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AN ACT

RELATING TO CRIMINAL LAW; MODIFYING THE CRIME OF DRIVING

UNDER THE INFLUENCE OF INTOXICATING LIQUOR TO ALLOW THREE

HOURS FOR THE ADMINISTRATION OF A CHEMICAL TEST TO DETERMINE

ALCOHOL CONCENTRATION; PROVIDING FOR THE ADMISSIBILITY OF

CHEMICAL TESTS TAKEN MORE THAN THREE HOURS AFTER DRIVING;

ESTABLISHING MINIMUM HOURS FOR COMMUNITY SERVICE; RECONCILING

MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2005;

DECLARING AN EMERGENCY.

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

Section 1. Section 66-8-102 NMSA 1978 (being Laws 1953,

Chapter 139, Section 54, as amended by Laws 2005, Chapter

241, Section 5 and by Laws 2005, Chapter 269, Section 5) 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 the person

incapable of safely driving a vehicle to drive a vehicle

within this state.

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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 while under the influence of

intoxicating liquor or drugs consists of a person who:

(1) drives a vehicle in this state and has

an alcohol concentration of sixteen 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;

(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,

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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. 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 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 while

under the influence of intoxicating liquor or drugs, the

offender shall be sentenced to not less than forty-eight

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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

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

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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 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, 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 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

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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

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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.

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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 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. 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

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conviction pursuant to this section; or

(4) the remainder of the offender's life,

for a fourth or subsequent conviction pursuant to this

section.

O. 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 while 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. 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.

Q. 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 while under the influence of intoxicating liquor

or drugs, and prescribes penalties for driving while under

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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.

R. 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.

S. 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.

T. 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;

(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:

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(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;

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; and

(3) "conviction" means an adjudication of

guilt and does not include imposition of a sentence."

Section 2. Section 66-8-110 NMSA 1978 (being Laws 1978,

Chapter 35, Section 518, as amended by Laws 2003, Chapter 51,

Section 12 and by Laws 2003, Chapter 90, Section 5) is

amended to read:

"66-8-110. 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.

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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 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

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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.

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

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person before sentence is entered in the matter."

Section 3. EMERGENCY.--It is necessary for the public

peace, health and safety that this act take effect

immediately.