§ 24-12-6-12.1. Operating a motor vehicle under the influence of intoxicating liquor or drugs; chemical testing; officer to file statement; immediate license revocation.

A.

It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this municipality.

B.

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.

C.

It is unlawful for a person who is under the influence of any drug to a degree which renders him incapable of safely driving a vehicle to drive a 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)

drives a vehicle in this state and has an alcohol concentration of sixteen 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;

(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, 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 12-6-12.1E, 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 a 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 or less, 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, 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 vehicle and the amount of alcohol in the person's blood or breath may be considered with other competent evidence in determining whether or not the person was under the influence of intoxicating liquor;

(3)

an alcohol concentration of eight one-hundredths or more, the arresting officer shall charge him with a violation of this section; or

(4)

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.

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.

P.

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.

Q.

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.

R.

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.

S.

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 12-6-12.1 E 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 12-6-12.1 E 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 12-6-12.1 E and F will produce material evidence in a felony prosecution.

T.

If a law enforcement officer has reasonable grounds to believe that a person arrested for violation of Subsections A, B, C or 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 what 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.

U.

On behalf of the director, a law enforcement officer requesting a chemical test or directing the administration of a chemical test pursuant to Section 12-6-12.1 E 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 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 vehicle or two one-hundredths or more 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 a temporary license shall not 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. No. 1567 , 5-29-18)

State law reference

66-8-102, 66-8-104, 66-8-107—66-8-111 and 66-8-111.1 NMSA 1978.