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F I S C A L I M P A C T R E P O R T

SPONSOR Rehm

ORIGINAL DATE

LAST UPDATED

HB 478

SHORT TITLE Chemical Tests & Controlled Substances

SB

ANALYST Wilson

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

(Unknown) Unknown)

Recurring General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Corrections Department (CD)

Department of Health (DOH)

Department of Transportation (DOT)

Public Defender Department (PDD)

SUMMARY

Synopsis of Bill

House Bill 478

amends the DWI statute, NMSA 1978, Section 66-8-102. At present, it is

unlawful to drive a vehicle with a blood alcohol concentration (BAC) of .08 or more. HB 478

makes it unlawful to drive with a .08 BAC as proved by a test given within three hours of driving

the vehicle where the BAC results from alcohol consumed before or while driving the vehicle.

In addition, HB 478 amends Section 66-8-102by adding provisions making it unlawful to drive

while under the influence of a controlled substance, coca and its derivatives, and

methamphetamine.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary will be proportional to the

enforcement of this law and commenced prosecutions. New laws, amendments to existing laws

and new hearings have the potential to increase caseloads in the courts, thus requiring additional

resources to handle the increase.

House Bill 478– Page

2

DOH believes the clarification in this bill will be to allow existing FTEs at the Scientific

Laboratory (SLD) to complete their required workload of drug testing within acceptable times to

meet the needs of law enforcement agencies and the Office of the Medical Investigator. In recent

years, the growing demand for expert witness testimony in DWI cases has diverted manpower

from performing lab analyses and cause delays in results which have adversely affected DWI

prosecution and the issuance of death certificates. Legislators and the Governor have received

complaints about the delays.

SIGNIFICANT ISSUES

A series of appellate cases, reflecting extensive litigation in the district, Bernalillo Metropolitan

and magistrate courts, have addressed the admissibility of BAC test results depending on the

time frame between an accused defendant’s driving and the giving of the test. The most recent

of these cases is State v. Day which reversed the defendant’s DWI conviction despite a BAC of

.08 from a test given 66 minutes after driving on the ground that the State failed to present expert

testimony to relate the .08 BAC to the driving. The appellate court found this result was dictated

by the current state of our DWI legislation, and invited legislative action by stating that the

appellate court had previously suggested the need for legislation on two occasions and courts

will be aided by an effective BAC law. HB 478 appears in part intended to provide such a law.

The statute as written appears to address the difficult scientific issues discussed in Day.

Arguments addressing whether a driver’s BAC was rising or falling at the time of the test are

eliminated by a strict liability offense for having a BAC of .08 within three hours of driving as

long as no alcohol was consumed after the driving.

The recent appellate court decision in the Day case now requires that the prosecutors in a DWI

case must present an expert witness to “back estimate" what the defendant’s blood alcohol was at

the actual time of the traffic stop. This is a problem for two reasons. First, the Scientific

Laboratory Division (SLD) of the DOH provides the expert witness for these cases, has they only

have six expert witnesses to cover the approximately 18,000 DWI prosecutions occurring each

year in New Mexico. In 2006, SLD received approximately 900 subpoenas for these six

individuals to handle, which was beyond their ability to handle. As a result, many DWI cases had

to do without an expert. In light of the recent appellate decision, this jeopardizes the prosecution

of DWI cases throughout New Mexico.

Secondly, the back estimation of blood alcohol levels is difficult and requires detailed knowledge

of the composition and timing of the defendant’s drinking and eating prior to the arrest. Because

providing this information to the prosecutor and expert can be viewed as self-incrimination,

defendants are not required to provide this information, which prevents the expert witness from

back estimating the alcohol level at the time of the traffic stop. This interferes with prosecution

of the case.

Twice in the past three years, the New Mexico courts have asked that the New Mexico

Legislature address this issue in the law. This bill will do so and will eliminate the need for

expert witnesses from SLD in approximately 90% of the alcohol DWI prosecutions in the state.

Approximately 14 other states, as well as Canada, have adopted “windows" of time for the

chemical test with windows up to 4 hours after the traffic stop.

House Bill 478– Page

3

Finally, the three-hour “window" of HB 478 mirrors the three-hour window already present in

the New Mexico’s Boating While Intoxicated" law, passed by the New Mexico Legislature in

2003, eliminating inconsistencies between the two laws.

The existing DWI law states that it is unlawful for a person who is under the influence of any

drug to a degree that renders him/her incapable of safely driving a vehicle within this state. The

list of specified controlled substances for which HB478 makes it illegal to drive while under

their influence, provides and exception to the unlawful act, by excluding such specified drugs

that are obtained as authorized by the controlled substances act. Thus, a driver under the

influence of these drugs, who obtained them legally, will no longer be violating the DWI law.

DOT notes that the Traffic Safety Bureau is statutorily responsible for reducing motor vehicle

crashes, injuries, and deaths. If this issue is not resolved, it could create issues for the

adjudication of DWI cases. This could ultimately affect crashes, injuries, and deaths as a result

of driving while impaired.

In addition, the DOT provides funding to the SLD for training as well as funding to the

Albuquerque Police Department for the Statewide Drug Recognition Expert program. It is

difficult to identify a per se limit for controlled substances. It appears this bill will not allow any

amount of a controlled substance while driving. This could solve the problem of the difficultly

of identifying a per se limit for controlled substances while driving.

ADMINISTRATIVE IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary will be proportional to the

enforcement of this law and commenced prosecutions. New laws, amendments to existing laws

and new hearings have the potential to increase caseloads in the courts, thus requiring additional

resources to handle the increase.

The long term impact of this bill will be to allow existing FTEs at SLD to complete their

required workload of drug testing within acceptable times to meet the needs of law enforcement

agencies and the Office of the Medical Investigator. In recent years, the growing demand for

expert witness testimony in DWI cases has diverted manpower from performing lab analyses and

cause delays in results which have adversely affected DWI prosecution and the issuance of death

certificates. Legislators and the Governor have received complaints about the delays.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

The following bills largely duplicate, but in part conflict with HB 478: HB 403, HB 420: SB 440,

and SB 443. None of those bills add controlled substances, cocaine or methamphetamine to

Section 66-8-102.

DW/csd