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

SPONSOR

Maestas

ORIGINAL DATE

LAST UPDATED

2/20/07

HB

1233

SHORT TITLE

DWI Concentrations for Time Periods

SB

ANALYST

C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates, Relates to, Conflicts with, Companion to

HB 1247, SB 443, HB 403, HB 420, SB 440 and HB 1247.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Bernalillo County Metropolitan Court (BCMC)

Public Defenders (PD)

New Mexico Department of Transportation (NMDOT)

Administrative Office of the District Attorneys (AODA)

Department of Health (DOH)

SUMMARY

Synopsis of Bill

Section 66-8-102 NMSA 1978 currently provides that it is unlawful to operate a vehicle with an

alcohol concentration in one’s blood or breath (“BAC") of .08 or more. HB 1233 would amend

that statute as follows:

A. HB 1233 would make it unlawful to drive a motor vehicle if the operator has: a BAC of .08

at the time of driving, .09 or more within one (1) hour of driving and the alcohol

concentration results from alcohol consumed before or while driving; a BAC of .10 or more

within two (2) hours of driving and the alcohol concentration results from alcohol consumed

before or while driving; and a BAC of .11 or more within three (3) hours of driving and the

alcohol concentration results from alcohol consumed before or while driving.

House Bill 1233 – Page

2

B. HB 1233 would make it unlawful to operate a commercial motor vehicle if the operator has:

a BAC of .04 at the time of driving, .05 or more within one (1) hour of driving and the

alcohol concentration results from alcohol consumed before or while driving; a BAC of .06

or more within two (2) hours of driving and the alcohol concentration results from alcohol

consumed before or while driving; and a BAC of .07 or more within three (3) hours of

driving and the alcohol concentration results from alcohol consumed before or while driving.

C. HB 1233 would redefine aggravated driving under the influence as having: a BAC of .16 at

the time of driving, .17 or more within one (1) hour of driving and the alcohol concentration

results from alcohol consumed before or while driving; a BAC of .18 or more within two (2)

hours of driving and the alcohol concentration results from alcohol consumed before or while

driving; and a BAC of .19 or more within three (3) hours of driving and the alcohol

concentration results from alcohol consumed before or while driving.

HB 1233 also amends NMSA 66-8-110 by providing that tests performed under the Implied

Consent Act more than three (3) hours after driving may be introduced as evidence of the alcohol

concentration in the defendant’s blood at the time of the test and the trier of fact can then

determine what weight to give to the test result.

FISCAL IMPLICATIONS

According to the New Mexico Department of Transportation (NMDOT), “federal requirements

mandate states to implement a strict BAC.04 law for Commercial Driver License holders. A bill

was passed in the 2004 Legislative session to bring New Mexico into compliance. However, this

bill would impact the strict BAC .04 provision. If the State does not have this law, the New

Mexico Department of Transportation will be subject to a 5% withholding of Federal

Construction Funds (approximately $10 Million) the first year, and 10% (approximately $20

million) in subsequent years."

The bill would probably result in a minimal to moderate increase in the number of DWI

convictions because the “expanded testing window" will bring more individuals into the scope of

the law. The bill will probably cause a minimal to moderate increase in the Correction

Department’s prison population and probation/parole caseloads. However, is difficult to

estimate just how many new convictions will result if this bill becomes law. The bill does not

make any appropriation to cover any increases in prison population and probation/parole

caseloads that the bill is likely to cause.

SIGNIFICANT ISSUES

In State v. Day

, 140 N.M. 544, 14 P.3d 103 (Ct.App. 2006), the Court of Appeals held that, in

prosecuting DWI cases, the State must introduce evidence regarding BAC of the defendant at the

time the driver was operating the vehicle. The Court rejected the State’s argument that NMSA

66-8-102(C) (1) creates a statutory presumption of intoxication for BAC readings of .08 or

greater when no significant delay occurs between driving and testing and held that a “reasonable

amount of time" and “no significant delay" are much too uncertain for any presumption or for a

rational jury inference of a .08 BAC or more at the time of driving.

House Bill 1233 – Page

3

The Scientific Laboratory Division of the Department of Health (“SLD") has a limited number of

experts available to provide the scientific extrapolation evidence demanded by the Court of

Appeals; therefore, the effective prosecution of DWI cases in New Mexico has been jeopardized

by the holding in Day

.

The Court of Appeals further stated in Day

, however, that the “difficulty of proof in using the

scientific retrograde extrapolation process to prove a BAC at the time of driving is an important

reason why our Legislature should address the need for effective legislation." This legislation is

an attempt on the part of the Legislature to address the issue raised in Day

by eliminating the

need for an expert SLD witness in most DWI prosecutions in the state.

PERFORMANCE IMPLICATIONS

As provided above, if adopted, the bill would address the holding of the Court of Appeals in

State v. Day

and eliminate the need for an expert SLD witness in most DWI prosecutions in the

state.

ADMINISTRATIVE IMPLICATIONS

According to the Administrative Office of the District Attorney, because HB 1233 is

scientifically unsound, the long term impact of HB 1233 would be to make prosecution of DWI

cases based upon per se blood or breath alcohol levels much more difficult, and would probably

have an adverse effect within the State.

HB 1233 proposes a time-dependent increase in legal blood alcohol level for instances when the

alcohol test is taken at 1, 2, and 3 hours after the traffic stop, based upon the idea that blood

alcohol levels decline over time. However, a time-dependent increase is unnecessary, because it

has been documented in refereed scientific journals that blood alcohol concentrations do not

change over a period of 2 hours after the traffic stop for DWI. Between 2 and 3 hours after the

traffic stop, if the alcohol levels change at all from the time of driving, they will decline slightly

by perhaps 0.01-0.02 %. It is only after 2-3 hours that the blood alcohol begins a linear decline

with time. Therefore, adjustment of the legal blood alcohol limits is not necessary within 3 hours

of the traffic stop.

Furthermore, if one wanted to compensate for the physiological decline in blood alcohol levels

over time, one could do it by adjusting the legal blood alcohol downward over time which is the

opposite of what is proposed in HB 1233. The time-dependent adjustment of legal blood alcohol

levels upward proposed by HB 1233 actually has the opposite effect of what is intended by the

sponsor. That is, it effectively increases the legal limit for blood alcohol at the time of driving

above 0.08%. Blood alcohol level has been demonstrated to plateau for at least 2 hours of the

traffic stop, so a time-dependent adjustment over this time period is unnecessary and could be

seriously problematic.

RELATIONSHIP

No other bills duplicate HB 1233.

The following bills relate to HB 1233: SB 443, HB 403, HB 420 and SB 440. However, each of

these bills provides a three hour window for testing after operation of the vehicle without

providing the sliding scale set forth in HB 1233.

House Bill 1233 – Page

4

HB 1247 likewise relates to HB 1233, but provides a two hour window for testing after operation

of the vehicle without providing the sliding scale set forth in HB 1233.

TECHNICAL ISSUES

It will be difficult to “group" DWI defendants into a .09 or .10 or .11 category, etc. Proposed

Section C (1) and (2) seems to categorize all intoxicated drivers of either ordinary vehicles or

commercial vehicles as having similar blood alcohol levels after a certain time period passes.

That is unrealistic based on our lack of knowledge as to defendant’s metabolic rate, elimination

rate, meals eaten that day, amount of drinks ingested that day, type of alcohol ingested that day,

medical history, etc.

OTHER SUBSTANTIVE ISSUES

This escalating scale is contrary to the available research on this issue. Research shows that a

person’s BAC after being stopped for a DWI is likely to “level off" for up to a two hour period.

Then, for each additional hour, the person’s BAC would drop approximately .01 per hour. For

example, if a person was stopped at 8:00 p.m. with a BAC of .08, the person would still likely

have a BAC of .08 at 10:00 p.m. At 11:00 p.m., the person would likely have a BAC of .07, at

12:00 midnight a BAC of .06, etc. However, this bill would require this same person to have a

BAC of .10 at 10:00 p.m. and a BAC of .11 at 11:00 p.m., etc. This is a lower standard and is

contrary to available research.

ALTERNATIVES

Revising HB 1233 to include accurate scientific data in regards to BAC levels.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Status quo, meaning that if DUI laws are not amended, post-State v. Day, if a driver is charged

with driving while intoxicated and the prosecution lacks evidence of “driving impairment to the

slightest degree" or chooses to proceed exclusively under per se DUI, which requires proof of a

breath or blood alcohol concentration [BAC] at or above a defined level at the time of driving,

BAC test results, obtained after the time of driving, will have to be related back to the BAC at

the time of driving through scientific evidence.

CS/mt