HOUSE BILL 395

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Emily Kane

AN ACT

RELATING TO PUBLIC SAFETY; ENACTING THE TWENTY-FOUR SEVEN SOBRIETY ACT; CREATING A SOBRIETY PROGRAM FOR PERSONS CONVICTED OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS OR OTHER OFFENSES INVOLVING ALCOHOL OR MARIJUANA OR OTHER CONTROLLED SUBSTANCES; PROVIDING POWERS AND DUTIES; PROVIDING FOR COURT-ORDERED PARTICIPATION IN THE PROGRAM TO INCLUDE COSTS AND EXPENSES PAID BY THE OFFENDER; CREATING A FUND.

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

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as the "Twenty-Four Seven Sobriety Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Twenty-Four Seven Sobriety Act:

          A. "court" means a magistrate, metropolitan or district court;

          B. "designee" means the person designated by a sheriff to provide program services;

          C. "fund" means the twenty-four seven sobriety fund;

          D. "office" means the office of the attorney general; and

          E. "program" means the twenty-four seven sobriety program.

     SECTION 3. [NEW MATERIAL] PROGRAM CREATED--ADMINISTRATION--PURPOSE.--

          A. The "twenty-four seven sobriety program" is created and shall be administered by the office. The purpose of the program is to coordinate efforts among various state and local government courts and agencies to find and implement alternatives to incarceration for certain offenses that involve driving under the influence of intoxicating liquor or drugs and other offenses involving alcohol or marijuana or other controlled substances.

          B. The office shall promulgate rules for the administration of the program to:

                (1) regulate the nature and manner of testing for alcohol or drugs;

                (2) provide for procedures and apparatus for testing, including electronic monitoring devices;

                (3) determine and set participation and user fees; provided that user fees for twice-daily testing shall not be less than one dollar ($1.00) per test or more than the actual cost of the test; and

                (4) require the submission of reports and information by law enforcement agencies within this state.
          C. Each county, through its sheriff, may participate in the program. If a sheriff is unwilling or unable to participate in the program, the sheriff may designate another person willing to provide program services. If twice-daily testing is ordered, the sheriff or designee shall establish the testing locations and times for the county but shall have at least one location and two daily testing times approximately twelve hours apart.

          D. A court may require participation in the program, to include the payment by the offender of associated costs and expenses of the program, as a condition of:

                (1) any bond or pretrial release;

                (2) the granting of a suspended imposition of sentence, suspended execution of sentence or probation; or

                (3) the placement of a delinquent or youthful offender.

          E. The parole board may condition parole upon participation in the program, to include the payment by the parolee of associated costs and expenses.

     SECTION 4. [NEW MATERIAL] USER FEES--DISTRIBUTION.--All user fees collected pursuant to the Twenty-Four Seven Sobriety Act shall be distributed as follows:

          A. all user fees collected in the administration of twice-daily testing in a county shall be paid into the treasury of that county or, if the sheriff is not participating and has designated another person to participate in the program, retained by that the designee; provided that testing user fees shall be applied and used only to defray the recurring costs of twice-daily testing, including maintaining equipment, funding support services and ensuring compliance;

          B. any installation and deactivation fees collected in the administration of electronic alcohol monitoring device testing shall be collected by the sheriff or designee and paid into the general fund of the county, the proceeds of which shall be used only to defray the recurring expenses of the program, including maintaining equipment, funding support services and ensuring compliance;

          C. daily user fees collected in the administration of electronic alcohol monitoring device testing shall be deposited in the fund; and

          D. all user fees collected as a result of the administration of the program, other than those collected by the county or the designee, for twice daily testing shall be deposited in the fund.

     SECTION 5. [NEW MATERIAL] FUND CREATED--ADMINISTRATION.--The "twenty-four seven sobriety fund" is created as a nonreverting fund in the state treasury. The fund shall be administered by the office to defray the costs of operating the program, including purchasing and maintaining equipment and funding support services. The fund consists of appropriations, user fees, gifts, grants, donations and other payments. Expenditures from the fund shall be on warrant of the secretary of finance and administration upon vouchers signed by the attorney general or the attorney general's authorized representative.

     SECTION 6. Section 66-8-102 NMSA 1978 (being Laws 1953, Chapter 139, Section 54, as amended) is amended to read:

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

          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.

          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 under the influence of intoxicating liquor or drugs consists of:

                (1) driving a vehicle in this state with an alcohol concentration of sixteen one hundredths or more in the driver'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) causing 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) refusing 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, the driver was under the influence of intoxicating liquor or drugs.

          E. A 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 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 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 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, 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 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 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 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 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 court may order participation in a twenty-four seven sobriety program pursuant to the Twenty-Four Seven Sobriety Act. 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.

     The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement. Programs under this subsection may include a twenty-four seven sobriety program pursuant to the Twenty-Four Seven Sobriety Act.

          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 [traffic safety] bureau. Unless determined by the bureau 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 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 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. An offender who obtains an ignition interlock license and installs an ignition interlock device prior to conviction shall be given credit at sentencing for the time period the ignition interlock device has been in use.

          Q. 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.

          R. 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 under the influence of intoxicating liquor or drugs, and prescribes penalties for driving 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.

          S. 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.

          T. 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.

          U. 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) "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

                     (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;

                     (c) is designed to transport sixteen or 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."

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