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HOUSE BILL 567
57TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 2025
INTRODUCED BY
Jimmy G. Mason and Randall T. Pettigrew
AN ACT
RELATING TO MOTOR VEHICLES; PROVIDING FOR AN ADDITIONAL ORAL
FLUID TEST TO DETERMINE IF A PERSON WAS DRIVING UNDER THE
INFLUENCE OF AN INTOXICATING LIQUOR OR DRUG.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 66-8-107 NMSA 1978 (being Laws 1978,
Chapter 35, Section 515, as amended) is amended to read:
"66-8-107. IMPLIED CONSENT TO SUBMIT TO CHEMICAL TEST.--
A. Any person who operates a motor vehicle within
this state shall be deemed to have given consent, subject to
the provisions of the Implied Consent Act, to chemical tests of
[his] that person's breath, [or] blood or [both] oral fluid or
any combination thereof , approved by the scientific laboratory
division of the department of health pursuant to the provisions
of Section 24-1-22 NMSA 1978, as determined by a law
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enforcement officer or for the purpose of determining the drug
or alcohol content of [his ] the person's breath , blood or oral
fluid if the person is arrested for any offense arising out of
the acts alleged to have been committed while the person was
driving a motor vehicle while under the influence of an
intoxicating liquor or drug.
B. A test of blood, [or ] breath or [both] oral
fluid, approved by the scientific laboratory division of the
department of health pursuant to the provisions of Section
24-1-22 NMSA 1978, shall be administered at the direction of a
law enforcement officer having reasonable grounds to believe
the person to have been driving a motor vehicle within this
state while under the influence of an intoxicating liquor or
drug."
SECTION 2. Section 66-8-109 NMSA 1978 (being Laws 1978,
Chapter 35, Section 517, as amended) is amended to read:
"66-8-109. ADMINISTRATION OF CHEMICAL TEST--PAYMENT OF
COSTS--ADDITIONAL TESTS.--
A. Only the persons authorized by Section 66-8-103
NMSA 1978 shall withdraw blood from any person for the purpose
of determining its alcohol or drug content. This limitation
does not apply to the taking of samples of breath or to the
testing of oral fluid .
B. The person tested shall be advised by the law
enforcement officer of the person's right to be given an
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opportunity to arrange for a physician, licensed professional
or practical nurse or laboratory technician or technologist who
is employed by a hospital or physician of [his ] the person's
own choosing to perform a chemical test in addition to any test
performed at the direction of a law enforcement officer.
C. Upon the request of the person tested, full
information concerning the test performed at the direction of
the law enforcement officer shall be made available to [him ]
the person as soon as it is available from the person
performing the test.
D. The law enforcement agency represented by the
law enforcement officer at whose direction [the ] a chemical
test is performed shall pay for the chemical test.
E. If a person exercises [his ] the person's right
under Subsection B of this section to have a chemical test
performed upon [him] the person by a person of [his] the
person's own choosing, the cost of that test shall be paid by
the law enforcement agency represented by the law enforcement
officer at whose direction a chemical test was administered
under Section 66-8-107 NMSA 1978."
SECTION 3. Section 66-8-110 NMSA 1978 (being Laws 1978,
Chapter 35, Section 518, as amended) is amended to read:
"66-8-110. USE OF TESTS IN CRIMINAL ACTIONS OR CIVIL
ACTIONS--LEVELS OF INTOXICATION--MANDATORY CHARGING.--
A. The results of a test performed pursuant to the
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Implied Consent Act may be introduced into evidence in any
civil action or criminal action arising out of the acts alleged
to have been committed by the person tested for driving a motor
vehicle while under the influence of intoxicating liquor or
drugs.
B. When the blood, [or ] breath or oral fluid of the
person tested contains:
(1) an alcohol concentration of less than four
one hundredths, it shall be presumed that the person was not
under the influence of intoxicating liquor;
(2) an alcohol concentration of at least four
one hundredths but less than eight one hundredths:
(a) no presumption shall be made that
the person either was or was not under the influence of
intoxicating liquor, unless the person is driving a commercial
motor vehicle; and
(b) the amount of alcohol in the
person's blood, [or] breath or oral fluid may be considered
with other competent evidence in determining whether the person
was under the influence of intoxicating liquor; [or ]
(3) an alcohol concentration of four one
hundredths or more and the person is driving a commercial
vehicle, it shall be presumed that the person is under the
influence of intoxicating liquor; or
(4) a controlled substance, it shall be
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presumed that the person is under the influence of drugs .
C. The arresting officer shall charge the person
tested with a violation of Section 66-8-102 NMSA 1978 when the
blood, [or] breath or oral fluid of the person contains the
presence of a controlled substance or contains an alcohol
concentration of:
(1) eight one hundredths or more; or
(2) four one hundredths or more if the person
is driving a commercial motor vehicle.
D. When a person is less than twenty-one years of
age and the blood, [or ] breath or oral fluid of the person
contains the presence of a controlled substance or contains an
alcohol concentration of two one hundredths or more, the
person's driving privileges shall be revoked pursuant to the
provisions of the Implied Consent Act.
E. If the test performed pursuant to the Implied
Consent Act is administered more than three hours after the
person was driving a vehicle, the test result may be introduced
as evidence of the presence of a controlled substance or an
alcohol concentration in the person's blood, [or ] breath or
oral fluid at the time of the test and the trier of fact shall
determine what weight to give the test result for the purpose
of determining a violation of Section 66-8-102 NMSA 1978.
F. The determination of alcohol concentration shall
be based on the grams of alcohol in one hundred milliliters of
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blood or the grams of alcohol in two hundred ten liters of
breath.
G. The determination of the presence of a
controlled substance shall be based on a test of a person's
blood or oral fluid that shows the blood or oral fluid contains
the controlled substance.
[G.] H. The presumptions in Subsection B of this
section do not limit the introduction of other competent
evidence concerning whether the person was under the influence
of intoxicating liquor.
[H.] I. If a person is convicted of driving a motor
vehicle while under the influence of intoxicating liquor, the
trial judge shall inquire into the past driving record of the
person before sentence is entered in the matter."
SECTION 4. 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
officer requesting a chemical test or directing the
administration of a chemical test pursuant to Section 66-8-107
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:
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(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; or
(3) submits to a chemical test, the results of
which indicate the presence of a controlled substance .
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.
C. The law enforcement officer shall send to the
department the signed statement required pursuant to Section
66-8-111 NMSA 1978."
SECTION 5. Section 66-8-111 NMSA 1978 (being Laws 1978,
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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 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 while under the influence of alcohol or a
controlled substance and that chemical tests as provided in
Section 66-8-107 NMSA 1978 will produce material evidence in a
felony prosecution.
B. 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 or drugs
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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
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 or a
controlled substance and that the person submitted to chemical
testing pursuant to Section 66-8-107 NMSA 1978 and the test
results indicated the presence of a controlled substance or 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;
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(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
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. The determination of the presence of a
controlled substance shall be based on a test of blood or oral
fluid that shows the blood or oral fluid contains the
controlled substance.
[E.] F. 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
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section.
[F.] G. 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."
SECTION 6. Section 66-8-112 NMSA 1978 (being Laws 1978,
Chapter 35, Section 520, as amended) is amended to read:
"66-8-112. REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE--
NOTICE--EFFECTIVE DATE--HEARING--HEARING COSTS--REVIEW.--
A. The effective date of revocation pursuant to
Section 66-8-111 NMSA 1978 is twenty days after notice of
revocation or, if the person whose driver's license or
privilege to drive is being revoked or denied requests a
hearing pursuant to the Administrative Hearings Office Act, the
date that the administrative hearings office issues the order
following that hearing. The date of notice of revocation is:
(1) the date the law enforcement officer
serves written notice of revocation and of right to a hearing
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pursuant to Section 66-8-111.1 NMSA 1978; or
(2) in the event the results of a chemical
test cannot be obtained immediately, the date notice of
revocation is served by mail by the department. This notice of
revocation and of right to a hearing shall be sent by certified
mail and shall be deemed to have been served on the date borne
by the return receipt showing delivery, refusal of the
addressee to accept delivery or attempted delivery of the
notice at the address obtained by the arresting law enforcement
officer or on file with the department.
B. Within ten days after receipt of notice of
revocation pursuant to Subsection A of this section, a person
whose license or privilege to drive is revoked or denied or the
person's agent may request a hearing. The hearing request
shall be made in writing and shall be accompanied by a payment
of twenty-five dollars ($25.00) or a sworn statement of
indigency on a form provided by the department. A standard for
indigency shall be established pursuant to rules adopted by the
department. Failure to request a hearing within ten days shall
result in forfeiture of the person's right to a hearing. Any
person less than eighteen years of age who fails to request a
hearing within ten days shall have notice of revocation sent to
the person's parent, guardian or custodian by the department.
A date for the hearing shall be set by the administrative
hearings office, if practical, within thirty days after receipt
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of notice of revocation. The hearing shall be held in the
county in which the offense for which the person was arrested
took place.
C. The administrative hearings office may postpone
or continue any hearing on its own motion or upon application
from the person and for good cause shown for a period not to
exceed ninety days from the date of notice of revocation and,
provided that, upon a continuance, the department shall extend
the validity of the temporary license for the period of the
postponement or continuation.
D. At the hearing, the administrative hearings
office may administer oaths and may issue subpoenas for the
attendance of witnesses and the production of relevant books
and papers.
E. The hearing shall be limited to the following
issues:
(1) whether the law enforcement officer had
reasonable grounds to believe that the person had been driving
a motor vehicle within this state while under the influence of
intoxicating liquor or drugs;
(2) whether the person was arrested;
(3) whether this hearing is held no later than
ninety days after notice of revocation; and either
(4) whether:
(a) the person refused to submit to a
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test upon request of the law enforcement officer; and
(b) the law enforcement officer advised
that the failure to submit to a test could result in revocation
of the person's privilege to drive; or
(5) whether:
(a) the chemical test was administered
pursuant to the provisions of the Implied Consent Act; and
(b) the test results indicated: 1) the
presence of a controlled substance; or 2) 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.
F. The administrative hearings office shall enter
an order sustaining the revocation or denial of the person's
license or privilege to drive if the hearing officer from the
administrative hearings office finds that:
(1) the law enforcement officer had reasonable
grounds to believe the driver was driving a motor vehicle while
under the influence of intoxicating liquor or drugs;
(2) the person was arrested;
(3) this hearing is held no later than ninety
days after notice of revocation; and
(4) either:
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(a) the person refused to submit to the
test upon request of the law enforcement officer after the law
enforcement officer advised the person that the person's
failure to submit to the test could result in the revocation of
the person's privilege to drive; or
(b) that a chemical test was
administered pursuant to the provisions of the Implied Consent
Act and the test results indicated: 1) the presence of a
controlled substance; or 2) 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.
G. If one or more of the elements set forth in
Paragraphs (1) through (4) of Subsection F of this section are
not found by the hearing officer, the person's license shall
not be revoked.
H. A person adversely affected by an order of the
administrative hearings office may seek review within thirty
days in the district court in the county in which the offense
for which the person was arrested took place. The district
court, upon thirty days' written notice to the department,
shall hear the case. On review, it is for the court to
determine only whether reasonable grounds exist for revocation
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or denial of the person's license or privilege to drive based
on the record of the administrative proceeding.
I. Any person less than eighteen years of age shall
have results of the person's hearing forwarded by the
administrative hearings office to the person's parent, guardian
or custodian."
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