(A) It shall be unlawful for any person to drive or be in actual physical control of any motor vehicle while such person is under the influence of any drug to a degree which impairs his ability, either mentally or physically or both, to operate such motor vehicle. Such drug shall include intoxicating liquor, narcotic drug, or other drug or any combination of intoxicating liquor, narcotic drug or other drug. The fact that a person charged with a violation of this section is or has been entitled to use such liquor or narcotic drug or other drug or any combination thereof under the laws of this state shall not constitute a defense against any charge of a violation of this section. The gravamen of this offense is the mental and/or physical condition of the driver which impairs the ability of such driver to safely operate such motor vehicle.
(B) Implied consent to submit to chemical test:
(1) Any person who operates a motor vehicle within the city shall be deemed to have given consent, subject to the provisions of the Implied Consent Act, Sections 66-8-105 through 66-8-112 NMSA 1978, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic, narcotic or drug content of his blood, if arrested while the person was driving or in actual physical control of a motor vehicle while alleged to be under the influence of an intoxicating liquor, narcotic drug, other drug, or any combination thereof.
(2) A breath test for alcohol shall be administered at the direction of a police officer of the city who has reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state, while under the influence of intoxicating liquor. If the person comes under the provisions of division (3) below, the law enforcement officer may designate the test or tests to be given. The city shall pay for the test.
(3) Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by division (1) above and the test or tests designated by the law enforcement officer may be administered. (Section 66-8-108 NMSA 1978)
(C) Administration of chemical test; payment of costs; additional tests.
(1) (a) Only a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from any person in the performance of a blood test. No such physician, nurse, technician or technologist who withdraws blood from any person in the performance of a blood test that has been directed by any police officer, or by any judicial or probation officer shall be held liable in any civil or criminal action for assault, battery, false imprisonment, or any conduct of any police officer, except for negligence, nor shall any person assisting in the performance of such a test, or any hospital wherein blood is withdrawn or a urine sample is taken, in the performance of such a test, be subject to civil or criminal liability for assault, battery, false imprisonment, or any conduct of any police officer, except for negligence.
(b) This limitation upon who may withdraw blood does not apply to the taking of samples of breath.
(2) The person tested shall be given an 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 choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer. The city shall pay for the test.
(3) Upon the request of the person tested, full information concerning the test or tests performed shall be made available to him as soon as it is available from the person performing the test.
(4) If a person exercises his right under division (2) above to have a chemical test performed upon him by a person of his own choosing, then the cost of that test shall be paid by the city.
(D) Use of chemical tests in criminal actions; presumptions of intoxication.
(1) The results of a chemical test performed pursuant to the Implied Consent Act may be introduced into evidence in any criminal action arising out of the acts alleged to have been committed by the person tested while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
(2) If the blood of the person tested contains:
(a) Five one-hundredths of one percent or less by weight of alcohol, it shall be presumed that the person was not under the influence of intoxicating liquor;
(b) More than five one-hundredths of one percent but less than one-tenth of one percent by weight of alcohol, no presumption shall be made that the person either was or was not under the influence of intoxicating liquor. However, the amount of alcohol in the person's blood may be considered with other competent evidence in determining whether or not the person was under the influence of intoxicating liquor; or
(c) One-tenth of one percent or more by weight of alcohol, it shall be presumed that the person was under the influence of intoxicating liquor.
(3) The percent by weight of alcohol shall be based on grams of alcohol in one hundred cubic centimeters of blood.
(4) The presumptions in division (2) above do not limit the introduction of other competent evidence concerning whether or not a person was under the influence of intoxicating liquor, narcotics or other drugs.
(E) Refusal to submit to chemical test; revocation of license or privilege to drive.
(1) If a person under arrest refused, upon request of the police officer, to submit to chemical tests designated by this section, none shall be administered.
(2) The police officer shall prepare in such event a sworn report, and submit the report to the Commissioner of the Department of Motor Vehicles, stating the facts and circumstances causing him to believe he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within the city while under the influence of intoxicating liquor, and further stating that, upon his request, the person refused to submit to a chemical test, after being advised that failure to submit could result in revocation of his privilege to drive.
('74 Code, § 9-5-4.9) (Ord. 65-1974)