A. Section 12-6-12.1 of the 2010 New Mexico uniform traffic ordinance which was adopted as the official traffic ordinance is hereby amended as follows: (Ord. 2014-2, 2-11-2014; amd. Ord. 2018-13, 10-23-2018)
12-6-12.1:
(A) It is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle within this municipality.
(B) It is unlawful for:
(1) A person to drive a vehicle in this municipality 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 municipality 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.
(C) It is unlawful for any person who is under the influence of any drug to a degree which renders him incapable of safely driving a vehicle to drive any vehicle within this municipality. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this state is not a defense against the charge.
(D) Aggravated driving while under the influence of intoxicating liquor or drugs consists of a person who:
(1) Had an alcohol concentration of sixteen one- hundredths or more in his 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) Has caused 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) Refused to submit to chemical testing, as provided for in the implied consent act (66-8-105 to 66-8-112 NMSA 1978), and in the judgment of the court, based upon evidence of intoxication presented to the court, the person was under the influence of intoxicating liquor or drugs.
(E) Any person who operates a motor vehicle within this municipality shall be deemed to have given consent, subject to the provisions of the implied consent act, to chemical tests of his breath or blood or both, approved by the scientific laboratory division of the department of health pursuant to the provision of section 24-1-22 NMSA 1978 as determined by a law enforcement officer, or for the purpose of determining the drug or alcoholic content of his blood, if 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 any drug.
(F) A test of blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to 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 municipality, while under the influence of intoxicating liquor or drug.
(G) 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 section 12-6-12.1D, and the test or tests designated by the law enforcement officer may be administered.
(H) Only the persons authorized by section 66-8-103 NMSA 1978 shall withdraw blood from any person for the purpose of determining its drug or alcoholic content. This limitation does not apply to the taking of samples of breath.
(I) The person tested shall be advised by the law enforcement officer of the person's right to 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 own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer.
(J) Upon the request of the person tested, full information concerning the test or tests performed at the direction of the law enforcement officer shall be made available to him as soon as it is available from the person performing the test.
(K) The law enforcement agency represented by the law enforcement officer at whose direction the chemical test is performed shall pay for the chemical test.
(L) If the person exercises his right under subsection I 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 law enforcement agency represented by the law enforcement officer at whose direction a chemical test was administered under subsection E.
(M) The results of a test performed pursuant to the 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 drug.
(N) When the blood or breath 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 four one-hundredths or more, but less than eight one-hundredths, 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
(3) An alcohol concentration of eight one-hundredths or more, the arresting officer shall charge him with a violation of this section.
(4) An alcohol concentration of four one-hundredths or more and the person is driving a commercial vehicle, the arresting officer shall charge him with a violation of this section. (66-8-110 NMSA 1978) VI-37.
(O) 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 alcohol concentration in the person's blood or breath 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 sec. 12-6-12.1. (66-8-110 NMSA 1978)
(P) The presumptions in subsection N of this section do not limit the introduction of other competent evidence concerning whether or not a person was under the influence of intoxicating liquor.
(Q) Nothing in this section is intended to authorize any police officer, or any judicial or probation officer, to make any arrest or to direct the performance of a blood-alcohol test, except in the performance of his official duties and as otherwise authorized by law.
(R) 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 to section 12-6-12.1E and F, none shall be administered, except when a municipal judge, magistrate or district judge issues a search warrant authorizing chemical tests as provided in section 12-6-12.1E and F, upon his 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 intoxicating alcohol or drug 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 intoxicating alcohol or drug and that chemical tests as provided in section 12-6-12.1E and F will produce material evidence in a felony prosecution.
(S) If a law enforcement officer has reasonable grounds to believe that a person arrested for violation of subsections A, B, C, and D of this section had been driving a motor vehicle within this municipality while under the influence of intoxicating liquor or drug and 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, then the law enforcement officer shall transmit to the director a statement signed under penalty of perjury stating which such reasonable grounds were and stating that the person refused to submit to a chemical test after being advised of the consequences of such refusal.
(T) On behalf of the director, a law enforcement officer requesting a chemical test or directing the administration of a chemical test pursuant to section 12-6-12.1E and F shall serve immediate written notice of revocation and of right to a hearing on a person who refuses to permit chemical testing or on a person who submits to a chemical test the results of which indicate an alcohol concentration of eight one- hundredths or more in the person's blood or breath if the person is twenty-one years of age or older or an alcohol concentration of two one-hundredths or more in the person's blood or breath if the person is less than twenty-one years of age. Upon serving notice of revocation, the law enforcement officer shall take the license or permit of the driver, if any, and issue 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 department issues the order following that hearing; provided that no temporary license shall be issued to a driver without a valid license or permit. The law enforcement officer shall send the person's driver's license to the director along with the signed statement required pursuant to subsection S of this section.
(Ord. 2014-2, 2-11-2014)
B. Section 12-6-12.2 of the 2010 New Mexico uniform traffic ordinance which was adopted as the official traffic ordinance is hereby amended as follows: (Ord. 2014-2, 2-11-2014; amd. Ord. 2018-13, 10-23-2018)
(A) If a person is convicted of driving a motor vehicle while under the influence of intoxicating liquor or drug (12-6-12.1A through D) the trial judge shall be required to inquire into the past driving record of the person before sentence is entered in the matter.
(B) When a person is charged with a violation of 12-6-12.1A through D, any plea of guilty thereafter entered in satisfaction of the charges shall include at least a plea of guilty to violation of 12-6-12.1A, B, C or D and no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized if:
(1) The results of a test performed pursuant to the implied consent act discloses that the blood of the person charged contains an alcohol concentration of eight one-hundredths or more; or,
(2) The defendant has refused to submit to a chemical test or tests of his breath or blood.
(C) Every person under first conviction under this section shall be punished by imprisonment for not more than one hundred seventy-nine (179) days or by a fine of not more than nine hundred ninety-nine ($999.00) dollars, or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond one hundred seventy-nine (179) days but shall not exceed one year. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of sentence:
(1) Upon conviction, each offender shall be sentenced to a jail term of not less than seventy-two hours, which jail term shall not be suspended or deferred or taken under advisement and
(2) The offender shall further be ordered by the court to a driver rehabilitation program for alcohol, drugs, also known as a "DWI school", approved by the traffic safety bureau of the state highway and transportation department and the court, and
(3) The offender shall further be sentenced to a fine of not less than one hundred ($100.00) dollars which fine shall not be suspended or deferred or taken under advisement, and
(4) The court shall further require the offender to participate and complete, within a time specified by the court, an alcohol or drug abuse screening program and if necessary, a treatment program approved by the court.
(5) The court may in its discretion further order the offender to complete a program of not less than 24 hours of community service.
(6) In addition to the aforementioned penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced an additional twenty-four hours in jail and which minimum ninety-six hours in jail shall not be suspended or deferred or taken under advisement.
(7) 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, the offender shall be sentenced to not less than an additional forty-eight (48) consecutive hours in jail. Any jail sentence imposed under this subsection shall not be suspended, deferred or taken under advisement.
(8) On any conviction under 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 under this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.
(Ord. 2014-2, 2-11-2014)
(D) Second and subsequent offenses shall be prosecuted under state law in magistrate or district court.
(Ord. 2017-1, 2-14-2017)
(E) Except as otherwise prohibited in this section, a municipal judge may suspend in whole or in part the execution of sentence or place the defendant on probation for a period not exceeding one year on terms and conditions that municipal judge deems best, or both, or defer sentence. A suspension of execution of sentence or probation, or both, as allowed pursuant to this section, shall be granted only when the municipal judge is satisfied it will serve the ends of justice and of the public, and that the defendant's liability for any fine or other punishment imposed is fully discharged upon successful completion of the terms and conditions of probation.
(F) The municipal court shall forward to the division the abstract for all proceedings and the report of the disposition of the case. For the purpose of this subsection, marijuana, as defined in the controlled substances act, shall be classified as a drug.
(G) A person convicted of driving a motor vehicle while under the influence of intoxicating liquor or drug in violation of 12-6-12.1A, B, C, or D shall be assessed, in addition to any other fee or fine, a fee of eighty-five dollars ($85.00) to defray the costs of chemical and other tests utilized to determine the influence of liquor or drug. Additionally, the person shall be assessed a fee of seventy-five dollars ($75.00) to fund comprehensive community programs for the prevention of driving while under the influence of intoxicating liquor or drugs or for other traffic safety purposes. The municipal court shall collect the fees and maintain the fees in separate funds and transfer the fees along with other funds collected by the court per 35-14-7 NMSA 1978. The municipality shall maintain the fees collected pursuant to this subsection in separate funds and transfer the fees collected pursuant to this subsection to the administrative office of the courts for credit to the crime laboratory fund and the traffic safety fund. The court will assess and collect any other fees imposed by the state or by the city.
(H) As used in this section and in 12-6-12.1:
(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) "Conviction" means an adjudication of guilt and does not include imposition of a sentence.
C. Section 12-6-12.6 will remain unchanged.
(Ord. 2014-2, 2-11-2014)