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New Mexico

AMENDED DWI STATUTE, §66-8-102
(effective January 1, 2003)

CHAPTER 82, LAWS 2002

AN ACT RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR ORDRUGS; PROVIDING FOR THE INSTALLATION OF AN IGNITION INTERLOCKDEVICE ON MOTOR VEHICLES DRIVEN BY A FIRST-TIME OFFENDER;PROVIDING FOR PLACEMENT OF AN IGNITION INTERLOCK DEVICE ON MOTORVEHICLES DRIVEN BY SUBSEQUENT OFFENDERS; IMPOSING A FEE; CREATING A FUND; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
 
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. PERSONS UNDER THE INFLUENCE OF INTOXICATING LIQUOR
OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF
INTOXICATING LIQUOR OR DRUGS--PENALTY.--
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 him incapable of safely driving a vehicle to drive a vehicle within this state.
 
C. It is unlawful for a person who has an alcohol concentration of eight one-
hundredths or more in his blood or breath to drive a vehicle within this state.
 
D. Aggravated driving while under the influence of intoxicating liquor or
drugs consists of a person who:
 
    
(1) has an alcohol concentration of sixteen one-hundredths or more in
his blood or breath while driving a vehicle within this state;
 
(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, and in the judgment of the court, based upon evidence of intoxication presented to the court, was under the influence of intoxicating liquor or drugs.
   

E. Every person under 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 may be sentenced to not less than forty-eight hours of community service or 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 H 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. Inaddition to those penalties, when an offender commits aggravated driving while 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 specifiedby 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 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 while 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 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 anyprovision of law to the contrary for suspension or deferment of execution of a sentence:
 
   

(1) upon a second conviction, each offender shall be sentenced to a jail term of not less than seventy-two consecutive hours, forty-eight hours of communityservice and a fine of five hundred dollars ($500). In addition to those penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutivehours. If an offender fails to complete, within a time specified by the court, any communityservice, 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 and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not ess than sixty consecutive days. If an offender fails to complete, within a time specified bythe court, any 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 penaltyimposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.
 
G. Upon a fourth or subsequent conviction pursuant to this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement.
 
H. 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 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.
 
I. Upon a first conviction for aggravated driving while under the influence of
intoxicating liquor or drugs pursuant to the provisions of Subsection D of this section, as a condition of probation, an offender shall be required to have an ignition interlock device installed and operating for a period of one year on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If an offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the offender may be in violation of the terms and conditions of his probation.
 
J. Upon a first conviction for driving while under the influence of intoxicating
liquor or drugs pursuant to the provisions of Subsection A, B or C of this section, as a condition of probation, an offender may be required to have an ignition interlock device installed and operating for a period of one year on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If an offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the offender may be in violation of the terms and conditions of his probation.
 
K. Upon any subsequent conviction pursuant to this section, as a condition of
probation, a subsequent offender shall be required to have an ignition interlock device installed and operating for a period of at least one year on all motor vehicles driven by the subsequent offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the subsequent offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If a subsequent offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the subsequent offender may be in violation of the terms and conditions of his probation.
 
L. 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.
 
M. 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 that is equivalent to New Mexico law for driving while under the influence of intoxicating liquor or drugs, and that prescribes penalties for driving while 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.
 
N. In addition to any other fine or fee which 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.
 
O. 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 temporarydisfigurement 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."
 

 

Section 2. IMPOSING A FEE--CREATING A FUND.--

A. A fee is imposed on all persons who provide ignition interlock devices to
persons convicted of driving while under the influence of intoxicating liquor or drugs pursuant to Section 66-8-102 NMSA 1978 in the amount of ten percent of the amount charged to lease each ignition interlock device to a person convicted pursuant to that section and shall be paid monthly to the local government division of the department of finance and administration
 
B. The "interlock device fund" is created in the state treasury. The fee imposed pursuant to Subsection A of this section shall be distributed to the fund by the local government division of the department of finance and administration.
 
C. All money in the interlock device fund is appropriated to the local
government division of the department of finance and administration to cover the costs of installing and leasing ignition interlock devices to indigent people who are required, pursuant to convictions under Section 66-8-102 NMSA 1978, to install those devices in their vehicles. Indigency shall be determined by the sentencing court.
 
D. Any balance remaining in the interlock device fund shall not revert to the
general fund at the end of any fiscal year.
 
E. The interlock device fund shall be administered by the local government
division of the department of finance and administration.
 
Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2003.
SENATE JUDICIARY COMMITTEE SUBSTITUTE
FOR SENATE BILL 133

 

  

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DWI Notes for New Mexico (NM)

Driving while intoxicated known as DWI, DUI (driving under the influence) or OUI (operating under the influence) is a serious offense in New Mexico. Losing your license to operate a vehicle in NM is just one of the penalties. It is in your best interest to hire an experienced criminal defense attorney to handle your case. A lawyer who specializes in drunken driving cases will be able to defend your constitutional rights. The field sobriety tests, the breathalyzer or Alcotest blood alcohol content (BAC) readings may be flawed and could result in a not guilty verdict in court. Only an experienced DWI lawyer will know how these tests should be administered and whether they were performed according to the guidelines provided by the National Highway Traffic Safety Administration (NHTSA).

Standardized Field Sobriety Testing

The National Highway Traffic Safety Administration has created a set of Standardized Field Sobriety Test (SFST). These three tests have to be administered and evaluated in a standardized manner to obtain accurate indicators of impairment. Most police officers fail to administer these tests correctly. Your DWI attorney may be able to challenge the validity of the stop and arrest by reading the report submitted by the police officer or trooper or by the testimony provided in court.

The Standardized Field Sobriety Tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). NHTSA then developed a training regimen for law enforcement officers to provide a consistent way of evaluating the results from DWI suspects. Although police officers use a variety of tests when they pull someone over for suspected driving under the influence of alcohol, the three that are NHTSA accepted are:

  • Horizontal Gaze Nystagmus
  • Walk and Turn
  • One Leg Stand

Other tests, like counting backwards or saying the alphabet from one letter to another have not been proven to be reliable indicators of being intoxicated or under the influence. Keep in mind that even the reliable tests must be administered correctly for them to be valid indicators of DWI.
Horizontal Gaze Nystagmus (HGN) Testing

The horizontal gaze nystagmus test checks if you have involuntary twitching of the eyeball. This occurs naturally as the eyes gaze at a right angle towards the side. When someone is under the influence of alcohol, nystagmus (twitching of the eyeballs) occurs at lesser angles. During this test, the officer will have the subject follow a pen or light with his eyes. The officer must observe the subject eyes. The three indicators that the officer looks for in each eye are:

  • If the subject is smoothly following of the moving object with his/her eyes
  • If the eye begins to jerk distinctly at the maximum range (right angle)
  • If the angle of jerking begins within 45 degrees of center

According to the National Highway Traffic Safety Administration has determined that if between both eyes, four or more indicators are present the subject is probably under the influence. This test is therefore allowed for the purpose of making a DWI/DUI arrest and requiring a breath test at the police station.


Walk & Turn and One Leg Stand Tests

The other two tests that the National Highway Traffic Safety Administration believes are accurate predictors of DWI are the so called, “divided attention” tests. These tests can supposedly be done by most sober people. Although many police officers will tell you that they hear people say, “I can’t do that when I’m sober.” (By the way, this is not the wisest thing to say if you are a DWI suspect.) According to NHTSA, suspects cannot usually follow instructions and perform physical tests when they are impaired.

Walk & Turn

In the Walk & Turn test, the police officer will ask the DWI suspect to take nine steps placing the heel to the toe in a straight line. Someone suspected of DWI should follow instructions carefully for this test. The seven indicators of failure in the walk and turn are:

  • Failure to maintain balance while listening to instructions
  • Starting before the instructions are completely stated
  • Stopping while walking to regain balance
  • Lack of heel to toe touching
  • Using arms to regain or maintain balance
  • Loss of balance while turning
  • Taking an incorrect number of steps

NHTSA research indicates that the majority of DUI suspects who fail two or more of the above items are operating under the influence. You will be arrested and charged with DUI/DWI and required to provide a breath sample.

One Leg Stand

The one leg stand test requires the DWI suspect to stand with one foot approximately six inches off the ground and count aloud starting with one thousand and increasing by one (one thousand-one, one thousand-two, one thousand three, etc…) until told to lower the foot by the police officer. The officer is required to time the subject for 30 seconds. The four indicators of DWI impairment are:

  • Swaying while balancing
  • Using arms to balance
  • Hopping to maintain balance
  • Placing the foot down

NHTSA research indicates that the majority of DWI suspects who exhibit two or more of these indicators are under the influence.

Probable Cause

The field tests that are administered on the side of the road are used by police officers to establish probable cause for the arrest. Your DWI attorney may be able to challenge these tests as well as the reason you were stopped in the first place. In order for these tests to yield valid results they have to be administered in the proscribed manner and must be evaluated based on a total number of indicators. The more indicators are present, the more likely that the person is operating under the influence.

Because most people charged with DWI do not understand what these tests are looking for or how they should be administered, it is extremely important that a lawyer that specializes in DWI defense be used to examine all the evidence and provide a recommendation on how to proceed.

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