent of the visual impairment and its effect on the driving ability of the applicant, and, based on its recommendations, the director may issue a restricted license under the following conditions:

(1) the applicant has no record of moving violations;

(2) the necessity of the license is shown to the satisfaction of the director; and

(3) the applicant satisfies the provisions of Section 66-5-206 NMSA 1978 relating to proof of financial responsibility.

[E. The division may, upon receiving satisfactory evidence of any violation of the restrictions of the license, suspend the license, but the licensee is entitled to a hearing as upon a suspension under Sections 66-5-1 through 66-5-47 NMSA 1978.

F.] E. It is a misdemeanor for any person to operate a motor vehicle in any manner in violation of the restrictions imposed in a restricted license issued to the person."

SECTION 3. Section 66-5-25 NMSA 1978 (being Laws 1978, Chapter 35, Section 247, as amended) is amended to read:

"66-5-25. SUSPENDING PRIVILEGES OF NONRESIDENTS--REPORTING CONVICTIONS--FAILURES TO APPEAR--FAILURES TO PAY.--

A. The privilege of driving a motor vehicle on the highways of this state given to a nonresident shall be subject to suspension or revocation by the [division] courts in like manner and for like cause as a driver's license may be suspended or revoked.

B. The division is [further] authorized, upon receiving a record of the conviction in this state of a nonresident driver of a motor vehicle of any offense under the motor vehicle laws of this state, or of notice of failure to appear or upon determination by the division of failure to pay a penalty assessment, to forward the record to the motor vehicle administrator in the state wherein the person so convicted is a resident.

C. Upon a request by a tribe, the division is authorized to forward to a tribal court or other authority, as specified in an applicable intergovernmental agreement, the record of the conviction in this state of a resident driver of a motor vehicle, who is subject to the jurisdiction of the tribe, of any offense under the Motor Vehicle Code or of notice of failure to appear or upon determination by the division of a failure to pay a penalty assessment."

SECTION 4. Section 66-5-36 NMSA 1978 (being Laws 1978, Chapter 35, Section 258, as amended) is amended to read:

"66-5-36. RIGHT OF APPEAL TO COURT.--A person denied a license or whose license has been canceled [suspended or revoked] or restricted by the department [except when the cancellation or revocation is mandatory under the provisions of Chapter 66, Article 5 NMSA 1978] may file an appeal in the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

SECTION 5. Section 66-5-68 NMSA 1978 (being Laws 1989, Chapter 14, Section 17, as amended) is amended to read:

"66-5-68. DISQUALIFICATION.--

A. The department shall disqualify a person from driving a commercial motor vehicle for at least thirty days if the federal motor carrier safety administration reports to the division that the person poses an imminent hazard.

B. The department shall disqualify a person who holds a commercial driver's license or who is required to hold a commercial driver's license from driving a commercial motor vehicle for a period of not less than one year, which shall run concurrently with any revocation or suspension action for the same offense, if the person:

(1) refuses to submit to a chemical test when requested pursuant to the provisions of the Implied Consent Act;

(2) is twenty-one years of age or more and submits to chemical testing pursuant to the Implied Consent Act and the test results indicate an alcohol concentration of eight one hundredths or more;

(3) submits to chemical testing pursuant to the Implied Consent Act and the test results indicate an alcohol concentration of four one hundredths or more if the person is driving a commercial motor vehicle;

(4) is less than twenty-one years of age and submits to chemical testing pursuant to the Implied Consent Act and the test results indicate an alcohol concentration of two one hundredths or more; or

(5) is convicted of a violation of:

(a) driving a motor vehicle while under the influence of intoxicating liquor or drugs in violation of Section 66-8-102 NMSA 1978, an ordinance of a municipality of this state or the law of another state;

(b) leaving the scene of an accident involving a commercial motor vehicle driven by the person in violation of Section 66-7-201 NMSA 1978 or an ordinance of a municipality of this state or the law of another state;

(d) driving a commercial motor vehicle after the driver's commercial driver's license is revoked, suspended, disqualified or canceled for violations while operating a commercial motor vehicle; or

(e) causing a fatality in the unlawful operation of a motor vehicle pursuant to Section 66-8-101 NMSA 1978.

C. The department shall disqualify a person from driving a commercial motor vehicle for a period of not less than three years if any of the violations specified in Subsection B of this section occur while transporting a hazardous material required to be placarded.

D. The department shall disqualify a person from driving a commercial motor vehicle for life if convicted of two or more violations of any of the offenses specified in Subsection B of this section, or any combination of those offenses, arising from two or more separate incidents, but the secretary may issue regulations establishing guidelines, including conditions, under which a disqualification for life under this subsection may be reduced to a period of not less than ten years. This subsection applies only to those offenses committed after July 1, 1989.

E. The department shall disqualify a person from driving a commercial motor vehicle for life if the person uses a commercial motor vehicle in the commission of any felony involving the manufacture, distribution or dispensing of a controlled substance or the possession with intent to manufacture, distribute or dispense a controlled substance.

F. The department shall disqualify a person from driving a commercial motor vehicle for a period of not less than sixty days if convicted of two serious traffic violations or one hundred twenty days if convicted of three serious traffic violations, if the violations were committed while driving a commercial motor vehicle, arising from separate incidents occurring within a three-year period.

G. The department shall disqualify a person from driving a commercial motor vehicle for a period of:

(1) not less than one hundred eighty days nor more than two years if the person is convicted of a first violation of an out-of-service order while transporting hazardous materials required to be placarded pursuant to the federal Hazardous Materials Transportation Act or while operating a motor vehicle designed to transport more than fifteen passengers, including the driver;

(2) not more than one year if the person is convicted of a first violation of an out-of-service order; or

(3) not less than three years nor more than five years if, during any ten-year period, the person is convicted of any subsequent violations of out-of-service orders, in separate incidents, while transporting hazardous materials required to be placarded pursuant to that act or while operating a motor vehicle designed to transport more than fifteen passengers, including the driver.

H. The department shall disqualify a person from driving a commercial motor vehicle for sixty days if:

(1) the person has been convicted of two serious traffic violations in separate incidents within a three-year period; and

(2) the second conviction results in revocation, cancellation or suspension of the person's commercial driver's license or noncommercial motor vehicle driving privileges for sixty days.

I. The department shall disqualify a person from driving a commercial motor vehicle for one hundred twenty days, in addition to any other period of disqualification, if:

(1) the person has been convicted of more than two serious traffic violations within a three-year period; and

(2) the third or a subsequent conviction results in the revocation, cancellation or suspension of the person's commercial driver's license or noncommercial motor vehicle driving privileges.

J. When a person is disqualified from driving a commercial motor vehicle, any commercial driver's license held by that person is invalidated without a separate proceeding of any kind and the driver is not eligible to apply for a commercial driver's license until the period of time for which the driver was disqualified has elapsed.

K. The department shall disqualify a person from driving a commercial motor vehicle for not less than:

(1) sixty days if the person is convicted of a first violation of a railroad-highway grade crossing violation;

(2) one hundred twenty days if, during any three-year period, the person is convicted of a second railroad-highway grade crossing violation in a separate incident; and

(3) one year if, during any three-year period, the person is convicted of a third or subsequent railroad-highway grade crossing violation in a separate incident.

L. After disqualifying [suspending, revoking] or canceling, or after receiving notice from a court or other jurisdiction of the suspension or revocation of, a commercial driver's license, the department shall, within ten days, update its records to reflect that action. After disqualifying [suspending, revoking] or canceling, or after receiving notice from a court or other jurisdiction of the suspension or revocation of, a nonresident commercial driver's privileges, the department shall, within ten days, notify the licensing authority of the state that issued the commercial driver's license.

M. When disqualifying [suspending, revoking] or canceling, or after receiving notice from a court or other jurisdiction of the suspension or revocation of, a commercial driver's license, the department shall treat a conviction received in another state in the same manner as if it was received in this state.

N. The department shall post and enforce any disqualification sent by the federal motor carrier safety administration to the department that indicates that a commercial motor vehicle driver poses an imminent hazard.

O. The federal transportation security administration of the department of homeland security shall provide for an appeal of a disqualification for a commercial driver's license hazardous materials endorsement on the basis of a background check, and the department shall provide to a hazardous materials applicant a copy of the procedures established by the transportation security administration, on request, at the time of application.

P. New Mexico shall conform to the federal transportation security administration of the department of homeland security rules and shall "look back" or review a maximum of seven years for a background check."

SECTION 6. Section 66-8-111.1 NMSA 1978 (being Laws 1984, Chapter 72, Section 7, as amended by Laws 2003, Chapter 51, Section 14 and by Laws 2003, Chapter 90, Section 7) is amended to read:

"66-8-111.1. LAW ENFORCEMENT OFFICER AGENT FOR DEPARTMENT--WRITTEN NOTICE OF REVOCATION AND RIGHT TO A COURT HEARING.--On behalf of the department, a law enforcement officer requesting a chemical test or directing the administration of a chemical test pursuant to Section 66-8-107 NMSA 1978 shall serve immediate written notice of revocation and of right to a court hearing, pursuant to Section 66-8-112 NMSA 1978, on a person who refuses to permit chemical testing or on a person who submits to a chemical test the results of which indicate an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age. Upon serving notice of revocation, the law enforcement officer shall take the license or permit of the driver, if any, and issue a temporary license valid for twenty days or, if the driver requests a court hearing pursuant to Section 66-8-112 NMSA 1978, valid until the date the [department] court issues [the] an order following that hearing; provided that a temporary license shall not be issued to a driver without a valid license or permit. The law enforcement officer shall send the person's driver's license to the department along with the signed statement required pursuant to Section 66-8-111 NMSA 1978."

SECTION 7. Section 66-8-112 NMSA 1978 (being Laws 1978, Chapter 35, Section 520, as amended by Laws 2003, Chapter 51, Section 15 and by Laws 2003, Chapter 90, Section 8) is amended to read:

"66-8-112. REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE--NOTICE--EFFECTIVE DATE--COURT HEARING [HEARING COSTS--REVIEW].--

A. The effective date of revocation pursuant to Section 66-8-111 NMSA 1978 is twenty days after notice of revocation or, if the person whose driver's license or privilege to drive is being revoked [or denied] requests a court hearing pursuant to this section, the date that the [department] court issues [the order following that hearing] an order upholding the revocation. The date of notice of revocation is:

(1) the date the law enforcement officer serves written notice of revocation and of right to a court hearing pursuant to Section 66-8-111.1 NMSA 1978; or

(2) in the event the results of a chemical test cannot be obtained immediately, the date notice of revocation is served by mail by the department. This notice of revocation and of right to a court hearing shall be sent by certified mail and shall be deemed to have been served on the date borne by the return receipt showing delivery, refusal of the addressee to accept delivery or attempted delivery of the notice at the address obtained by the arresting law enforcement officer or on file with the department.

B. Within ten days after receipt of notice of revocation pursuant to Subsection A of this section, a person whose license or privilege to drive is revoked or denied [or the person's agent may request a hearing. The hearing request shall be made in writing and shall be accompanied by a payment of twenty-five dollars ($25.00) or a sworn statement of indigency on a form provided by the department. A standard for indigency shall be established pursuant to regulations adopted by the department. Failure to request a hearing within ten days shall result in forfeiture of the person's right to a hearing. Any person less than eighteen years of age who fails to request a hearing within ten days shall have notice of revocation sent to his parent, guardian or custodian by the department. A date for the hearing shall be set by the department, if practical, within thirty days after receipt of notice of revocation. The hearing shall be held in the county in which the offense for which the person was arrested took place.

C. The department may postpone or continue any hearing on its own motion or upon application from the person and for good cause shown for a period not to exceed ninety days from the date of notice of revocation and provided that the department extends the validity of the temporary license for the period of the postponement or continuation.

D. At the hearing, the department or its agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers] may request a hearing in the magistrate, metropolitan or municipal court having jurisdiction over the location where the offense leading to the notice of revocation occurred and, upon such request, shall pay the applicable filing fee. Jurisdiction to conduct a hearing pursuant to this section is granted to magistrate, metropolitan and municipal courts. The court, upon thirty days' written notice to the person and department, shall hear the case.

[E.] C. The hearing shall be limited to the following issues:

(1) whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs;

(2) whether the person was arrested;

(3) whether this hearing is held no later than ninety days after notice of revocation; and either

(4) whether:

(a) the person refused to submit to a test upon request of the law enforcement officer; and

(b) the law enforcement officer advised that the failure to submit to a test could result in revocation of the person's privilege to drive; or

(5) whether:

(a) the chemical test was administered pursuant to the provisions of the Implied Consent Act; and

(b) the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.

[F.] D. The [department] court shall enter an order sustaining the revocation [or denial] of the person's license or privilege to drive if the department finds that:

(1) the law enforcement officer had reasonable grounds to believe the driver was driving a motor vehicle while under the influence of intoxicating liquor or drugs;

(2) the person was arrested;

(3) this hearing is held no later than ninety days after notice of revocation; and

(4) either:

(a) the person refused to submit to the test upon request of the law enforcement officer after the law enforcement officer advised [him] the person that [his] the person's failure to submit to the test could result in the revocation of [his] the person's privilege to drive; or

(b) that a chemical test was administered pursuant to the provisions of the Implied Consent Act and the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.

[G.] E. If one or more of the elements set forth in Paragraphs (1) through (4) of Subsection [F] D of this section are not found, [by] the [department, the person's license shall not be revoked] court shall enter an order voiding the revocation.

[H. A person adversely affected by an order of the department may seek review within thirty days in the district court in the county in which the offense for which the person was arrested took place. The district court, upon thirty days' written notice to the department, shall hear the case. On review, it is for the court to determine only whether reasonable grounds exist for revocation or denial of the person's license or privilege to drive based on the record of the administrative proceeding.

I.] F. Any person less than eighteen years of age shall have results of [his] the person's hearing forwarded by the department to [his] the person's parent, guardian or custodian."

SECTION 8. TEMPORARY PROVISION.--

A. On and after July 1, 2011, a full-time-equivalent employee position in the motor vehicle division of the taxation and revenue department that has as its primary function the administration or conduct of license suspension and revocation hearings pursuant to provisions of the Motor Vehicle Code in effect prior to July 1, 2011 shall not be filled if and when it becomes vacant.

B. As of July 1, 2012, the positions identified in Subsection A of this section are eliminated from the table of organizational listing of the motor vehicle division of the taxation and revenue department.

C. During fiscal year 2012, when a position identified in Subsection A of this section becomes vacant, and notwithstanding the reversionary requirement of any other law, any money from projected vacancy savings shall be transferred to the administrative office of the courts and deposited in the court automation fund.

D. The taxation and revenue department and the administrative office of the courts shall work cooperatively to ensure that the transfer required by Subsection C of this section occurs in a timely manner.

SECTION 9. REPEAL.--Sections 66-5-26, 66-5-29 and 66-5-30 NMSA 1978 (being Laws 1978, Chapter 35, Sections 248, 251 and 252, as amended) are repealed.

SECTION 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.

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