HB0131

HOUSE BILL 131

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Tim D. Lewis

AN ACT

RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PROVIDING FOR INCREASES IN THE TIME REQUIRED FOR A PERSON'S LICENSE TO BE REVOKED AND TO USE AN IGNITION INTERLOCK DEVICE AND OBTAIN AN IGNITION INTERLOCK LICENSE DEPENDING ON THE BLOOD OR BREATH ALCOHOL CONCENTRATION; PROVIDING THAT PERSONS WHO REFUSE TO SUBMIT TO A CHEMICAL TEST WILL BE CONSIDERED TO HAVE HAD A BLOOD OR BREATH ALCOHOL CONCENTRATION OF SIXTEEN ONE HUNDREDTHS AT TIME OF ARREST FOR PURPOSES OF DETERMINING THE LENGTH OF LICENSE REVOCATION AND THEIR INTERLOCK REQUIREMENT; PROVIDING THAT PERSONS WHO DO NOT OBTAIN AN IGNITION INTERLOCK DEVICE AND LICENSE SHALL BE REQUIRED TO MAINTAIN SOBRIETY.

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

SECTION 1. Section 66-5-5 NMSA 1978 (being Laws 1978, Chapter 35, Section 227, as amended) is amended to read:

"66-5-5. PERSONS NOT TO BE LICENSED.--The division shall not issue a driver's license under the Motor Vehicle Code to any person:

A. who is under the age of eighteen years, except the division may, in its discretion, issue:

(1) an instruction permit to a person fifteen years of age or older who is enrolled in and attending or has completed a driver education course approved by the bureau that includes a DWI education and prevention component;

(2) a provisional license to a person fifteen years and six months of age or older:

(a) who has completed a driver education course approved by the bureau or offered by a public school that includes a DWI education and prevention component and has had an instruction permit for at least six months as provided in Section 66-5-8 NMSA 1978; and

(b) who has successfully completed a practice driving component;

(3) a driver's license to a person sixteen years and six months of age or older:

(a) who has had a provisional license for at least a twelve-month period immediately preceding the date of the application for the driver's license as provided in Section 66-5-9 NMSA 1978;

(b) who has complied with restrictions on that license; and

(c) who has not been adjudicated for an offense involving the use of alcohol or drugs during the twelve-month period immediately preceding the application for the driver's license and who has no pending adjudications alleging an offense involving the use of alcohol or drugs at the time of application; and

(4) to a person thirteen years of age or older who passes an examination prescribed by the division, a license restricted to the operation of a motorcycle, provided:

(a) the motorcycle is not in excess of one hundred cubic centimeters displacement;

(b) no holder of an initial license may carry any other passenger while driving a motorcycle; and

(c) the director approves and certifies motorcycles as not in excess of one hundred cubic centimeters displacement and by rule provides for a method of identification of such motorcycles by all law enforcement officers;

B. whose license or driving privilege has been suspended or denied, during the period of suspension or denial, or to any person whose license has been revoked, except as provided in Section 66-5-32 NMSA 1978 and the Ignition Interlock Licensing Act;

C. who is an habitual user of narcotic drugs or alcohol or an habitual user of any drug to a degree that renders the person incapable of safely driving a motor vehicle;

D. who [is four or more times convicted of] has had that person's driving privilege or driver's license revoked for the remainder of the offender's life for driving a motor vehicle while under the influence of intoxicating liquor or narcotic drug regardless of whether the convictions are under the laws or ordinances of this state or any municipality or county of this state or under the laws or ordinances of any other state, the District of Columbia or any governmental subdivision thereof, except as provided in the Ignition Interlock Licensing Act. Five years from the date of the [fourth] last conviction and every five years thereafter, the person may apply to any district court of this state for restoration of the license, and the court, upon good cause being shown, may order restoration of the license applied for; provided that the person has not been subsequently convicted of driving a motor vehicle while under the influence of intoxicating liquor or drugs. Upon issuance of the order of restoration, a certified copy shall immediately be forwarded to the division, and if the person is otherwise qualified for the license applied for, the four previous convictions shall not prohibit issuance of the license;

E. who was convicted on or after June 17, 2005 of driving a motor vehicle while under the influence of intoxicating liquor or drugs pursuant to the laws or ordinances of any other state, the District of Columbia or any governmental subdivision thereof, unless the person obtains an ignition interlock license as provided in the Ignition Interlock Licensing Act for a period of one year for a first conviction; a period of two years for a second conviction; a period of three years for a third conviction; or the remainder of the offender's life for a fourth or subsequent conviction, subject to a five-year review as provided in Subsection D of this section. Upon presentation of proof satisfactory to the division, the division may credit time spent by a person operating a motor vehicle with an ignition interlock or comparable device, as a condition of the person's sentence for a conviction in another jurisdiction pursuant to this subsection, against the ignition interlock time requirements imposed by this subsection. The division shall promulgate rules necessary for granting credit to persons who participate in comparable out-of-state programs following a conviction for driving a motor vehicle while under the influence of intoxicating liquor or drugs. The requirements of this subsection shall not apply to a person who applies for a driver's license ten years or more from the date of the person's last conviction, except for a person who is subject to lifetime driver's license revocation for a conviction in another jurisdiction pursuant to this subsection;

F. who has previously been afflicted with or who is suffering from any mental disability or disease that would render the person unable to drive a motor vehicle with safety upon the highways and who has not, at the time of application, been restored to health;

G. who is required by the Motor Vehicle Code to take an examination, unless the person has successfully passed the examination;

H. who is required under the laws of this state to deposit proof of financial responsibility and who has not deposited the proof;

I. when the director has good cause to believe that the operation of a motor vehicle on the highways by the person would be inimical to public safety or welfare; or

J. as a motorcycle driver who is less than eighteen years of age and who has not presented a certificate or other evidence of having successfully completed a motorcycle driver education program licensed or offered in conformance with rules of the bureau."

SECTION 2. Section 66-5-29 NMSA 1978 (being Laws 1978, Chapter 35, Section 251, as amended) is amended to read:

"66-5-29. MANDATORY REVOCATION OF LICENSE BY DIVISION.--

A. The division shall immediately revoke the driving privilege or driver's license of a driver upon receiving a record of the driver's adjudication as a delinquent for or conviction of any of the following offenses, whether the offense is under any state law or local ordinance, when the conviction or adjudication has become final:

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

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

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

(4) any felony in the commission of which a motor vehicle is used;

(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; or

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

B. Except as provided in the Ignition Interlock Licensing Act and in Subsection C, D, E or F of this section, a person whose driving privilege or driver's license has been revoked under this section shall not be entitled to apply for or receive a new license until one year from the date that the conviction is final and all rights to an appeal have been exhausted.

C. A person who, upon adjudication as a delinquent for driving while under the influence of intoxicating liquor or drugs or a conviction pursuant to Section 66-8-102 NMSA 1978, is subject to revocation of the driving privilege or driver's license under this section for an offense pursuant to which the person was also subject to revocation of the driving privilege or driver's license pursuant to Section 66-8-111 NMSA 1978 shall have 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.]

(1) for a first offender:

(a) one year, if the blood or breath of the person contained an alcohol concentration below sixteen one hundredths;

(b) two years, if the blood or breath of the person contained an alcohol concentration from sixteen one hundredths to below twenty-four one hundredths; and

(c) four years, if the blood or breath of the person contained an alcohol concentration of twenty-four one hundredths or greater;

(2) for a second conviction:

(a) two years, if the blood or breath of the person contained an alcohol concentration below sixteen one hundredths;

(b) four years, if the blood or breath of the person contained an alcohol concentration from sixteen one hundredths to below twenty-four one hundredths; and

(c) the remainder of the offender's life if the blood or breath of the person contained an alcohol concentration of twenty-four one hundredths or greater, subject to a five-year review, as provided in Sections 66-5-5 and 66-8-102 NMSA 1978;

(3) for a third conviction:

(a) three years, if the blood or breath of the person contained an alcohol concentration below sixteen one hundredths; and

(b) the remainder of the offender's life if the blood or breath of the person contained an alcohol concentration of sixteen one hundredths or greater, subject to a five-year review, as provided in Sections 66-5-5 and 66-8-102 NMSA 1978; and

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

D. The division shall apply the license revocation provisions of Subsection C of this section and the provisions of Subsection D of Section 66-5-5 NMSA 1978 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 receipt of an order from a court pursuant to Section 32A-2-19 NMSA 1978 or Subsection G of Section 32A-2-22 NMSA 1978, the division shall revoke the driver's license or driving privileges for a period of time in accordance with these provisions.

F. Upon receipt from a district court of a record of conviction for 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, the division shall revoke the driver's license or driving privileges of the convicted person. A person whose driver's license or driving privilege has been revoked pursuant to the provisions of this subsection shall not be entitled to apply for or receive any new driver's license or driving privilege until one year from the date that the conviction is final and all rights to an appeal have been exhausted."

SECTION 3. Section 66-8-102 NMSA 1978 (being Laws 1953, Chapter 139, Section 54, as amended) is amended to read:

"66-8-102. DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--AGGRAVATED DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--PENALTIES.--

A. It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.

B. 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.

C. It is unlawful for:

(1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or

(2) a person to drive a commercial motor vehicle in this state if the person has an alcohol concentration of four one hundredths or more in the person's blood or breath within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.

D. Aggravated driving under the influence of intoxicating liquor or drugs consists of:

(1) driving a vehicle in this state with an alcohol concentration of sixteen one hundredths or more in the driver's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle;

(2) causing bodily injury to a human being as a result of the unlawful operation of a motor vehicle while driving under the influence of intoxicating liquor or drugs; or

(3) refusing to submit to chemical testing, as provided for in the Implied Consent Act, and in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor or drugs.

E. A first conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($500), or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond ninety days but shall not exceed [one year] four years. Upon a first conviction pursuant to this section, an offender shall be sentenced to not less than twenty-four hours of community service. In addition, the offender may be required to pay a fine of three hundred dollars ($300). The offender shall be ordered by the court to participate in and complete a screening program described in Subsection K of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a "DWI school", approved by the bureau and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail. If an offender fails to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or fails to comply with any other condition of probation, the offender shall be sentenced to not less than an additional forty-eight consecutive hours in jail. Any jail sentence imposed pursuant to this subsection for failure to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or for aggravated driving under the influence of intoxicating liquor or drugs shall not be suspended, deferred or taken under advisement. On a first conviction pursuant to this section, any time spent in jail for the offense prior to the conviction for that offense shall be credited to any term of imprisonment fixed by the court. A deferred sentence pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.

F. A second or third conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($1,000), or both; provided that if the sentence is suspended in whole or in part, the period of probation may extend beyond one year but shall not exceed five years. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence:

(1) upon a second conviction, an offender shall be sentenced to a jail term of not less than ninety-six consecutive hours, not less than forty-eight hours of community service and a fine of five hundred dollars ($500). In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutive hours. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional seven consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement; and

(2) upon a third conviction, an offender shall be sentenced to a jail term of not less than thirty consecutive days, not less than ninety-six hours of community service and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional sixty consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.

G. Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended, deferred or taken under advisement.

H. Upon a fifth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement.

I. Upon a sixth conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement.

J. Upon a seventh or subsequent conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of three years, two years of which shall not be suspended, deferred or taken under advisement.

K. Upon any conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program approved by the department of finance and administration and, if necessary, a treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

L. Upon a second or third conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court:

(1) not less than a twenty-eight-day inpatient, residential or in-custody substance abuse treatment program approved by the court;

(2) not less than a ninety-day outpatient treatment program approved by the court;

(3) a drug court program approved by the court; or

(4) any other substance abuse treatment program approved by the court.

The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

M. Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender in its custody. While the offender is on probation or parole under its supervision, the corrections department shall also provide substance abuse counseling and treatment to the offender or shall require the offender to obtain substance abuse counseling and treatment.

N. Upon a conviction pursuant to this section, an offender shall be required to obtain an ignition interlock license and have an ignition interlock device installed and operating on all motor vehicles driven by the offender, pursuant to rules adopted by the [traffic safety] bureau. Unless determined by the bureau to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. The offender shall operate only those vehicles equipped with ignition interlock devices for:

[(1) a period of one year, for a first offender;

(2) a period of two years, for a second conviction pursuant to this section;

(3) a period of three years, for a third conviction pursuant to this section; or

(4) the remainder of the offender's life, for a fourth or subsequent conviction pursuant to this section.] (1) if a first offender:

(a) one year, if the blood or breath of the person contained an alcohol concentration below sixteen one hundredths;

(b) two years, if the blood or breath of the person contained an alcohol concentration from sixteen one hundredths to below twenty-four one hundredths; and

(c) four years, if the blood or breath of the person contained an alcohol concentration of twenty-four one hundredths or greater;

(2) upon a second conviction pursuant to this section:

(a) two years, if the blood or breath of the person contained an alcohol concentration below sixteen one hundredths;

(b) four years, if the blood or breath of the person contained an alcohol concentration from sixteen one hundredths to below twenty-four one hundredths; and

(3) upon a third conviction pursuant to this section:

(a) three years, if the blood or breath of the person contained an alcohol concentration below sixteen one hundredths; and

(4) upon a fourth or subsequent conviction pursuant to this section, for the remainder of the offender's life, subject to a five-year review, as provided in Section 66-5-5 NMSA 1978 and Subsection P of this section.

O. An offender who refuses to submit to chemical testing at time of arrest under the Implied Consent Act shall be considered to have had a blood or breath alcohol concentration of sixteen one hundredths for the purposes of establishing an ignition interlock requirement period under Subsection N of this section.

[O.] P. Five years from the date of conviction and every five years thereafter, [a fourth or subsequent offender] an offender with a lifetime interlock device requirement may apply to a district court for removal of the ignition interlock device requirement provided in this section and for restoration of a driver's license. A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the license; provided that the offender has not been subsequently convicted of driving a motor vehicle under the influence of intoxicating liquor or drugs. Good cause may include an alcohol screening and proof from the interlock vendor that the person has not had violations of the interlock device.

[P.] Q. An offender who obtains an ignition interlock license and installs an ignition interlock device prior to conviction shall be given credit at sentencing for the time period the ignition interlock device has been in use.

R. An offender who has not installed an ignition interlock device and has not obtained an ignition interlock license shall be required to maintain sobriety and to participate in a court-approved sobriety monitoring program for the same period as the ignition interlock requirement in Subsection N of this section. Sobriety shall be monitored at least daily. After twelve months of monitored sobriety, the court may reduce the frequency of monitoring. Failure to maintain sobriety or to comply with the monitoring program shall result in a jail term of not less than forty-eight hours for each failure to maintain sobriety or to comply with the monitoring program. The jail term may not be served on a community release or an electronic monitoring program. A jail term imposed under this subsection is not limited by the maximum imprisonment terms specified in Subsection E or F of this section. Unless determined by the court to be indigent, the offender shall pay all costs associated with sobriety monitoring. Upon the offender installing an ignition interlock device and obtaining an ignition interlock license, the court may suspend the sobriety maintenance and monitoring requirements. The time spent successfully maintaining sobriety shall be credited toward the time required in Subsection N of this section to have the ignition interlock device and license.

[Q.] S. In the case of a first, second or third offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.

[R.] T. A conviction pursuant to a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States or of a tribe, when that ordinance or law is equivalent to New Mexico law for driving under the influence of intoxicating liquor or drugs, and prescribes penalties for driving under the influence of intoxicating liquor or drugs, shall be deemed to be a conviction pursuant to this section for purposes of determining whether a conviction is a second or subsequent conviction.

[S.] U. In addition to any other fine or fee that may be imposed pursuant to the conviction or other disposition of the offense under this section, the court may order the offender to pay the costs of any court-ordered screening and treatment programs.

[T.] V. With respect to this section and notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation.

[U.] W. As used in this section:

(1) "bodily injury" means an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body; and

(2) "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

(a) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;

(b) has a gross vehicle weight rating of more than twenty-six thousand pounds;

(d) is of any size and is used in the transportation of hazardous materials, which requires the motor vehicle to be placarded under applicable law."

SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.