46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO ALCOHOL; PROHIBITING THE RETAIL SALE OF ALCOHOLIC BEVERAGES TO PERSONS CONVICTED A FOURTH OR SUBSEQUENT TIME OF DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; REQUIRING THE MOTOR VEHICLE DIVISION TO ESTABLISH A DATABASE AND PROCEDURE FOR LICENSED RETAIL LIQUOR DISTRIBUTORS TO DETERMINE IF A PERSON IS PROHIBITED FROM THE RETAIL PURCHASE OF ALCOHOLIC BEVERAGES; ENACTING A NEW SECTION OF THE LIQUOR CONTROL ACT; AMENDING SECTIONS OF THE MOTOR VEHICLE CODE.

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

Section 1. A new section of the Liquor Control Act is enacted to read:

"[NEW MATERIAL] PROHIBITED RETAIL SALES--PENALTIES.--

A. It is a violation of the Liquor Control Act for a person who has had a fourth or subsequent conviction for driving while under the influence of intoxicating liquor or drugs, as provided in Section 66-8-102 NMSA 1978, to purchase alcoholic beverages from a retailer for a period of one year after the completion of the jail term imposed for the conviction.

B. It is a violation of the Liquor Control Act for a licensed retailer to sell alcoholic beverages to a person who has had a fourth or subsequent conviction for driving while under the influence of intoxicating liquor or drugs, as provided in Section 66-8-102 NMSA 1978, for a period of one year after the completion of the jail term imposed for the conviction.

C. A licensed retailer, his employee or agent shall require the purchaser of alcoholic beverages to show identification in the form of a driver's license or identification card. If the driver's license or identification card is issued by this state, the seller shall determine, in a manner established by the motor vehicle division of the taxation and revenue department, if the purchaser is restricted from the purchase of alcoholic beverages as a result of multiple convictions for driving while under the influence of intoxicating liquor or drugs. A licensed retailer, his employee or agent shall be relieved of this requirement if the driver's license or identification card is not issued by this state.

D. A person who gives, loans, sells or delivers an identification card to a person unable to purchase alcoholic beverages under this section with the knowledge that the person intends to use the identification card for the purpose of purchasing alcoholic beverages is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

E. A person who purchases alcoholic beverages for a person unable to purchase alcoholic beverages under this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

Section 2. Section 66-5-15 NMSA 1978 (being Laws 1978, Chapter 35, Section 237, as amended) is amended to read:

"66-5-15. LICENSES ISSUED TO APPLICANTS.--

A. The department shall, upon payment of the required fee, issue to every qualified applicant a driver's license as applied for, which license shall bear the full name, date of birth, New Mexico residence address, [and] a brief description of the licensee and the signature of the licensee. No license shall be valid unless it bears the signature of the licensee.

B. The license shall have a magnetic code, or other marking as determined by the department, that will allow a licensed retailer of alcoholic beverages to determine if the licensee is not authorized to purchase alcoholic beverages as a result of multiple convictions for driving while under the influence of intoxicating liquor or drugs."

Section 3. Section 66-5-23 NMSA 1978 (being Laws 1978, Chapter 35, Section 245, as amended) is amended to read:

"66-5-23. RECORDS TO BE KEPT BY THE DIVISION.--

A. The division shall file every application for a driver's license or a commercial driver's license pursuant to the provisions of the New Mexico Commercial Driver's License Act received by it and shall maintain suitable indexes containing:

(1) all applications denied and, on each, note the reasons for denial;

(2) all applications granted;

(3) the name of every licensee whose license has been suspended or revoked by the division and, after each, note the reasons for the action; and

(4) the name of every licensee who has violated his written promise to appear in court.

B. The division shall also file all abstracts of court records of conviction or reports from the trial courts of this state [received by it], which show [either that] whether a driver is a first offender or a subsequent offender and whether that offender was represented by counsel or waived the right to counsel, [received by it under the laws of this state, with attention to] and shall comply with the provisions of Article III of the Driver License Compact [and in connection therewith]. The division shall maintain convenient records or make suitable notations in order that the individual record of each licensee, showing the convictions of the licensee [in which he has been involved], shall be readily ascertainable and available for the consideration of the division upon any application for renewal of license, in determining if the licensee is prohibited from the purchase of alcoholic beverages and at other suitable times."

Section 4. Section 66-5-405 NMSA 1978 (being Laws 1978, Chapter 35, Section 332, as amended) is amended to read:

"66-5-405. CONTENTS OF CARD.--

A. The identification card shall adequately describe the registrant and bear his picture, which shall show a full face or front view for all registrants. All identification cards of persons under the age of twenty-one years shall have a printed legend indicating that the person is under twenty-one. The identification card shall bear the following statement:

"STATE OF NEW MEXICO IDENTIFICATION

CARD NO.____________

This card is provided solely for the purpose of establishing that the bearer described on the card was not the holder of a New Mexico driver's license as of the date of issuance of this card. This identification card is not a license. ISSUED FOR IDENTIFICATION PURPOSES ONLY.".

B. The identification card shall have a magnetic code, or other marking as determined by the department, that will allow a licensed retailer of alcoholic beverages to determine if the holder is not authorized to purchase alcoholic beverages as a result of multiple convictions for driving while under the influence of intoxicating liquor or drugs."

Section 5. Section 66-8-102 NMSA 1978 (being Laws 1953, Chapter 139, Section 54, as amended) is amended to read:

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

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 him incapable of safely driving a vehicle to drive a vehicle within this state.

C. It is unlawful for a person who has an alcohol concentration of eight one hundredths or more in his blood or breath to drive a vehicle within this state.

D. Aggravated driving while under the influence of intoxicating liquor or drugs consists of a person who:

(1) has an alcohol concentration of sixteen one hundredths or more in his blood or breath while driving a vehicle within this state;

(2) has caused 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) refused 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, was under the influence of intoxicating liquor or drugs.

E. [Every] A person under 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. Upon a first conviction pursuant to this section, an offender may be sentenced to not less than forty-eight hours of community service or 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 H 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 while 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, 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 while 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, [each] an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours, 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 while 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 and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving while 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 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 or subsequent conviction pursuant to this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement.

H. Upon the arrest of a person for driving while under the influence of intoxicating liquor or drugs and having been convicted three or more times previous, a condition for bail, if authorized by the court, shall include the provision that the person shall not purchase alcoholic beverages from a retailer.

[H.] I. 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 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.

[I.] J. Upon a first conviction for aggravated driving while under the influence of intoxicating liquor or drugs pursuant to the provisions of Subsection D of this section, as a condition of probation, an offender shall be required to have an ignition interlock device installed and operating for a period of one year on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If an offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the offender may be in violation of the terms and conditions of his probation.

[J.] K. Upon a first conviction for driving while under the influence of intoxicating liquor or drugs pursuant to the provisions of Subsection A, B or C of this section, as a condition of probation, an offender may be required to have an ignition interlock device installed and operating for a period of one year on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If an offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the offender may be in violation of the terms and conditions of his probation.

[K.] L. Upon any subsequent conviction pursuant to this section, as a condition of probation, a subsequent offender shall be required to have an ignition interlock device installed and operating for a period of at least one year on all motor vehicles driven by the subsequent offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the subsequent offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If a subsequent offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the subsequent offender may be in violation of the terms and conditions of his probation.

[L.] M. 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.

[M.] N. 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 that is equivalent to New Mexico law for driving while under the influence of intoxicating liquor or drugs, and that prescribes penalties for driving while 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.

[N.] O. In addition to any other fine or fee [which] 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.

[O.] P. 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) "conviction" means an adjudication of guilt and does not include imposition of a sentence."

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.