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HOUSE BILL 106
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Andrea Reeb
AN ACT
RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR
OR DRUGS; AMENDING THE REQUIREMENTS FOR TESTING THE BLOOD OF A
PERSON SUSPECTED OF OPERATING A MOTOR VEHICLE WHILE UNDER THE
INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PROVIDING THAT
CERTAIN MEDICAL PROFESSIONALS ARE AUTHORIZED TO WITHDRAW BLOOD
IN THE PERFORMANCE OF A CHEMICAL BLOOD TEST FOR DRIVING A MOTOR
VEHICLE OR OPERATING A MOTORBOAT UNDER THE INFLUENCE OF
INTOXICATING LIQUOR OR DRUGS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. 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.--
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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
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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 breath
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 L 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
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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
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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
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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,
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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 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 an eighth or subsequent conviction pursuant
to this section, an offender is guilty of a second degree
felony and, notwithstanding the provisions of Section 31-18-15
NMSA 1978, shall be sentenced to a term of imprisonment of
twelve years, ten years of which shall not be suspended,
deferred or taken under advisement.
L. 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 requirement imposed pursuant to this
subsection shall not be suspended, deferred or taken under
advisement.
M. Upon a second or third conviction pursuant to
this section, an offender shall be required to participate in
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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.
N. 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.
O. 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 bureau. Unless determined by
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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.
P. 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.
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Q. 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.
R. 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.
S. 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.
T. 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.
U. 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
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sentence that the court could have originally imposed and
credit shall not be given for time served by the offender on
probation.
V. 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."
SECTION 2. Section 66-8-103 NMSA 1978 (being Laws 1967,
Chapter 160, Section 1) is amended to read:
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"66-8-103. CHEMICAL BLOOD TESTS--PERSONS QUALIFIED TO
PERFORM TESTS--RELIEF FROM LIABILITY .--Only a physician,
licensed professional or practical nurse, [or laboratory
technician] emergency medical technician or certified
phlebotomist or a technologist employed by a hospital or
physician shall withdraw blood from [any ] a person in the
performance of a [blood-alcohol ] chemical blood test. No such
physician, nurse, technician, phlebotomist or technologist who
withdraws blood from [any ] a person in the performance of a
[blood-alcohol] chemical blood test that has been directed by
[any] a police officer or by [any ] a judicial or probation
officer shall be held liable in any civil or criminal action
for assault, battery, false imprisonment or any conduct of
[any] a police officer except for negligence, nor shall [any ] a
person assisting in the performance of [such a ] the test or
[any] a hospital wherein blood is withdrawn in the performance
of [such a] the test be subject to civil or criminal liability
for assault, battery, false imprisonment or any conduct of
[any] a police officer except for negligence."
SECTION 3. Section 66-8-104 NMSA 1978 (being Laws 1978,
Chapter 35, Section 512) is amended to read:
"66-8-104. [BLOOD-ALCOHOL ] CHEMICAL BLOOD TESTS--[POLICE,
JUDICIAL OR PROBATION ] OFFICER UNAUTHORIZED TO MAKE ARREST OR
DIRECT TEST EXCEPT IN PERFORMANCE OF OFFICIAL DUTIES
[AUTHORIZED BY LAW].--Nothing in Sections [64-8-103 or 64-8-104
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NMSA 1953] 66-8-103 or 66-8-104 NMSA 1978 is intended to
authorize [any] a police officer or [any ] a judicial or
probation officer to make [any ] an arrest or to direct the
performance of a [blood-alcohol ] chemical blood test except in
the performance of [his ] that officer's official duties and as
otherwise authorized by law."
SECTION 4. Section 66-8-111 NMSA 1978 (being Laws 1978,
Chapter 35, Section 519, as amended) is amended to read:
"66-8-111. REFUSAL TO SUBMIT TO CHEMICAL TESTS--TESTING--
GROUNDS FOR REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE.--
A. If a person under arrest for violation of an
offense enumerated in the Motor Vehicle Code refuses upon
request of a law enforcement officer to submit to chemical
tests designated by the law enforcement agency as provided in
Section 66-8-107 NMSA 1978, none shall be administered except
when a municipal judge, magistrate or district judge issues a
search warrant authorizing chemical tests as provided in
Section 66-8-107 NMSA 1978 upon finding in a law enforcement
officer's written affidavit that there is probable cause to
believe that the person has driven a motor vehicle while under
the influence of alcohol, cannabis or a controlled substance
thereby causing the death or great bodily injury of another
person, or there is probable cause to believe that the person
has committed a felony or misdemeanor while under the influence
of alcohol, cannabis or a controlled substance and that
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chemical tests as provided in Section 66-8-107 NMSA 1978 will
produce material evidence in a [felony ] criminal prosecution.
B. If a person under arrest for violation of an
offense enumerated in the Motor Vehicle Code refuses upon
request of a law enforcement officer to submit to chemical
tests designated by the law enforcement agency as provided in
Subsection A of this section and the person does not cause
great bodily injury of another person or there is probable
cause to believe the person has committed a misdemeanor while
under the influence of alcohol, cannabis or a controlled
substance, the person's charge may be aggravated pursuant to
the provisions of Section 66-8-102 NMSA 1978. The department,
upon receipt of a statement signed under penalty of perjury
from a law enforcement officer stating the officer's reasonable
grounds to believe the arrested person had been driving a motor
vehicle within this state while under the influence of
intoxicating liquor, cannabis or drugs and that, upon request,
the person refused to submit to a chemical test after being
advised that failure to submit could result in revocation of
the person's privilege to drive, shall revoke the person's New
Mexico driver's license or any nonresident operating privilege
for a period of one year or until all conditions for license
reinstatement are met, whichever is later.
C. The department, upon receipt of a statement
signed under penalty of perjury from a law enforcement officer
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stating the officer's reasonable grounds to believe the
arrested person had been driving a motor vehicle within this
state while under the influence of intoxicating liquor and that
the person submitted to chemical testing pursuant to Section
66-8-107 NMSA 1978 and the test results indicated an alcohol
concentration in the person's blood or breath of eight one
hundredths or more if the person is twenty-one years of age or
older, four one hundredths or more if the person is driving a
commercial motor vehicle or two one hundredths or more if the
person is less than twenty-one years of age, shall revoke the
person's license or permit to drive or [his ] the person's
nonresident operating privilege for a period of:
(1) six months or until all conditions for
license reinstatement are met, whichever is later, if the
person is twenty-one years of age or older;
(2) one year or until all conditions for
license reinstatement are met, whichever is later, if the
person was less than twenty-one years of age at the time of the
arrest, notwithstanding any provision of the Children's Code;
or
(3) one year or until all conditions for
license reinstatement are met, whichever is later, if the
[person has previously had his ] person's license has been
revoked previously pursuant to the provisions of this section,
notwithstanding the provisions of Paragraph (1) of this
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subsection.
D. The determination of alcohol concentration shall
be based on the grams of alcohol in one hundred milliliters of
blood or the grams of alcohol in two hundred ten liters of
breath.
E. If the person subject to the revocation
provisions of this section is a resident or will become a
resident within one year and is without a license to operate a
motor vehicle in this state, the department shall deny the
issuance of a license to [him ] the person for the appropriate
period of time as provided in Subsections B and C of this
section.
F. A statement signed by a law enforcement officer,
pursuant to the provisions of Subsection B or C of this
section, shall be sworn to by the officer or shall contain a
declaration substantially to the effect: "I hereby declare
under penalty of perjury that the information given in this
statement is true and correct to the best of my knowledge.".
The statement may be signed and submitted electronically in a
manner and form approved by the department A law enforcement
officer who signs a statement knowing that the statement is
untrue in any material issue or matter is guilty of perjury as
provided in Section 66-5-38 NMSA 1978.
G. As used in this section, "cannabis" means:
(1) all parts of the plant genus Cannabis
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containing a delta-9-tetrahydrocannabinol concentration of more
than three-tenths percent on a dry weight basis, whether
growing or not; the seeds of the plant; the resin extracted
from any part of the plant; and every compound, manufacture,
salt, derivative, mixture or preparation of the plant, its
seeds or its resin;
(2) cannabis extract, which:
(a) includes a product obtained by
separating resins, tetrahydrocannabinols or other substances
from cannabis by extraction methods approved by the cannabis
control division of the regulation and licensing department;
and
(b) does not include the weight of any
other ingredient combined with cannabis extract to prepare
topical or oral administrations, food, drink or another
product; and
(3) a cannabis product that is or that
contains cannabis or cannabis extract, including edible or
topical products that may also contain other ingredients. "
SECTION 5. Section 66-8-111.1 NMSA 1978 (being Laws 1984,
Chapter 72, Section 7, as amended) is amended to read:
"66-8-111.1. LAW ENFORCEMENT OFFICER AGENT FOR
DEPARTMENT--WRITTEN NOTICE OF REVOCATION AND RIGHT TO
HEARING.--
A. On behalf of the department, a law enforcement
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officer requesting a chemical test or directing the
administration of a chemical test pursuant to [Section ]
Sections 66-8-107 and 66-8-111 NMSA 1978 shall serve immediate
written notice of revocation and of right to a hearing before
the administrative hearings office pursuant to the Implied
Consent Act on a person who:
(1) refuses to permit chemical testing; or
(2) submits to a chemical test the results of
which indicate an alcohol concentration in the person's blood
or breath of:
(a) eight one hundredths or more if the
person is twenty-one years of age or older;
(b) four one hundredths or more if the
person is driving a commercial motor vehicle; or
(c) two one hundredths or more if the
person is less than twenty-one years of age.
B. The written notice of revocation and of a right
to a hearing served on the driver shall be a temporary license
valid for twenty days or, if the driver requests a hearing
pursuant to Section 66-8-112 NMSA 1978, valid until the date
the administrative hearings office issues the order following
that hearing; provided that a written notice of revocation and
right to a hearing shall not be a temporary license for a
driver without any otherwise valid driving privileges in this
state.
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C. The law enforcement officer shall send to the
department the signed statement required pursuant to Section
66-8-111 NMSA 1978."
SECTION 6. Section 66-13-1 NMSA 1978 (being Laws 2003,
Chapter 241, Section 1) is amended to read:
"66-13-1. SHORT TITLE.--[Sections 1 through 13 of this
act] Chapter 66, Article 13 NMSA 1978 may be cited as the
"Boating While Intoxicated Act"."
SECTION 7. Section 66-13-6 NMSA 1978 (being Laws 2003,
Chapter 241, Section 6) is amended to read:
"66-13-6. [BLOOD-ALCOHOL ] CHEMICAL BLOOD TESTS--PERSONS
QUALIFIED TO PERFORM TESTS--RELIEF FROM CIVIL AND CRIMINAL
LIABILITY.--Only a physician, licensed professional or
practical nurse, [or laboratory technician ] emergency medical
technician or certified phlebotomist or a technologist employed
by a hospital or physician shall withdraw blood from a person
in the performance of a [blood-alcohol or drug ] chemical blood
test. A physician, nurse, technician, phlebotomist or
technologist who withdraws blood from a person in the
performance of a [blood-alcohol or drug ] chemical blood test
that has been directed by a law enforcement officer, or by a
judicial or probation officer, shall not be held liable in a
civil or criminal action for assault, battery, false
imprisonment or any conduct of a law enforcement officer,
except for negligence, nor shall a person assisting in the
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[bracketed material] = delete
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performance of the test, or a hospital wherein blood is
withdrawn in the performance of the test, be subject to civil
or criminal liability for assault, battery, false imprisonment
or any conduct of a law enforcement officer, except for
negligence."
SECTION 8. Section 66-13-7 NMSA 1978 (being Laws 2003,
Chapter 241, Section 7) is amended to read:
"66-13-7. [BLOOD-ALCOHOL ] CHEMICAL BLOOD TEST--[LAW
ENFORCEMENT, JUDICIAL OR PROBATION ] OFFICER UNAUTHORIZED TO
MAKE ARREST OR DIRECT TEST EXCEPT IN PERFORMANCE OF OFFICIAL
DUTIES [AUTHORIZED BY LAW ].--Nothing in the Boating While
Intoxicated Act is intended to authorize a law enforcement
officer, or a judicial or probation officer, to make an arrest
or direct the performance of a [blood-alcohol or drug ] chemical
blood test, except in the performance of [his ] that officer's
official duties or as otherwise authorized by law."
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