HOUSE BILL 275
56th legislature - STATE OF NEW MEXICO - first session, 2023
Jimmy G. Mason and Alan T. Martinez
RELATING TO MOTOR VEHICLES; CREATING THE ORAL FLUID ROADSIDE DETECTION PILOT PROJECT TO TEST FOR THE PRESENCE OF DRUGS WHEN A DRIVER IS STOPPED FOR SUSPICION OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; COLLECTING DATA TO DETERMINE THE MAGNITUDE OF THE PROBLEM OF DRIVING UNDER THE INFLUENCE OF DRUGS AND THE SUCCESS OF THE PILOT PROJECT; SPECIFYING AREAS OF PARTICIPATION IN THE PILOT PROJECT; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] ORAL FLUID ROADSIDE DETECTION PILOT PROJECT CREATED--ADMINISTRATION--LOCATIONS--HYPOTHESIS--DATA COLLECTION--EVALUATION.--
A. As used in this section:
(1) "department" means the department of public safety;
(2) "handheld roadside detection device" means a portable screening instrument that can detect the presence of one or more drug categories through the collection of oral fluid;
(3) "oral fluid" means saliva that is collected by a swab or by spitting into a vial; and
(4) "pilot" means the oral fluid roadside detection pilot project.
B. The "oral fluid roadside detection pilot project" is created. The pilot is a four-year project administered by the department and conducted by the state police, sheriff's offices and selected municipal police departments in Bernalillo, Dona Ana, San Juan, Lea and San Miguel counties. The purpose of the pilot is to:
(1) investigate the efficacy of using handheld roadside detection devices for oral fluid testing for the presence of drugs when a law enforcement officer has reasonable suspicion that a driver may be driving under the influence of intoxicating liquor or drugs;
(2) determine if the handheld roadside detection device can augment or replace certified drug recognition experts, particularly in rural areas of the state where such experts are not readily available; and
(3) determine if the use of the handheld roadside detection devices is an efficient and cost-effective law enforcement aid that:
(a) shortens the time it takes for a law enforcement officer to process a case of driving while under the influence of intoxicating liquor or drugs; and
(b) increases the conviction rates for persons arrested for driving while under the influence of intoxicating liquor or drugs.
C. The department shall convene an expert panel to assist in designing the pilot, including:
(1) one district attorney, or the district attorney's designee, from each judicial district encompassing a county that is participating in the pilot;
(2) ten members representing counties and municipalities participating in the pilot;
(3) two drug recognition experts;
(4) the secretary of health or the secretary's designee;
(5) a state police officer responsible for commercial vehicle enforcement;
(6) one drug testing expert from a testing laboratory; and
(7) the director of the cannabis control division of the regulation and licensing department.
D. The department shall promulgate rules for the conduct of the pilot in accordance with this section. The department and the pilot participants shall apply for federal grants available for the purposes of this section.
E. The department shall:
(1) select and purchase handheld roadside detection devices, considering instrument reliability, drug categories the device detects and the cut-off drug levels that correspond to federal department of health and human services regulations for drug levels for mandatory drug testing of federal employees; provided that a law enforcement agency that already possesses handheld roadside detection devices may use those devices;
(2) provide the handheld roadside detection devices to participating state police officers and local law enforcement departments; and
(3) train participating law enforcement officers in the use of the handheld roadside detection device and, for officers who have not received the training 1, training in advanced roadside impaired-driving enforcement.
F. Law enforcement officers who are not drug recognition experts may participate in the pilot.
G. Roadside oral fluid testing is voluntary for the driver and shall be used only to determine probable cause.
H. Detection of a drug category by a handheld roadside detection device shall be confirmed by a blood test.
I. Each participating law enforcement agency shall collect monthly data to determine the efficacy of using the handheld roadside detection devices for roadside drug testing and arrest and conviction rates of drivers pursuant to Section 66-8-102 NMSA 1978, including for each agency:
(1) how many times drivers were requested to submit to a roadside oral fluid test;
(2) how many drivers submitted to the test and how many drivers refused the test;
(3) a list of each drug category detected and the frequency of detection;
(4) whether a drug recognition expert was called to the scene;
(5) how many positive and negative detections were registered with the devices;
(6) of the positive detections, how many were confirmed by a blood test;
(7) of the positive detections confirmed by a blood test, the percentage of confirmation for each drug category;
(8) of the positive detections, how many drivers required medical intervention;
(9) of drivers arrested, how many went to pre-trial diversion, how many went to trial and how many were convicted;
(10) how many drivers were sentenced to jail, how many had their sentences suspended or deferred and how many were ordered to DWI school;
(11) how many drivers were charged or convicted with a previous incident of driving while under the influence of intoxicating liquor or drugs;
(12) whether there were any circumstances in which weather did not permit or complicated the collection and testing of oral fluid; and
(13) any other data the department considers necessary to evaluate the pilot.
J. The department shall use the data collected to evaluate:
(1) the accuracy of the technology;
(2) its ease of use;
(3) whether law enforcement officers found the technology efficient and effective; and
(4) other relevant measures determined by the department.
K. The department shall provide periodic reports to the interim committee that studies corrections issues and a final report to the governor and the legislature, including findings and recommendations.
SECTION 2. TEMPORARY PROVISION.--The department of public safety shall have the oral fluid roadside detection pilot project operational by January 1, 2024.
SECTION 3. APPROPRIATION.--Six hundred fifty thousand dollars ($650,000) is appropriated from the cannabis regulation fund to the department of public safety for expenditure in fiscal years 2024 through 2027 to conduct an oral fluid roadside detection pilot project and to purchase handheld roadside detection devices for pilot project participants, to pay per diem and mileage to the expert panel convened to assist the department in designing the pilot project and to pay other expenses related to the pilot project. Any unexpended or unencumbered balance remaining at the end of fiscal year 2027 shall revert to the cannabis regulation fund.
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What training? Officers need both training on enforcement and training on using the device.