SB0613

SENATE BILL 613

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

INTRODUCED BY

Daniel A. Ivey-Soto and Stephanie Garcia Richard

AN ACT

RELATING TO DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; RECOMPILING SECTIONS OF THE MOTOR VEHICLE CODE; CREATING THE DRIVING UNDER THE INFLUENCE CODE AND THE DUI ACT; REPEALING SECTIONS OF LAW.

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

SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Driving Under the Influence Code".

SECTION 2. [NEW MATERIAL] DEFINITION--"BODILY INJURY".--As used in the Driving Under the Influence Code, "bodily injury" means an injury to a person that is not likely to cause death or great bodily harm to the person but causes painful temporary disfigurement or temporary loss or impairment of the functions of a member or organ of the person's body.

SECTION 3. [NEW MATERIAL] DEFINITION--"BUREAU".--As used in the Driving Under the Influence Code, "bureau" means the traffic safety bureau of the department of transportation.

SECTION 4. [NEW MATERIAL] DEFINITION--"COMBINATION".--As used in the Driving Under the Influence Code, "combination" means "combination" as defined in the Motor Vehicle Code.

SECTION 5. [NEW MATERIAL] DEFINITION--"COMMERCE".--As used in the Driving Under the Influence Code, "commerce" means "commerce" as defined in the Motor Vehicle Code.

SECTION 6. [NEW MATERIAL] DEFINITION--"COMMERCIAL MOTOR VEHICLE".--As used in the Driving Under the Influence Code, "commercial motor vehicle" means "commercial motor vehicle" as defined in the Motor Vehicle Code.

SECTION 7. [NEW MATERIAL] DEFINITION--"CONTROLLED SUBSTANCE".--As used in the Driving Under the Influence Code, "controlled substance" means a substance defined in Section 30-31-2 NMSA 1978 as a controlled substance.

SECTION 8. [NEW MATERIAL] DEFINITION--"CONVICTION".--As used in the Driving Under the Influence Code, "conviction":

A. means:

(1) a finding of guilt in the trial court in regard to which the violator has waived or exhausted all rights to appeal;

(2) a plea of guilty or nolo contendere accepted by the court; or

(3) an unvacated forfeiture of bail or collateral deposited to secure a person's appearance in court; and

B. does not include a conditional discharge as provided in Section 31-20-13 NMSA 1978 or a deferred sentence when the terms of the deferred sentence are met.

SECTION 9. [NEW MATERIAL] DEFINITION--"DENIED".--As used in the Driving Under the Influence Code, "denied" means the department has refused to issue an instruction permit, driver's license or provisional license pursuant to the provisions of Subsection D or E of Section 66-5-5 NMSA 1978.

SECTION 10. [NEW MATERIAL] DEFINITION--"DEPARTMENT".--As used in the Driving Under the Influence Code, "department" means the taxation and revenue department, the secretary of taxation and revenue or any employee of the department exercising authority lawfully delegated to that employee by the secretary.

SECTION 11. [NEW MATERIAL] DEFINITION--"DRIVER".--As used in the Driving Under the Influence Code, "driver" means "driver" as defined in the Motor Vehicle Code.

SECTION 12. [NEW MATERIAL] DEFINITION--"DRIVER'S LICENSE".--As used in the Driving Under the Influence Code, "driver's license" means "driver's license" as defined in the Motor Vehicle Code.

SECTION 13. [NEW MATERIAL] DEFINITION--"FIRST OFFENDER".--As used in the Driving Under the Influence Code, "first offender" means a person who for the first time pursuant to state or federal law or a municipal ordinance or a tribal law has been adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or any other drug that renders the person incapable of safely driving a motor vehicle, regardless of whether the person's sentence was suspended or deferred.

SECTION 14. [NEW MATERIAL] DEFINITION--"HAZARDOUS MATERIAL".--As used in the Driving Under the Influence Code, "hazardous material" means "hazardous material" as defined in the Motor Vehicle Code.

SECTION 15. [NEW MATERIAL] DEFINITION--"IGNITION INTERLOCK DEVICE".--As used in the Driving Under the Influence Code, "ignition interlock device" means a device, approved by the bureau, that prevents the operation of a motor vehicle by an intoxicated or impaired person.

SECTION 16. [NEW MATERIAL] DEFINITION--"IGNITION INTERLOCK LICENSE".--As used in the Driving Under the Influence Code, "ignition interlock license" means a driver's license issued to a person by the department that allows that person to operate a motor vehicle with an ignition interlock device after that person's driving privilege or driver's license has been revoked or denied. The department shall clearly mark an ignition interlock license to distinguish it from other driver's licenses.

SECTION 17. [NEW MATERIAL] DEFINITION--"LICENSE".--As used in the Driving Under the Influence Code, "license", without modification, means "license" as defined in the Motor Vehicle Code.

SECTION 18. [NEW MATERIAL] DEFINITION--"MAIL".--As used in the Driving Under the Influence Code, "mail" means an item properly addressed with postage prepaid delivered by the United States postal service or any other public or private enterprise primarily engaged in the transport and delivery of letters, packages and other parcels.

SECTION 19. [NEW MATERIAL] DEFINITION--"MOTOR VEHICLE".--As used in the Driving Under the Influence Code, "motor vehicle" means "motor vehicle" as defined in the Motor Vehicle Code.

SECTION 20. [NEW MATERIAL] DEFINITION--"NONRESIDENT".--As used in the Driving Under the Influence Code, "nonresident" means every person who is not a resident of this state.

SECTION 21. [NEW MATERIAL] DEFINITION--"NONRESIDENT'S OPERATING PRIVILEGE".--As used in the Driving Under the Influence Code, "nonresident's operating privilege" means "nonresident's operating privilege" as defined in the Motor Vehicle Code.

SECTION 22. [NEW MATERIAL] DEFINITION--"POLICE OFFICER".--As used in the Driving Under the Influence Code,

"police officer" means every officer authorized to direct or regulate traffic or to make arrests for violations of the Motor Vehicle Code or the Driving Under the Influence Code.

SECTION 23. [NEW MATERIAL] DEFINITION--"REVOCATION".--As used in the Driving Under the Influence Code, "revocation" means that the driver's license and privilege to drive a motor vehicle on the public highways are terminated and shall not be renewed or restored, except as provided in the Driving Under the Influence Code.

SECTION 24. [NEW MATERIAL] DEFINITION--"REVOKED".--As used in the Driving Under the Influence Code, "revoked" means the department, pursuant to the provisions of Section 66-5-29 NMSA 1978 or Section 55 of the Driving Under the Influence Code, has terminated a person's driving privilege or driver's license for driving while under the influence of intoxicating liquor or drugs.

SECTION 25. [NEW MATERIAL] DEFINITION--"SUBSEQUENT OFFENDER".--As used in the Driving Under the Influence Code, "subsequent offender" means a person who was previously a first offender and who again, under state law, federal law or a municipal ordinance or a tribal law, has been adjudicated guilty of the charge of driving a motor vehicle while under the influence of intoxicating liquor or any drug that rendered the person incapable of safely driving a motor vehicle, regardless of whether the person's sentence was suspended or deferred.

SECTION 26. [NEW MATERIAL] DEFINITION--"SUSPENSION".--As used in the Driving Under the Influence Code, "suspension" means "suspension" as defined in the Motor Vehicle Code.

SECTION 27. [NEW MATERIAL] DEFINITION--"VEHICLE".--As used in the Driving Under the Influence Code, "vehicle" means "vehicle" as defined in the Motor Vehicle Code.

SECTION 28. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 28 through 49 of the Driving Under the Influence Code may be cited as the "DUI Act"."

SECTION 29. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] DEFINITION.--As used in the DUI Act, "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;

C. is designed to transport sixteen or more passengers, including the driver; or

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 30. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--

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 a drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state."

SECTION 31. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] UNLAWFUL ALCOHOL CONCENTRATIONS.--It is unlawful for a person to drive:

A. 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

B. 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."

SECTION 32. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] AGGRAVATED DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--Aggravated driving under the influence of intoxicating liquor or drugs consists of:

A. 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;

B. 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 C. 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."

SECTION 33. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] FIRST CONVICTION FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--

A. A first conviction for driving under the influence of intoxicating liquor or drugs 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.

B. Upon a first conviction pursuant to this section, an offender shall be sentenced to not less than twenty-four hours of community service.

C. The offender may be required to pay a fine of three hundred dollars ($300).

D. The offender shall be ordered by the court to participate in and complete a screening program described in Section 39 of the Driving Under The Influence Code 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.

E. 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.

F. 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.

G. A jail sentence imposed pursuant to this section 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.

H. On a first conviction for driving under the influence of intoxicating liquor or drugs, time spent in jail for the offense prior to the conviction for that offense shall be credited to a 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."

SECTION 34. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] SECOND AND THIRD CONVICTIONS FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--

A. A second or third conviction for driving under the influence of intoxicating liquor or drugs 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.

B. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence, upon a second conviction:

(1) 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);

(2) 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; and

(3) 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.

C. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence, upon a third conviction:

(1) 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);

(2) 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; and

D. A penalty imposed pursuant to Subsection B or C of this section shall not be suspended or deferred or taken under advisement.

E. Upon a second or third conviction for driving under the influence of intoxicating liquor or drugs, 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.

F. The requirements imposed pursuant to Subsection E of this section shall not be suspended, deferred or taken under advisement."

SECTION 35. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] FOURTH CONVICTION FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--Upon a fourth conviction for driving under the influence of intoxicating liquor or drugs, 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."

SECTION 36. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] FIFTH CONVICTION FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--Upon a fifth conviction for driving under the influence of intoxicating liquor or drugs, 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."

SECTION 37. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] SIXTH CONVICTION FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--Upon a sixth conviction for driving under the influence of intoxicating liquor or drugs, 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."

SECTION 38. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] SEVENTH OR SUBSEQUENT CONVICTION FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--Upon a seventh or subsequent conviction for driving under the influence of intoxicating liquor or drugs, 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."

SECTION 39. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] ALCOHOL OR DRUG ABUSE SCREENING REQUIRED.--Upon a conviction for driving under the influence of intoxicating liquor or drugs, 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 section shall not be suspended, deferred or taken under advisement."

SECTION 40. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] SUBSTANCE ABUSE AND COUNSELING TO BE PROVIDED BY THE CORRECTIONS DEPARTMENT UPON A FELONY CONVICTION.--Upon a felony conviction for driving under the influence of intoxicating liquor or drugs, 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."

SECTION 41. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] IGNITION INTERLOCK REQUIREMENT.--

A. Upon a conviction for driving under the influence of intoxicating liquor or drugs, 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 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 the DUI Act;

(3) a period of three years for a third conviction pursuant to the DUI Act; or

(4) the remainder of the offender's life for a fourth or subsequent conviction pursuant to the DUI Act.

B. Five years from the date of conviction and every five years thereafter, a fourth or subsequent offender 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.

C. 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."

SECTION 42. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] CONVICTIONS IN OTHER JURISDICTIONS.--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."

SECTION 43. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] OFFENDER MAY BE ORDERED TO PAY COSTS OF SCREENING OR TREATMENT.--In addition to any other fine or fee that may be imposed pursuant to the conviction or other disposition of the offense under the Driving Under the Influence Code, the court may order the offender to pay the costs of a court-ordered screening and treatment programs."

SECTION 44. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] COURT MAY IMPOSE ORIGINAL SENTENCE AND NOT GIVE CREDIT FOR TIME ON PROBATION.--With respect to the Driving Under the Influence Code 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."

SECTION 45. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] MAGISTRATE COURT CONCURRENT JURISDICTION.--In the case of a first, second or third offense pursuant to the DUI Act, the magistrate court has concurrent jurisdiction with district courts to try the offender."

SECTION 46. Section 66-8-102.1 NMSA 1978 (being Laws 1982, Chapter 102, Section 2, as amended by Laws 2003, Chapter 51, Section 11 and by Laws 2003, Chapter 90, Section 4) is recompiled in the Driving Under the Influence Code and is amended to read:

"GUILTY PLEAS--LIMITATIONS.--Where the complaint or information alleges a violation of [Section 66-8-102 NMSA 1978] the DUI Act, any plea of guilty thereafter entered in satisfaction of the charges shall include at least a plea of guilty to the violation [of one] of the [subsections of Section 66-8-102 NMSA 1978] sections of the DUI Act, and no other disposition by plea of guilty to any other charge in satisfaction of the charge shall be authorized if the results of a test performed pursuant to the Implied Consent Act disclose that the blood or breath of the person charged contains an alcohol concentration of:

A. eight one hundredths or more; or

B. four one hundredths or more if the person charged is driving a commercial motor vehicle."

SECTION 47. Section 66-8-102.2 NMSA 1978 (being Laws 1993, Chapter 66, Section 16) is recompiled in the Driving Under the Influence Code and is amended to read:

"MUNICIPAL AND COUNTY ORDINANCES--UNLAWFUL ALCOHOL CONCENTRATION LEVEL FOR DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.--No municipal or county ordinance prohibiting driving while under the influence of intoxicating liquor or drugs shall be enacted that provides for an unlawful alcohol concentration level that is different than the alcohol concentration levels provided in [Subsections C and D of Section 66-8-102 NMSA 1978] Sections 31 and 32 of the Driving Under the Influence Code."

SECTION 48. Section 66-8-102.4 NMSA 1978 (being Laws 2005, Chapter 269, Section 8) is recompiled in the Driving Under the Influence Code and is amended to read:

"UNIFORM POLICE REPORTS AND PROCEDURES FOR DWI ARRESTS.--

A. The department of public safety, in collaboration with the [motor vehicle] division [of the taxation and revenue department] and the [traffic safety] bureau [of the department of transportation], shall develop and periodically review and update standard arrest reports and procedures to be used by law enforcement officers when making an arrest for a violation of the [provisions of Section 66-8-102 NMSA 1978] DUI Act or similar municipal or county ordinances.

B. A law enforcement officer making an arrest for a violation of the [provisions of Section 66-8-102 NMSA 1978] DUI Act or of similar municipal or county ordinances shall use the standard arrest reports and procedures developed and approved by the department of public safety in accordance with the provisions of Subsection A of this section."

SECTION 49. A new section of the Driving Under the Influence Code is enacted to read:

"[NEW MATERIAL] BLOOD ALCOHOL TESTS DIRECTED BY POLICE, JUDICIAL OR PROBATION OFFICER--PERSONS QUALIFIED TO PERFORM TESTS--RELIEF FROM CIVIL AND CRIMINAL LIABILITY--ARREST OR TEST ONLY IN PERFORMANCE OF OFFICIAL DUTIES AUTHORIZED BY LAW.--

A. Only a physician or licensed professional, or a practical nurse, laboratory technician or technologist employed by a hospital or physician, shall withdraw blood from a person in the performance of a blood alcohol test. No such physician, nurse, technician or technologist who withdraws blood from a person in the performance of a blood alcohol test that has been directed by a police officer, or by a judicial or probation officer, shall be held liable in a civil or criminal action for assault, battery, false imprisonment or the conduct of a police officer, except for negligence, nor shall a person assisting in the performance of such a test, or a hospital wherein blood is withdrawn in the performance of such a test, be subject to civil or criminal liability for assault, battery, false imprisonment or the conduct of a police officer, except for negligence.

B. Nothing in this section is intended to authorize a police officer, or a judicial or probation officer, to make an arrest or to direct the performance of a blood alcohol test, except in the performance of that person's official duties and as otherwise authorized by law."

SECTION 50. Section 66-8-105 NMSA 1978 (being Laws 1978, Chapter 35, Section 513) is recompiled in the Driving Under the Influence Code and is amended to read:

"IMPLIED CONSENT ACT--SHORT TITLE.--Sections [64-8-105 through 64-8-112 NMSA 1953] 50 through 57 of the Driving Under the Influence Code may be cited as the "Implied Consent Act"."

SECTION 51. Section 66-8-107 NMSA 1978 (being Laws 1978, Chapter 35, Section 515, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"IMPLIED CONSENT TO SUBMIT TO CHEMICAL TEST.--

A. Any person who operates a motor vehicle within this state shall be deemed to have given consent, subject to the provisions of the Implied Consent Act:

(1) to chemical tests of [his] that person's breath or blood or both that are approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978 as determined by a law enforcement officer; or

(2) for the purpose of determining the drug or alcohol content of [his] the person's blood if the person is arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug.

B. A test of blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978, shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor or drug."

SECTION 52. Section 66-8-108 NMSA 1978 (being Laws 1978, Chapter 35, Section 516) is recompiled in the Driving Under the Influence Code and is amended to read:

"CONSENT OF PERSON INCAPABLE OF REFUSAL NOT WITHDRAWN.--Any person who is dead, unconscious or otherwise in a condition rendering [him] the person incapable of refusal shall be deemed not to have withdrawn the consent provided by Section [64-8-107 NMSA 1953] 51 of the Driving Under the Influence Code, and the test or tests designated by the law enforcement officer may be administered."

SECTION 53. Section 66-8-109 NMSA 1978 (being Laws 1978, Chapter 35, Section 517, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"ADMINISTRATION OF CHEMICAL TEST--PAYMENT OF COSTS--ADDITIONAL TESTS.--

A. Only the persons authorized by Section

[66-8-103 NMSA 1978] 49 of the Driving Under the Influence Code shall withdraw blood from any person for the purpose of determining its alcohol or drug content. This limitation does not apply to the taking of samples of breath.

B. The person tested shall be advised by the law enforcement officer of the person's right to be given an opportunity to arrange for a physician, licensed professional or practical nurse or laboratory technician or technologist who is employed by a hospital or physician of [his] the person's own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer.

C. Upon the request of the person tested, full information concerning the test performed at the direction of the law enforcement officer shall be made available to [him] the person as soon as it is available from the person performing the test.

D. The law enforcement agency represented by the law enforcement officer at whose direction the chemical test is performed shall pay for the chemical test.

E. If a person exercises [his] the person's right under Subsection B of this section to have a chemical test performed upon [him] the person by a person of [his] the person's own choosing, the cost of that test shall be paid by the law enforcement agency represented by the law enforcement officer at whose direction a chemical test was administered under Section [66-8-107 NMSA 1978] 51 of the Driving Under the Influence Code."

SECTION 54. Section 66-8-110 NMSA 1978 (being Laws 1978, Chapter 35, Section 518, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"USE OF TESTS IN CRIMINAL ACTIONS OR CIVIL ACTIONS--LEVELS OF INTOXICATION--MANDATORY CHARGING.--

A. The results of a test performed pursuant to the Implied Consent Act may be introduced into evidence in any civil action or criminal action arising out of the acts alleged to have been committed by the person tested for driving a motor vehicle while under the influence of intoxicating liquor or drugs.

B. When the blood or breath of the person tested contains:

(1) an alcohol concentration of less than four one hundredths, it shall be presumed that the person was not under the influence of intoxicating liquor;

(2) an alcohol concentration of at least four one hundredths but less than eight one hundredths:

(a) no presumption shall be made that the person either was or was not under the influence of intoxicating liquor, unless the person is driving a commercial motor vehicle; and

(b) the amount of alcohol in the person's blood or breath may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor; or

(3) an alcohol concentration of four one hundredths or more and the person is driving a commercial vehicle, it shall be presumed that the person is under the influence of intoxicating liquor.

C. The arresting officer shall charge the person tested with a violation of [Section 66-8-102 NMSA 1978] the DUI Act when the blood or breath of the person contains an alcohol concentration of:

(1) eight one hundredths or more; or

(2) four one hundredths or more if the person is driving a commercial motor vehicle.

D. When a person is less than twenty-one years of age and the blood or breath of the person contains an alcohol concentration of two one hundredths or more, the person's driving privileges shall be revoked pursuant to the provisions of the Implied Consent Act.

E. If the test performed pursuant to the Implied Consent Act is administered more than three hours after the person was driving a vehicle, the test result may be introduced as evidence of the alcohol concentration in the person's blood or breath at the time of the test and the trier of fact shall determine what weight to give the test result for the purpose of determining a violation of [Section 66-8-102 NMSA 1978] the DUI Act.

F. The determination of alcohol concentration shall be based on the grams of alcohol in one hundred milliliters of blood or the grams of alcohol in two hundred ten liters of breath.

G. The presumptions in Subsection B of this section do not limit the introduction of other competent evidence concerning whether the person was under the influence of intoxicating liquor.

H. If a person is convicted of driving a motor vehicle while under the influence of intoxicating liquor, the trial judge shall inquire into the past driving record of the person before sentence is entered in the matter."

SECTION 55. Section 66-8-111 NMSA 1978 (being Laws 1978, Chapter 35, Section 519, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"REFUSAL TO SUBMIT TO CHEMICAL TESTS--TESTING--GROUNDS FOR REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE.--

A. If a person under arrest for violation of an offense enumerated in the Motor Vehicle Code or the Driving Under the Influence Code refuses upon request of a law enforcement officer to submit to chemical tests designated by the law enforcement agency as provided in Section [66-8-107 NMSA 1978] 51 of the Driving Under the Influence Code, none shall be administered except when a municipal judge, magistrate or district judge issues a search warrant authorizing chemical tests as provided in Section [66-8-107 NMSA 1978] 51 of the Driving Under the Influence Code upon finding in a law enforcement officer's written affidavit that there is probable cause to believe that the person has driven a motor vehicle while under the influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of another person, or there is probable cause to believe that the person has committed a felony while under the influence of alcohol or a controlled substance and that chemical tests as provided in Section [66-8-107 NMSA 1978] 51 of the Driving Under the Influence Code will produce material evidence in a felony prosecution.

B. The department, upon receipt of a statement signed under penalty of perjury from a law enforcement officer stating the officer's reasonable grounds to believe the arrested person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs and that, upon request, the person refused to submit to a chemical test after being advised that failure to submit could result in revocation of the person's privilege to drive, shall revoke the person's New Mexico driver's license or any nonresident operating privilege for a period of one year or until all conditions for license reinstatement are met, whichever is later.

C. The department, upon receipt of a statement signed under penalty of perjury from a law enforcement officer stating the officer's reasonable grounds to believe the arrested person had been driving a motor vehicle within this state while under the influence of intoxicating liquor and that the person submitted to chemical testing pursuant to Section [66-8-107 NMSA 1978] 51 of the Driving Under the Influence Code 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, shall revoke the person's license or permit to drive or [his] the person's nonresident operating privilege for a period of:

(1) six months or until all conditions for license reinstatement are met, whichever is later, if the person is twenty-one years of age or older;

(2) one year or until all conditions for license reinstatement are met, whichever is later, if the person was less than twenty-one years of age at the time of the arrest, notwithstanding any provision of the Children's Code; or

(3) one year or until all conditions for license reinstatement are met, whichever is later, if the [person has previously had his] person's license has been revoked previously pursuant to the provisions of this section, notwithstanding the provisions of Paragraph (1) of this subsection.

D. The determination of alcohol concentration shall be based on the grams of alcohol in one hundred milliliters of blood or the grams of alcohol in two hundred ten liters of breath.

E. If the person subject to the revocation provisions of this section is a resident or will become a resident within one year and is without a license to operate a motor vehicle in this state, the department shall deny the issuance of a license to [him] the person for the appropriate period of time as provided in Subsections B and C of this section.

F. A statement signed by a law enforcement officer, pursuant to the provisions of Subsection B or C of this section, shall be sworn to by the officer or shall contain a declaration substantially to the effect: "I hereby declare under penalty of perjury that the information given in this statement is true and correct to the best of my knowledge.". The statement may be signed and submitted electronically in a manner and form approved by the department. A law enforcement officer who signs a statement knowing that the statement is untrue in any material issue or matter is guilty of perjury as provided in Section 66-5-38 NMSA 1978."

SECTION 56. 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 recompiled in the Driving Under the Influence Code and is amended to read:

"LAW ENFORCEMENT OFFICER AGENT FOR DEPARTMENT--WRITTEN NOTICE OF REVOCATION AND RIGHT TO 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] 51 of the Driving Under the Influence Code shall serve immediate written notice of revocation and of right to a hearing 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 hearing pursuant to Section [66-8-112 NMSA 1978] 57 of the Driving Under the Influence Code, valid until the date the department issues the 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] 55 of the Driving Under the Influence Code."

SECTION 57. 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 recompiled in the Driving Under the Influence Code and is amended to read:

"REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE--NOTICE--EFFECTIVE DATE--HEARING--HEARING COSTS--REVIEW.--

A. The effective date of revocation pursuant to Section [66-8-111 NMSA 1978] 55 of the Driving Under the Influence Code 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 hearing pursuant to this section, the date that the department issues the order following that hearing. The date of notice of revocation is:

(1) the date the law enforcement officer serves written notice of revocation and of right to a hearing pursuant to Section [66-8-111.1 NMSA 1978] 56 of the Driving Under the Influence Code; 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 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] the person's 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.

E. 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. The department 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. If one or more of the elements set forth in Paragraphs (1) through (4) of Subsection F of this section are not found by the department, the person's license shall not be revoked.

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. 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 58. Section 66-5-501 NMSA 1978 (being Laws 2003, Chapter 239, Section 1) is recompiled in the Driving Under the Influence Code and is amended to read:

"SHORT TITLE.--Sections [1 through 4] 58 through 61 of [this act] the Driving Under the Influence Code may be cited as the "Ignition Interlock Licensing Act"."

SECTION 59. Section 66-5-503 NMSA 1978 (being Laws 2003, Chapter 239, Section 3, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"IGNITION INTERLOCK LICENSE--REQUIREMENTS.--

A. A person whose driving privilege or driver's license has been revoked or denied or who has not met the ignition interlock license requirement as a condition of reinstatement pursuant to Section 66-5-33.1 NMSA 1978 may apply for an ignition interlock license from the [division] department.

B. An applicant for an ignition interlock license shall:

(1) provide proof of installation of the ignition interlock device by [a traffic safety bureau-approved] an ignition interlock installer approved by bureau on any vehicle the applicant drives; and

(2) sign an affidavit acknowledging that:

(a) operation by the applicant of any vehicle that is not equipped with an ignition interlock device is subject to penalties for driving with a revoked license;

(b) tampering or interfering with the proper and intended operation of an ignition interlock device may subject the applicant to penalties for driving with a license that was revoked for driving under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act; and

(c) the applicant shall maintain the ignition interlock device and keep up-to-date records in the motor vehicle showing required service and calibrations and be able to provide the records upon request.

C. A person who has been convicted of homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or drugs, as provided in Section 66-8-101 NMSA 1978, shall not be issued an ignition interlock license unless the person has completed serving the sentence for that crime, including any period of probation and parole."

SECTION 60. Section 66-5-504 NMSA 1978 (being Laws 2003, Chapter 239, Section 4, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"PENALTIES.--

A. A person who is issued an ignition interlock license and operates a vehicle that is not equipped with an ignition interlock device is driving with a license that was revoked for driving under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act and may be subject to the penalties provided in Section 66-5-39 NMSA 1978.

B. A person who is issued an ignition interlock license and who knowingly and deliberately tampers or interferes with or causes another to tamper or interfere with the proper and intended operation of an ignition interlock device may be subject to the penalties for driving with a license that was revoked for driving under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act as provided in Section 66-5-39 NMSA 1978."

SECTION 61. Section 66-8-102.3 NMSA 1978 (being Laws 2002, Chapter 82, Section 2, as amended) is recompiled in the Driving Under the Influence Code and is amended to read:

"IMPOSING A FEE--INTERLOCK DEVICE FUND CREATED.--

A. A fee is imposed on a person convicted of driving under the influence of intoxicating liquor or drugs in violation of [Section 66-8-102 NMSA 1978] the DUI Act or adjudicated as a delinquent on the basis of Subparagraph (a) of Paragraph (1) of Subsection A of Section 32A-2-3 NMSA 1978 or a person whose driver's license is revoked pursuant to the provisions of the Implied Consent Act, in an amount determined by rule of the [traffic safety] bureau [of the department of transportation] not to exceed one hundred dollars ($100) but not less than fifty dollars ($50.00) for each year the person is required to operate only vehicles equipped with an ignition interlock device in order to ensure the solvency of the interlock device fund. The fee shall not be imposed on an indigent person.

B. The "interlock device fund" is created in the state treasury. The fee imposed pursuant to Subsection A of this section shall be collected by the [motor vehicle division of the taxation and revenue] department and deposited in the interlock device fund.

C. All money in the interlock device fund is appropriated to the [traffic safety] bureau [of the department of transportation] to cover part of the costs of installing, removing and leasing ignition interlock devices for indigent people who are required, pursuant to convictions [under Section 66-8-102 NMSA 1978] for violations of the DUI Act or adjudications on the basis of Subparagraph (a) of Paragraph (1) of Subsection A of Section 32A-2-3 NMSA 1978 or driver's license revocations pursuant to the provisions of the Implied Consent Act or as a condition of parole, to install those devices in their vehicles. Provided that money is available in the interlock device fund, the [traffic safety] bureau shall pay, for one vehicle per offender, up to fifty dollars ($50.00) for the cost of installation, up to fifty dollars ($50.00) for the cost of removal and up to thirty dollars ($30.00) monthly for verified active usage of the interlock device. The [traffic safety] bureau shall not pay any amount above what an offender would be required to pay for the installation, removal or usage of an interlock device.

D. Indigency shall be determined by the [traffic safety] bureau based on proof of enrollment in one or more of the following types of public assistance:

(1) temporary assistance for needy families;

(2) general assistance;

(3) the supplemental nutritional assistance program, also known as "food stamps";

(4) supplemental security income;

(5) the federal food distribution program on Indian reservations; or

(6) other criteria approved by the traffic safety bureau.

E. Any balance remaining in the interlock device fund shall not revert to the general fund at the end of any fiscal year.

F. The interlock device fund shall be administered by the [traffic safety] bureau [of the department of transportation]. No more than ten percent of the money in the interlock device fund in any fiscal year shall be expended by the [traffic safety] bureau [of the department of transportation] for the purpose of administering the fund."

SECTION 62. REPEAL.--Sections 66-5-502 and 66-8-102 NMSA 1978 (being Laws 2003, Chapter 239, Section 2 and Laws 1953, Chapter 139, Section 54, as amended) are repealed.

SECTION 63. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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