Chapter 10.10
AMENDMENTS TO THE STATE UNIFORM TRAFFIC ORDINANCE

Sections:

10.10.010    Amendments to Section 12-1 – Definitions.

10.10.020    Amendments to Section 12-4 – Accident reports.

10.10.030    Amendments to Section 12-6 – Traffic regulations.

10.10.040    Amendment to Section 12-9-9 – Parking in designated disabled parking spaces.

10.10.050    Amendment to Section 12-10-6 – Mandatory financial responsibility.

10.10.060    Amendments to Section 12-12 – Penalties and procedures on arrest.

10.10.010 Amendments to Section 12-1 – Definitions.

Section 12-1-10.1 is added to read as follows:

12-1-10.1 COMMERCIAL MOTOR VEHICLE. “Commercial motor vehicle” means a self-propelled or towed vehicle, other than special mobile equipment, used on public highways in commerce to transport passengers or property when the vehicle is operated interstate and has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of four thousand five hundred thirty-six kilograms, or ten thousand one pounds or more; or is operated only in intrastate commerce and has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of twenty-six thousand one or more pounds. (66-1-4.3 J NMSA 1978)

Section 12-1-21 is amended to read as follows:

12-1-21 DRIVER. “Driver” means every person who drives or is in actual physical control of a motor vehicle, including a motor-driven cycle, upon a street or who is exercising control over, or steering, a vehicle being towed by a motor vehicle or who operates or is in actual physical control of an off-highway motor vehicle. (66-1-4.4 K NMSA 1978)

Section 12-1-36 is amended to read as follows:

12-1-36 MOPED. “Moped” means a two-wheeled or three-wheeled vehicle with an automatic transmission and a motor having a piston displacement of less than fifty cubic centimeters, which is capable of propelling the vehicle at a maximum speed of not more than thirty miles an hour on level ground at sea level. (66-1-4.11 NMSA 1978)

Section 12-1-40 is amended to read as follows:

12-1-40 MOTOR VEHICLE. “Motor Vehicle” means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from batteries or from overhead trolley wires, but not operated upon rails; but for the purposes of the Mandatory Financial Responsibility Act [66-5-201 to 66-5-239 NMSA 1978], “motor vehicle” does not include “special mobile equipment.” (66-1-4.11 NMSA 1978)

Section 12-1-58 is amended to read as follows:

12-1-58 RECREATIONAL VEHICLE. “Recreational Vehicle” means a vehicle with a camping body that has its own motive power, is affixed to or is drawn by another vehicle and includes motor homes, travel trailers and truck campers. (66-1-4.15 NMSA 1978)

Section 12-1-73 is amended to read as follows:

12-1-73 STATE HIGHWAY. “State Highway” means any public highway which has been designated as a state highway by the legislature, the state transportation commission or the secretary of the state transportation department. (66-1-4.16 NMSA 1978)

Section 12-1-78 is amended to read as follows:

12-1-78 SUSPENSION. “Suspension” means that the driver’s license and privilege to drive a motor vehicle on the public highways are temporarily withdrawn. (66-1-4.16 NMSA 1978)

Section 12-1-84.1 is added to read as follows:

12-1-84.1 TRIBE. “Tribe” means an Indian nation, tribe or pueblo that is located wholly or partially in New Mexico. For purposes of violations resulting in suspension or revocation of licenses and for DWI offenses (66-5-25, 26, 30 and 66-8-102), “tribe” is further defined as one that has executed an intergovernmental agreement with the state pursuant to Section 66-5-27.1 NMSA 1978. (66-1-4.17 and 66-5-1.2 NMSA 1978) (*)

[Ord. 212 § 1, 2004].

10.10.020 Amendments to Section 12-4 – Accident reports.

Section 12-4-6 is amended to read as follows:

12-4-6 IMMEDIATE NOTICE OF ACCIDENTS.

A. The driver of a vehicle involved in an accident resulting in injury to or death of any person, or property damage to an apparent extent of five hundred dollars ($500) or more, shall immediately, by the quickest means of communication, give notice of such accident to the police department if the accident occurs within a municipality; otherwise to the office of the county sheriff or the nearest office of the New Mexico state police. (66-7-206 NMSA 1978)

Section 12-4-7 is amended to read as follows:

12-4-7 WRITTEN REPORTS OF ACCIDENTS.

A. The driver of a vehicle involved in an accident resulting in bodily injury to or death of any person or total property damage to an apparent extent of five hundred dollars ($500) or more shall, within five days after such accident, forward a written report of such accident to the police department and state department of transportation. (66-7-207 NMSA 1978)

F. Every police officer who, in the regular course of duty, investigates a motor vehicle accident of which report must be made as required in this section, either at the time of and at the scene of the accident or thereafter by interviewing participants or witnesses shall, within twenty-four hours after completing such investigation, forward a written report of such accident to the police department and state department of transportation. (66-7-207 NMSA 1978)

Section 12-4-10 is amended to read as follows:

12-4-10 WRITTEN ACCIDENT REPORTS CONFIDENTIAL – EXCEPTIONS.

A. All accident reports made by persons involved in accidents or by persons in charge of garages shall be without prejudice to the individual so reporting and shall be for the confidential use of the police department and state department of transportation or state agencies having use for the records for accident prevention purposes or for the administration of the laws of this state relating to the deposits of security and proof of financial responsibility by persons driving or the owners of motor vehicles, except that the police department and state department of transportation may disclose:

C. The police department and state department of transportation shall furnish upon demand of any person who has or claims to have made a report or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the police department and state department of transportation solely to prove a compliance or a failure to comply with the requirement that a report be made to the police department.

D. A certified copy of the investigating officer’s accident report may be introduced into evidence in any arbitration or civil action involving the insurer’s liability under a motor vehicle or automobile liability policy containing uninsured motorist coverage as required by Section 66-5-301 NMSA 1978 to prove that the owner or operator of the other motor vehicle involved in the accident is either insured or uninsured. The police department and investigating agency shall furnish a certified copy of the investigating officer’s accident report to either party to the arbitration or civil action or to the court on request. The certified copy of the investigating officer’s report is prima facie evidence that the owner or operator of the other motor vehicle is either insured or uninsured. (66-7-213 NMSA 1978)

[Ord. 212 § 1, 2004].

10.10.030 Amendments to Section 12-6 – Traffic regulations.

Section 12-6-6.14(C) is added to read as follows:

12-6-6.14 STOPPING, STANDING OR PARKING OUTSIDE OF BUSINESS OR RESIDENCE DISTRICTS.

C. The state department of transportation, unless otherwise directed by an investigating police officer, or a police officer may remove or cause to be removed a vehicle or other obstruction from the paved or main-traveled part of a highway to the nearest place of safety if the vehicle or other obstruction obstructs traffic or poses a traffic hazard. (66-7349 C NMSA 1978)

Section 12-6-7.5 is amended to read as follows:

12-6-7.5 RAILROAD-HIGHWAY GRADE CROSSING VIOLATIONS – ALL DRIVERS.

A. A person driving a vehicle approaching a railroad-highway grade crossing shall:

1. Obey traffic control devices, crossing gates or barriers or the directions of an enforcement official at the crossing;

2. Stop not more than fifty feet and not less than fifteen feet from the nearest rail of a crossing if:

a. A train is moving through or blocking the crossing;

b. A train is plainly visible and approaching the crossing within hazardous proximity to the crossing;

c. The sound of a train's warning signal can be heard; or

d. A traffic control device, crossing gate, barrier or light or an enforcement official signals the driver to stop; and

3. Proceed through the railroad-highway grade crossing only if it is safe to completely pass through the entire railroad-highway grade crossing without stopping.

B. A person shall not:

1. Drive a vehicle through, around or under a crossing gate or barrier at a railroad-highway grade crossing while the gate or barrier is closed or being opened or closed;

2. Drive onto the railroad-highway grade crossing and stop; or

3. Enter a crossing if the vehicle being driven has insufficient undercarriage clearance to pass over the crossing.

C. The penalty assessment for violation of this section is included in the penalty assessment schedule.

Section 12-6-7.7 is amended to read as follows:

12-6-7.7 RAILROAD-HIGHWAY GRADE CROSSING VIOLATIONS – CERTAIN VEHICLES REQUIRED TO ALWAYS STOP – EXCEPTIONS.

A. Except as set forth in Subsection D of this section, a driver of a vehicle carrying passengers for hire, a school bus carrying school children or a vehicle carrying hazardous materials, radioactive or explosive substances or flammable liquids as cargo or as part of its cargo, before entering a railroad-highway grade crossing, is required to stop no more than fifty feet and no less than fifteen feet from the nearest rail of the railroad.

B. While stopped, the driver shall:

1. Look and listen in both directions along the track for an approaching train and for signals indicating that a train is approaching;

2. Determine it is safe to proceed completely through the railroad-highway grade crossing before entering it; and

3. Set the vehicle in a gear sufficiently low that gears will not need to be shifted before exiting the railroad-highway grade crossing.

C. A driver shall not shift gears while in a railroad-highway grade crossing.

D. A driver of a vehicle carrying passengers for hire, a school bus carrying school children or a vehicle carrying hazardous materials, radioactive or explosive substances or flammable liquids as cargo or as part of its cargo is not required to stop at:

1. A railroad-highway grade crossing where a police officer directs traffic to proceed;

2. A railroad-highway grade crossing where a stop-and-go traffic light controls movement of traffic.

3. A railroad-highway grade crossing used exclusively for industrial switching purposes, within a business district as defined in Section 66-1-4.2 NMSA 1978;

4. A railroad-highway grade crossing where use of the railroad has been abandoned and there is a sign indicating that the railroad has been abandoned; or

5. An industrial or spur line railroad-highway grade crossing marked with a sign reading “exempt crossing” that has been designated as exempt by appropriate state or local authorities.

E. Penalties for violation of this section are included in the penalty assessment schedule. (66-7-343 NMSA 1978)

Section 12-6-11.1 is amended to read as follows:

12-6-11.1 PERMIT FOR EXCESSIVE SIZE AND WEIGHT – SPECIAL NOTIFICATION REQUIRED ON MOVEMENT OF MANUFACTURED HOMES.

C. The department shall promulgate regulations in accordance with the State Rules Act pertaining to safety practices, liability insurance and equipment for escort vehicles provided by the motor carrier himself and for escort vehicles provided by a private business in this state.

1. If a motor carrier provides his own escort vehicles and personnel, the department shall not charge an escort fee but shall provide the motor carrier escort personnel with a copy of applicable regulations and shall inspect the escort vehicles for the safety equipment required by the regulations. If the escort vehicles and personnel meet the requirements set forth in the regulations and if the motor carrier holds a valid certificate of public convenience and necessity or permit, as applicable, issued pursuant to Chapter 65, Article 2 NMSA 1978, the department shall issue the special permit.

2. If the escort service is a private business, the business shall have applied to the public regulation commission for and been issued a permit or certificate to operate as a contract or common motor carrier pursuant to Chapter 65, Article 2 NMSA 1978. The public regulation commission shall supply copies of applicable regulations to the business by mail and shall supply additional copies upon request. If the escort vehicles and personnel meet the requirements set forth in the regulations and if the escort service holds a certificate, the special permit shall be issued and the department shall not charge an escort fee.

D. Except for the movement of manufactured homes, special permits may be issued for a single vehicle or combination of vehicles by the department for a period not to exceed one year for a fee of sixty dollars ($60). The permits may allow excessive height, length and width for a vehicle or combination of vehicles or load thereon and may include a provision for excessive weight if the operation is to be within the vicinity of a municipality. Utility service vehicles, operating with special permits pursuant to this subsection, shall be exempt from prohibitions or restrictions relating to hours or days of operation or restrictions on movement because of poor weather conditions. (66-7-413 D NMSA 1978)

F. If the vehicle for which a permit is issued under this section is a manufactured home, the department or local highway authority issuing the permit shall furnish the following information to the property tax division of the department, which shall forward the information:

M. Any common motor carrier requesting an oversize permit shall produce a copy of a form “e” or other acceptable evidence that the common motor carrier maintains the insurance minimums prescribed by the public regulation commission. (66-7-413 NMSA 1978)

Section 12-6-12.1 is amended to read as follows:

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 who has an alcohol concentration of eight one-hundredths or more in his blood or breath to drive a vehicle within this municipality; or

2. A person who has an alcohol concentration of four one hundredths or more in his blood or breath to drive a commercial vehicle within this municipality.

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.

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 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 if the person is driving a commercial vehicle. (66-8-110 NMSA 1978)

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 12-6-12.1 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. (66-8-111.1 NMSA 1978)

Section 12-6-12.2 is amended to read as follows:

12-6-12.2 OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PENALTIES; SENTENCING; FEES.

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 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;

2. Four one-hundredths or more if the person is driving a commercial vehicle; or

3. The defendant has refused to submit to a chemical test or tests of his breath or blood. (66-8-102 NMSA 1978 as amended)

C. A person under first conviction pursuant to this section shall be punished by imprisonment for not more than ninety days or by a fine of not more than nine hundred ninety-nine dollars ($999.00), 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 ($300.00). The offender shall be ordered by the court to participate in and complete a screening program described in Subsection F of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a “DWI school,” approved by the traffic safety bureau of the state highway and transportation department 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 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 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 parole, the offender shall be sentenced to not less than an additional forty-eight consecutive hours in jail. Notwithstanding any provision of law to the contrary, if an offender’s sentence was suspended or deferred in whole or in part, and the offender violates a condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation. Any jail sentence imposed pursuant to this section 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, 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.

D. A second or third conviction pursuant to this section shall be punished by imprisonment for not more than one hundred seventy-nine days or by a fine of not more than nine hundred ninety-nine dollars ($999.00), or both; provided that if the sentence is suspended in whole or part, the period of probation may extend beyond one hundred seventy-nine days but shall not exceed one year. Notwithstanding any provision 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 ninety-six consecutive hours, forty-eight hours of community service and a fine of five hundred dollars ($500.00). 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 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

F. 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.

G. 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 program approved by the court;

2. Not less that 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 approved by the court.

The requirement imposed pursuant to this section shall not be suspended, deferred or taken under advisement. (66-8-102 NMSA 1978)

H. Upon a first conviction for aggravated driving while under the influence of intoxicating liquor or drugs pursuant to the provisions of Subsection D of section 12-6-12.1, 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 traffic safety bureau of the state highway and transportation department. 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.

I. Upon a first conviction for driving while under the influence of intoxicating liquor or drugs pursuant to the provisions of Subsections A, B or C of section 12-6-12.1, 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 traffic safety bureau of the state highway and transportation department. 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 any subsequent conviction pursuant to section 12-6-12.1, as a condition of probation, a subsequent 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 subsequent offender, pursuant to rules adopted by the traffic safety bureau of the state highway and transportation department. 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 offender may be in violation of the terms and conditions of his probation.

K. 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. If the municipal judge decides to defer the execution of a sentence, such deferral shall be granted only as allowed in Subsection L of this section. 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 if fully discharged upon successful completion of the terms and conditions of probation.

L. If a person is convicted of driving a motor vehicle while under the influence of intoxicating liquor or drugs in violation of 12-6-12.1A, B, C or D, a first offender, at the discretion of a trial court after a presentence investigation, including an inquiry to the motor vehicle division of the transportation department concerning the driver’s driving record, shall receive a deferred sentence on the condition that the driver attend a driver rehabilitation program, also known as the “driving-while-intoxicated-school,” approved by the court and the division and such other rehabilitative services as the court may determine to be necessary; however, imposition of a deferred sentence shall classify the person as a first offender. The municipal court shall forward to the division the abstract of all proceedings and the report of the disposition of the case. For the purpose of this subsection, marijuana, as defined in the Controlled Substance Act, shall be classified as a drug. (*)

M. A person convicted of driving a motor vehicle while under the influence of intoxicating liquor or drugs 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 sixty-five dollars ($65.00) to defray the cost of chemical and other tests used to determine the influence of alcohol or drugs. 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 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. (31-12-7 through 31-12-9 NMSA 1978)

N. As used in this section and in 12-6-12.1:

1. “Bodily injury” means an injury to a person 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 adjudication of guilt and does not include imposition of a sentence.

3. “Commercial motor vehicle” means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

a. Has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;

b. Has a gross vehicle weight rating of more than twenty-six thousand pounds;

c. Is designed to transport sixteen or more passengers, including the driver; or

d. Is of any size and is used in the transportation of hazardous materials, which requires the motor vehicle to be placarded under applicable law.

O. 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 or of a tribe where that ordinance is equivalent to New Mexico law for driving while under the influence of intoxicating liquor or drugs, prescribing 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. (66-8-102.M NMSA 1978)

Section 12-6-12.19 is amended to read as follows:

12-6-12.19 RACING ON STREETS.

B. As used in this section:

1. “Drag race” means the operation of two (2) or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one (1) or more vehicles over a common selected course from the same point to the same point for the purpose of comparing the relative speeds or power of acceleration of the vehicle or vehicles within a certain distance or time limit;

2. “Race” means the use of one (1) or more vehicles in a manner to outgain or outdistance another vehicle, prevent another vehicle from passing, arrive at a given destination ahead of another vehicle or test the physical stamina or endurance of drivers over long-distance routes. (66-8-115 NMSA 1978)

3. “Exhibition driving” consists of intentionally fish-tailing, peeling-out, losing traction, and burning of rubber while operating a motorcycle or motor-driven cycle, includes intentionally operating the vehicle on a single tire (commonly known as a “wheelie”); operating a vehicle from a standing position; or operating the vehicle without at least one hand gripping the handlebars. (*)

Section 12-6-13.11 is amended to read as follows:

12-6-13.11 DRIVING ON MOUNTAIN STREETS. The driver of a motor vehicle traveling through defiles or canyons or on mountain streets shall hold such motor vehicle under control and as near the right-hand edge of the street as reasonably possible. (66-7-359 NMSA 1978)

Section 12-6-13.14 is amended to read as follows:

12-6-13.14 CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGES IN OPEN CONTAINERS IN A MOTOR VEHICLE PROHIBITED – EXCEPTIONS.

D. The provisions of this section do not apply to:

1. Any person who, upon the recommendation of a doctor, carries alcoholic beverages in that person’s motor vehicle for medicinal purposes;

2. Any clergyman or his agent who carries alcoholic beverages for religious purposes in the clergyman’s or his agent’s motor vehicle; or

3. Any person who is employed by a person licensed by the Alcoholic Beverage Control Act, while discharging his duties as an employee (66-8-138)

Section 12-6-17 is amended to read as follows:

12-6-17 BOATING REGULATIONS AND OFFENSES – BOATING WHILE INTOXICATED ACT.

12-6-17.1 DEFINITIONS.

A. “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;

B. “Conviction” means an adjudication of guilt and does not include imposition of a sentence;

C. “Motorboat” means any boat, personal watercraft or other type of vessel propelled by machinery, whether or not machinery is the principal source of propulsion. “Motorboat” includes a vessel propelled or designed to be propelled by a sail, but does not include a sailboard or a windsurf board. “Motorboat” does not include a houseboat or any other vessel that is moored on the water, but not moving on the water; and

D. “Operate” means to physically handle the controls of a motorboat that is moving on the water.

12-6-17.2 OPERATING A MOTORBOAT WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.

A. It is unlawful for a person who is under the influence of intoxicating liquor to operate a motorboat.

B. It is unlawful for a person who is under the influence of any drug to a degree that renders him incapable of safely operating a motorboat to operate a motorboat.

C. It is unlawful for a person who has an alcohol concentration of eight one hundredths or more in his blood or breath to operate a motorboat.

D. Aggravated boating 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 operating a motorboat;

2. Has caused bodily injury to a human being as a result of the unlawful operation of a motorboat while under the influence of intoxicating liquor or drugs; or

3. Refused to submit to chemical testing, as provided for in the Boating While Intoxicated 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. The offender shall be ordered by the court to attend a boating safety course approved by the national association of state boating law administrators. An offender ordered by the court to attend a boating safe course shall provide the court with proof that the offender successful completed the course within seven months of his conviction or prior to completion of his probation, whichever period of time is less. In addition to those penalties, when an offender commits aggravated boating while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail and may be fined not more than seven hundred fifty dollars ($750). On a first 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 pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.

F. A second or subsequent 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 seven hundred fifty dollars ($750), or both; provided that if the sentence is suspended in whole or in part, the period of probation shall not exceed one year. In addition to those penalties, when an offender commits aggravated boating while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail and may be fined not more than one thousand dollars ($1,000).

12-6-17.3 GUILTY PLEAS – LIMITATIONS.

A. When a complaint or information alleges a violation of 12-6-17.2 any plea of guilty thereafter entered in satisfaction of the charges shall include at least a plea of guilty to the violation of one of the subsections of 12-6-17.2, and no other disposition by plea of guilty to any other charge in satisfaction of the charge shall be authorized if the results of a test performed pursuant to that act disclose that the blood or breath of the person charged contains an alcohol concentration of eight one hundredths or more.

12-6-17.4 BLOOD-ALCOHOL TESTS – PERSONS QUALIFIED TO PERFORM TESTS – RELIEF FROM CIVIL AND CRIMINAL LIABILITY.

A. Only a physician, licensed professional or practical nurse or laboratory technician or technologist employed by a hospital or physician shall withdraw blood from a person in the performance of a blood-alcohol or drug test. A physician, nurse, technician or technologist who withdraws blood from a person in the performance of a blood-alcohol or drug test that has been directed by a law enforcement officer, or by a judicial or probation officer, shall not be held liable in a civil or criminal action for assault, battery, false imprisonment or any conduct of a law enforcement officer, except for negligence, nor shall a person assisting in the performance of the test, or a hospital wherein blood is withdrawn in the performance of the test, be subject to civil or criminal liability for assault, battery, false imprisonment or any conduct of a law enforcement officer, except for negligence.

12-6-17.5 BLOOD-ALCOHOL TEST – LAW ENFORCEMENT, JUDICIAL OR PROBATION OFFICER UNAUTHORIZED TO MAKE ARREST OR DIRECT TEST EXCEPT IN PERFORMANCE OF OFFICIAL DUTIES AUTHORIZED BY LAW.

A. Nothing in this Act is intended to authorize a law enforcement officer, or a judicial or probation officer, to make an arrest or direct the performance of a blood-alcohol or drug test, except in the performance of his official duties or as otherwise authorized by law.

12-6-17.6 IMPLIED CONSENT TO SUBMIT TO CHEMICAL TEST.

A. A person who operates a motorboat within this state shall be deemed to have given consent, subject to the provisions of the Boating While Intoxicated Act, to chemical tests of his blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978 as determined by a law enforcement officer, or for the purposes of determining the drug or alcohol content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was operating a motorboat while under the influence of an intoxicating liquor or drug.

B. The arrested person shall be advised by a law enforcement officer that failure to submit to a chemical test may be introduced into evidence in court and that the court, upon conviction, may impose increased penalties for the person’s failure to submit to a chemical test.

C. A test of blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of 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 operating a motorboat while under the influence of an intoxicating liquor or drug.

D. A person who operates a motorboat in this state and who is involved in a fatal boating incident shall be deemed to have given consent, subject to the provisions of the Boating While Intoxicated Act, to mandatory chemical tests of his blood or breath or both, as determined by a law enforcement officer and approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978.

12-6-17.7 CONSENT OF PERSON INCAPABLE OF REFUSAL NOT WITHDRAWN.

A. A 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 the Boating While Intoxicated Act, and the test designated by the law enforcement officer may be administered.

12-6-17.8 ADMINISTRATION OF CHEMICAL TEST – PAYMENT OF COSTS – ADDITIONAL TESTS.

A. Only the persons authorized by the Boating While Intoxicated Act shall withdraw blood from a person for the purpose of determining its alcohol or drug content. This limitation does not apply to the taking of samples of breath.

B. 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 a test performed at the direction of a law enforcement officer.

C. Upon the request of the person tested, full information concerning the test 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.

D. The agency represented by the law enforcement officer at whose direction the chemical test is performed shall pay for the chemical test.

E. If a person exercises his right under Subsection B of this section to have a chemical test performed upon him by a person of his own choosing, the cost of that test shall be paid by the agency represented by the law enforcement officer at whose direction a chemical test was administered pursuant to 12-6-17.6.

12-6-17.9 USE OF TESTS IN CRIMINAL OR CIVIL ACTIONS – LEVELS OF INTOXICATION – MANDATORY CHARGING.

A. The results of a test performed pursuant to the Boating While Intoxicated Act may be introduced into evidence in a civil action or criminal action arising out of the acts alleged to have been committed by the person tested for operating a motorboat while under the influence of intoxicating liquor or drugs.

B. When the blood or breath of the person tested contains:

1. An alcohol concentration of five one hundredths or less, it shall be presumed that the person was not under the influence of intoxicating liquor; or

2. An alcohol concentration of more than five 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. However, the amount of alcohol in the person’s blood or breath may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor.

C. When the blood or breath of the person tested contains an alcohol concentration of eight one hundredths or more, the arresting officer shall charge him with a violation of 12-7-17.2.

D. 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.

E. The alcohol concentration in a person’s blood or breath shall be determined by a chemical test administered to the person within three hours of the alleged boating while under the influence of intoxicating liquor. In a prosecution pursuant to the provisions of the Boating While Intoxicated Act, it is a rebuttable presumption that a person is in violation of the provisions of that act if he has an alcohol concentration of eight one hundredths or more in his blood or breath as determined by a chemical test administered to the person within three hours of the alleged boating while under the influence of intoxicating liquor. If the chemical test is administered more than three hours after the alleged boating while under the influence of intoxicating liquor, the test result is admissible as evidence of the alcohol concentration in the person’s blood or breath at the time of the alleged boating and the trier of fact shall determine what weight to give the test result.

F. The presumptions in Subsection B of this section do not limit the introduction of other competent evidence concerning whether the person was under the influence of intoxicating liquor.

G. If a person is convicted of operating a motorboat while under the influence of intoxicating liquor or drugs, the trial judge shall be required to inquire into past convictions of the person for operating a motorboat while under the influence of intoxicating liquor or drugs before sentence is entered in the matter.

12-6-17.10. MOTORBOATS – INFLUENCE OF INTOXICATING LIQUOR OR DRUGS – FEE UPON CONVICTION.

A. A person convicted of a violation of the Boating While Intoxicated Act shall be assessed by the court, in addition to any other fee or fine, a fee of sixty-five dollars ($65.00) to defray the costs of chemical and other tests used to determine the influence of intoxicating liquor or drugs.

B. All fees collected pursuant to the provisions of this section shall be transmitted monthly to the crime laboratory fund. All balances in the crime laboratory fund collected pursuant to this section are appropriated to the administrative office of the courts for payment upon invoice to the scientific laboratory division of the department of health for the costs of chemical and other tests used to determine the influence of intoxicating liquor or drugs.

C. Payment of funds out of the crime laboratory fund of fees collected pursuant to this section shall be made upon vouchers issued and signed by the director of the administrative office of the courts upon warrants drawn by the department of finance and administration.

[Ord. 212 § 1, 2004].

10.10.040 Amendment to Section 12-9-9 – Parking in designated disabled parking spaces.

Section 12-9-9 is amended to read as follows:

12-9-9 PARKING IN DESIGNATED DISABLED PARKING SPACES.

A. It is unlawful for any person to park a motor vehicle not carrying registration plates or a placard indicating disability in accordance with Section 66-3-16 NMSA 1978 in a designated disabled parking space or in such a manner as to block access to any part of a curb cut. Any person who violates this section shall be subject to a fine of not less than one hundred dollars ($100) or more than three hundred dollars ($300). Failure to properly display a parking placard or special registration plate issued pursuant to Section 66-3-26 NMSA 1978 is not a defense against a charge of violation of Subsection A of this section.

B. As used in this section, “designated disabled parking space” means any space, including an access aisle, marked and reserved for the parking of a passenger vehicle that carries registration plates or a parking placard indicating disability in accordance with Section 66-3-16 NMSA 1978, and designated by a conspicuously posted sign bearing the international disabled symbol of a wheelchair and if paved, by a clearly visible depiction of this symbol painted in blue on the pavement of the space. “Curb cut” means a short ramp through a curb or built up to the curb designed for access by the handicapped. (66-14.4E and 66-7-352.5 NMSA 1978).

[Ord. 212 § 1, 2004].

10.10.050 Amendment to Section 12-10-6 – Mandatory financial responsibility.

Section 12-10-6 is amended to read as follows:

12-10-6 MANDATORY FINANCIAL RESPONSIBILITY.

A. No owner shall permit the operation of an uninsured motor vehicle, or a motor vehicle for which evidence of financial responsibility as was affirmed to the department is not currently valid, upon the streets or highways of New Mexico unless the vehicle is specifically exempted from the provisions of the Mandatory Financial Responsibility Act [66-5-201 to 66-5-239 NMSA 1978].

B. No person shall drive an uninsured motor vehicle, or a motor vehicle for which evidence of financial responsibility as was affirmed to the department is not currently valid, upon the streets or highways of New Mexico unless he is specifically exempted from the provisions of the Mandatory Financial Responsibility Act.

C. For the purposes of the Mandatory Financial Responsibility Act, “uninsured motor vehicle” means a motor vehicle for which a motor vehicle insurance policy meeting the requirements of the laws of New Mexico and of the secretary is not in effect or a surety bond or evidence of a sufficient cash deposit with the state treasurer. (66-5-205 NMSA 1978)

D. “Evidence of Financial Responsibility,” as used in this Section, means evidence of the ability to respond in damages for liability, on account of accidents occurring subsequent to the effective date of the evidence, arising out of the ownership, maintenance or use of a vehicle of a type subject to registration under the laws of New Mexico, in the following amounts:

1. Twenty-five thousand dollars ($25,000) because of bodily injury to or death of one person in any one accident;

2. Subject to this limit for one person, fifty thousand dollars ($50,000) because of bodily injury to or death of two or more persons in any one accident;

3. Ten thousand dollars ($10,000) because of injury to or destruction of property of others in any one accident; and

4. If evidence is in the form of a surety bond or a cash deposit with the state treasurer, the total amount shall be sixty thousand dollars ($60,000). (66-5-208 NMSA 1978)

E. Exemptions – Exempted from the mandatory financial responsibility provisions of this Section are the following:

1. A motor vehicle owned by the United States government, any state or any political subdivision of a state;

2. An implement of husbandry or special mobile equipment which is only incidentally operated upon the streets or highways within the limits of the municipality;

3. A motor vehicle operated upon a street or highway within the limits of the municipality only for the purpose of crossing such street or highway from one property to another;

4. A commercial motor vehicle registered or proportionally registered in New Mexico and any other jurisdiction, provided such motor vehicle is covered by a motor vehicle insurance policy or equivalent coverage or other form of financial responsibility in compliance with the laws of any other jurisdiction in which it is registered;

5. A motor vehicle approved as self-insured by the superintendent of insurance pursuant to Section 66-5-207.1 NMSA 1978; and

6. Any motor vehicle when the owner has submitted to the department a signed statement, in the form prescribed by the department, declaring that the vehicle will not be operated on the highways of New Mexico and explaining the reasons therefor. (66-5-207 NMSA 1978)

F. The office of the municipal court shall notify the Division of Motor Vehicles of the Transportation Department of the State of New Mexico of the conviction of any person violating the provisions of this Section.

G. Penalty. Any person found guilty of violating this Section shall be fined not more than three hundred dollars ($300) (66-5-205 E NMSA 1978) provided however, that no person charged with violating this section shall be convicted if he produces in court evidence of financial responsibility valid at the time of issuance of the citation. (*)

H. When a law enforcement officer issues a driver who is involved in an accident a citation for failure to comply with the provisions of the Mandatory Financial Responsibility Act, the law enforcement officer shall at the same time:

1. Issue to the driver cited a temporary operation sticker, valid for thirty days after the date the sticker is issued, and forward by mail or delivery to the department a duplicate of the issued sticker; and

2. Remove the license plate from the vehicle and send it with the duplicate of the sticker to the department or, if it cannot be removed, permanently deface the plate. (66-5-205.1 NMSA 1978)

[Ord. 212 § 1, 2004].

10.10.060 Amendments to Section 12-12 – Penalties and procedures on arrest.

Section 12-12-1.3 is amended to read as follows:

12-12-1.3 MANDATORY FEES UPON CONVICTION.

A. There is imposed upon any person convicted of violating any municipal ordinance the penalty for which carries a potential jail term or any ordinance relating to the operation of a motor vehicle the following mandatory fees:

1. A corrections fee of twenty dollars ($20.00);

2. A judicial education fee of two dollars ($2.00); and

3. A court automation fee of six dollars ($6.00).

B. As used in this ordinance, “convicted” means the defendant has been found guilty of a criminal charge by the municipal judge, either after trial, a plea of guilty or a plea of nolo contendere or has elected to pay a penalty assessment in lieu of trial.

C. All corrections fees collected shall be deposited in a special corrections fund in the municipal treasury and shall be used only for:

1. Municipal jailer training;

2. Construction planning, construction, operation and maintenance of the municipal jail;

3. Paying the costs of housing the municipality’s prisoners in a county jail or detention facility or housing juveniles in a detention facility;

4. Complying with federal match or contribution requirements relating to jails or juvenile detention facilities;

5. Providing in-patient treatment or other substance abuse programs in conjunction with or as an alternative to jail sentencing;

6. Defraying the cost of transporting prisoners to jails or juvenile detention facilities; or

7. Providing electronic monitoring systems.

D. A municipality may credit the interest collected from fees deposited in the special corrections fund to the municipality’s general fund.

E. All judicial education fees collected shall be remitted monthly to the state treasurer for credit to the judicial education fund and shall be used for the education and training, including production of benchbooks and other written materials, of municipal judges and other municipal court personnel.

F. All court automation fees collected shall be remitted monthly to the state treasurer for credit to the municipal court automation fund and shall be used for the purchase and maintenance of court automation systems in the municipal courts. The court automation system shall have the capability of providing, on a timely basis, electronic records in a format specified by the judicial information system council. (35-14-11 NMSA 1978)

Section 12-12-3 is amended to read as follows:

12-12-3 CONDUCT OF ARRESTING OFFICER – NOTICES BY CITATION.

A. Except as provided in Section 12-12-5, unless a penalty assessment or warning notice is given, whenever a person is arrested for any violation of this ordinance or other law relating to motor vehicles punishable as a misdemeanor, the arresting officer, using the uniform traffic citation, shall complete the information section and prepare a notice to appear in court, specifying the time and place to appear, have the arrested person sign the agreement to appear as specified, give a copy of the citation to the arrested person and release him from custody.

B. Whenever a person is arrested for violation of a penalty assessment misdemeanor and elects to pay the penalty assessment, the arresting officer, using the uniform traffic citation, shall complete the information section and prepare the penalty assessment notice indicating the amount of the penalty assessment, have the arrested person sign the agreement to pay the amount prescribed, give a copy of the citation along with a business reply envelope addressed to the municipal court with jurisdiction and release him from custody. No officer shall accept custody or payment of any penalty assessment. If the arrested person declines to accept a penalty assessment notice, the officer shall issue a notice to appear. (66-8-123 B NMSA 1978)

C. The arresting officer may issue a warning notice, but shall fill in the information section of the uniform traffic citation and give a copy to the arrested person after requiring his signature on the warning notice as an acknowledgment of receipt. No warning notice issued under this section shall be used as evidence of conviction for purposes of suspension or revocation of license under Section 66-5-30 NMSA 1978.

D. In order to secure his release, the arrested person must give his written promise to appear in court, or to pay the penalty assessment prescribed or acknowledge receipt of a warning notice.

E. Any officer violating this section is guilty of misconduct in office and is subject to removal. (66-8-123 NMSA 1978)

Section 12-12-9 is amended to read as follows:

12-12-9 HANDLING OF CITATIONS.

A. Any entity that wishes to submit uniform traffic citations required to be submitted to the department by electronic means must secure the prior permission of the department. (66-8-128D NMSA 1978)

B. Every police officer issuing a uniform traffic citation to an alleged violator of this ordinance or other law relating to motor vehicles shall dispose of the citations as indicated on the back of each copy. (66-8-133 NMSA 1978)

C. Citations spoiled or issued in error shall be marked “void” in large letters on the face, signed by the officer, and the copies disposed of as a valid warning notice. (66-8-133 NMSA 1978)

D. Upon filing of the uniform traffic citation in the municipal court, the citation may be disposed of only by trial in the court or by other official action by a judge of the court including, at the discretion of the municipal judge, forfeiture of bail or by payment of a fine to the traffic violations bureau of the court. (*)

E. The chief of police shall maintain or cause to be maintained a record of serially numbered warrants issued by the municipal court on traffic violation charges which are delivered to the police department for service and of the final disposition of all such warrants. (*)

F. The chief of police shall issue, keep a record and require a receipt for each serially numbered citation issued to individual police officers. (66-8-132 NMSA 1978)

G. It is a misdemeanor and official misconduct for any officer or other public official or employee to dispose of a uniform traffic citation except as provided in this section. (66-8-133 NMSA 1978)

[Ord. 212 § 1, 2004].