HOUSE BILL 4
55th legislature - STATE OF NEW MEXICO - first special session, 2021
INTRODUCED BY
William "Bill" R. Rehm
AN ACT
RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUGS OR ADULT-USE RECREATIONAL CANNABIS; ADDRESSING ROAD SAFETY ISSUES RELATED TO LEGALIZATION OF ADULT-USE RECREATIONAL CANNABIS; PROVIDING FOR TESTIMONY BY INTERACTIVE VIDEO; PROHIBITING DRIVING WITH CERTAIN AMOUNTS OF CONTROLLED SUBSTANCES OR METABOLITES IN THE BLOOD; 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; CLARIFYING THAT THE CHEMICAL BLOOD TEST MAY BE FOR DRUGS OR ALCOHOL; PROVIDING FOR IMPLIED CONSENT TO A LABORATORY ANALYST'S APPEARANCE BY VIDEO; PROVIDING THAT THE IGNITION INTERLOCK REQUIREMENT ONLY APPLIES TO OFFENDERS WITH ALCOHOL CONCENTRATION IN THEIR BLOOD OR BREATH.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Implied Consent Act is enacted to read:
"[NEW MATERIAL] PROCEDURE--VIDEO APPEARANCE.--If a party subpoenas an analyst to testify at a court proceeding for any purpose, the analyst may appear by interactive video. An interactive video appearance shall provide a full and meaningful opportunity to question and cross-examine the witness in plain sight and clear hearing of the judge, jury, all parties and counsel, with the witness able to clearly see and hear the proceeding."
SECTION 2. 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.--
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. It is unlawful for a person to drive a vehicle in this state if the person has the following amount or more of a controlled substance or metabolite in the person's blood within three hours of driving the vehicle and the controlled substance or metabolite concentration results from consumption of a controlled substance before or while driving the vehicle:
(1) for amphetamine, one hundred nanograms per milliliter of blood;
(2) for cocaine, fifty nanograms per milliliter of blood;
(3) for cocaine metabolite, cocaethylene, fifty nanograms per milliliter of blood;
(4) for heroin, fifty nanograms per milliliter of blood;
(5) for heroin metabolite, morphine, fifty nanograms per milliliter of blood;
(6) for heroin metabolite, 6-monoacetylmorphine, ten nanograms per milliliter of blood;
(7) for the active compound in marijuana, delta-9-tetrahydrocannabinol, five nanograms per milliliter of blood;
(8) for methamphetamine, one hundred nanograms per milliliter of blood; or
(9) for 3,4-methylenedioxymethamphetamine, one hundred nanograms per milliliter of blood.
E. The provisions of Subsections A and B of this section shall not be construed to make it unlawful to drive a vehicle if the prohibited concentrations of alcohol, controlled substances or metabolites are not exceeded as provided in Subsections C and D of this section. A person who is under the influence of any drug not named in Subsection D of this section is subject to the provisions of Subsection B of this section.
[D.] F. 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 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.] G. 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] N 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 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.] H. A second or third conviction pursuant to this section shall be punished, notwithstanding the provisions of 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 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.] I. 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.] J. 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.] K. 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, 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.] L. 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.] M. 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.] N. 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.] O. Upon a second or third conviction pursuant to this section, an offender shall be required to participate in 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.] P. 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.] Q. Upon a conviction pursuant to this section, an offender who had an alcohol concentration as set out in Subsection C of this section 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 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:
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