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F I S C A L I M P A C T R E P O R T
SPONSOR Foley
ORIGINAL DATE
LAST UPDATED
2/6/07
HB 624
SHORT TITLE DWI Chemical Test Time Limits
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)
Duplicates HB 420
Relates to SB 440, SB 443 and HB 403
SOURCES OF INFORMATION
LFC Files
Responses Received From
Administrative Office of the Courts (AOC)
Department of Health (DOH)
Department of Public Safety (DPS)
Department of Transportation (DOT)
Public Defender Department (PDD)
Sentencing Commission (SC)
SUMMARY
Synopsis of Bill
House Bill 624 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 403
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.
The difference between HB 420 and HB 403 is that the latter also amends NMSA 1978, Section
66-8-110, to allow use in evidence of the BAC results of a test that occurs more than three hours
after the driving and lets the trier (judge or hearing officer) of fact determine what weight to give
the test result, while HB 624 does not address Section 66-8-110.
pg_0002
House Bill 624– Page
2
FISCAL IMPLICATIONS
The long term impact of HB 624 will be to allow existing FTEs at the (SLD) to complete their
required workload of drug testing more efficiently and within acceptable times to meet the needs
of law enforcement and Office of the Medical Investigator (OMI). 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. This bill will help remedy these delays as well as slowing the growth and need for
additional FTEs.
SIGNIFICANT ISSUES
A recent appellate court decision in the State v Day case has changed the way that New Mexico
courts approach DWI so that the prosecutors in a case now must present an expert witness to
“back estimate" what the defendant’s blood alcohol level 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, which provides the expert witness for these cases, has only six expert witnesses to cover
the approximately 18,000 DWI prosecutions occurring each year in NM. In 2006, SLD received
approximately 900 subpoenas for these six individuals to handle, which was beyond their ability.
As a result, many DWI cases had to do without an expert witness. In light of the recent appellate
decision, this jeopardizes the prosecution of DWI cases throughout the state.
Secondly, the back estimation of blood alcohol levels is difficult to do and requires detailed
knowledge of the composition and timing of the defendant’s drinking and/or 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 legislature to 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.
The scientific literature indicates that a chemical test for alcohol taken two hours after the
driving stop provides a good estimate of the alcohol at the time of the traffic stop. A chemical
test for alcohol taken within three hours of the traffic stop will provide an estimate either the
same or slightly lower then the alcohol at the time of the traffic stop. In neither case will the
reading within three hours of the traffic stop overestimate the alcohol level at the time of the
stop.
Approximately 14 other states, as well as Canada, have adopted windows of time for the
chemical test up to four hours after the traffic stop.
The three-hour window proposed by this bill mirrors the three-hour window already present in
the Boating While Intoxicated law, passed by the legislature in 2003 eliminating inconsistencies
between the two laws.
pg_0003
House Bill 624– Page
3
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.
DUPLICATION/ RELATIONSHIP
HB 624 duplicates HB 420
With the exceptions noted, the following bills duplicate SB 443: HB 403, HB 420, and SB 440.
HB 624 differs from SB 443 in that it does not include the requirement that the alcohol
concentration results from alcohol consumed before or while driving, and HB 420 only amends
Section 66-8-102, without also amending Section 66-8-110 as does HB 403. SB 440 is the same
as SB 443, including the amendment of Section 66-8-110, except that SB 440 does not include
the requirement that the alcohol concentration results from alcohol consumed before or during
driving. SB 443 amends Section 66-8-102 exactly as HB 403 does; however, SB 443 does not
amend Section 66-8-110 at all.
OTHER SUBSTANTIVE ISSUES
The concentration of blood-alcohol in the body depends on a number of factors including body
weight, gender, presence of food and the type of food in the stomach when alcohol is consumed,
the quantity and rate at which drinking alcohol occurs, and the rates of alcohol absorption and
metabolism.
For example, the rate at which alcohol is absorbed into the body depends on how quickly the
stomach empties its contents into the intestine. Women absorb and metabolize alcohol
differently from men. Women have a higher BAC after consuming the same amount of alcohol
as men.
Blood alcohol analysis in DWI cases is the attempt to measure the amount of alcohol within the
person’s blood at any given time.
This bill appears to rely on the use of retrograde extrapolation. Retrograde extrapolation is the
process by which someone’s blood alcohol concentration at the time of driving is estimated by
projecting backwards from a later chemical test. This process involves estimating the absorption
and elimination of alcohol in the time period between driving and testing.
The use of this process relies on assumptions regarding the amounts of alcohol and food
consumed and the time taken to consume the alcohol and food. The process also assumes that
absorption of alcohol has been completed and the peak BAC has been reached.
The difficulty in this process is the reasonableness and justifiability of the assumptions made.
When reasonable and justifiable assumptions are made alcohol elimination rates of .015 of blood
alcohol concentration to.020 blood alcohol concentration per hour can be assumed.
pg_0004
House Bill 624– Page
4
In practical terms this means that an individual who has a BAC of .08 three hours after the stop
and arrest will have had a BAC of .04 at the time of the stop. This is calculated as:
BAC Test
First hour
Second hour Third hour
Extrapolated
Measure
.08
- .015
- .015
- .015
= .04
DW/mt