2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 5 - Licensing of Operators and Chauffeurs; Financial Responsibility; Uninsured Motorists' Insurance; Identification Cards
Section 66-5-39 - Driving while license suspended; penalties.

A. Any person who drives a motor vehicle on any public highway of this state at a time when the person's privilege to do so is suspended and who knows or should have known that the person's license was suspended is guilty of a misdemeanor and shall be charged with a violation of this section. Upon conviction, the person shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not less than four days or more than three hundred sixty-four days or participation for an equivalent period of time in a certified alternative sentencing program, and there may be imposed in addition a fine of not more than one thousand dollars ($1,000). When a person pays any or all of the cost of participating in a certified alternative sentencing program, the court may apply that payment as a deduction to any fine imposed by the court. Any municipal ordinance prohibiting driving with a suspended license shall provide penalties no less stringent than provided in this section.

B. In addition to any other penalties imposed pursuant to the provisions of this section, when a person is convicted pursuant to the provisions of this section or a municipal ordinance that prohibits driving on a suspended license, the motor vehicle the person was driving may be immobilized by an immobilization device for thirty days, unless immobilization of the motor vehicle poses an imminent danger to the health, safety or employment of the convicted person's immediate family or the family of the owner of the motor vehicle. The convicted person shall bear the cost of immobilizing the motor vehicle.

C. The division, upon receiving a record of the conviction of any person under this section, shall extend the period of suspension for an additional like period.

History: 1953 Comp., § 64-5-39, enacted by Laws 1978, ch. 35, § 261; 1985, ch. 186, § 2; 1987, ch. 97, § 1; 1988, ch. 56, § 7; 1993, ch. 66, § 6; 2013, ch. 163, § 2.

The 2013 amendment, effective July 1, 2013, provided for the suspension of driver's licenses; in the title, after "suspended", deleted "or revoked; providing"; in Subsection A, in the first sentence, after "to do so is suspended", deleted "or revoked" and after "license was suspended", deleted "or revoked", deleted the former fourth and fifth sentences, which provided penalties when a driver's license was revoked for driving while under the influence of intoxicating liquors or drugs or a violation of the Implied Consent Act, and in the sixth sentence, after "driving with a suspended", deleted "or revoked"; in Subsection B, in the first sentence, after "driving on a suspended", deleted "or revoked" and after "person was driving", deleted "shall" and added "may"; and in Subsection C, after "under this section", deleted "upon a charge of driving a vehicle while a license was revoked, the division shall not issue a new license for an additional period of one year from the date the person would otherwise have been entitled to apply for a new license".

The 1993 amendment, effective January 1, 1994, inserted "and who knows or should have known that his license was suspended or revoked" in the first sentence of Subsection A; substituted the language beginning "four days or more" for "two days nor more than six months, and there may be imposed in addition a fine of not more than five hundred dollars ($500)" at the end of the second sentence in Subsection A; inserted the current third sentence in Subsection A; substituted "seven consecutive days" for "ninety-six consecutive hours" and inserted "or not more than one thousand dollars ($1,000)" in the fourth sentence of Subsection A; inserted current Subsection B; and redesignated former Subsection B as Subsection C.

The 1988 amendment, effective July 1, 1988, in Subsection A, inserted "shall be charged with a violation of this section" in the first sentence, inserted "the person" in the second sentence, and substituted the present language at the end of Subsection A beginning with "or a violation of the Implied Consent Act" for the former language which read "upon conviction that person shall be fined not less than one hundred fifty dollars ($150) which shall not be suspended, deferred or taken under advisement".

Proof of knowledge by the licensee that his driving privileges have been suspended or revoked is a prerequisite for conviction under the statute. State v. Herrera, 1991-NMCA-005, 111 N.M. 560, 807 P.2d 744, cert. denied, 111 N.M. 529, 807 P.2d 227.

Proof of notice. — Defendant's conviction of driving on a revoked license was reversed where the trial court failed to instruct the jury that the state had the burden of proving that defendant knew or should have known that her license was revoked at the time that she was arrested and the state had not, in fact, proved that the defendant had been given a notice of revocation. State v. Castro, 2002-NMCA-093, 132 N.M. 646, 53 P.3d 413, cert. denied, 132 N.M. 551, 52 P.3d 411.

When misdemeanor arrest without warrant justified. — Where a police officer testified that he knew that the defendant "was on revocation" and that he stopped the defendant "to check his driving privileges," the arresting officer was justified in making the arrest without a warrant for a misdemeanor (driving with a revoked license) committed in his presence. State v. Gutierrez, 1966-NMSC-119, 76 N.M. 429, 415 P.2d 552.

Sufficiency of evidence of notice. — Record supported a finding that defendant was aware that he was driving with a revoked license, where two separate notices of revocation were sent by certified mail to his home address after defendant received separate convictions of driving while under the influence of alcohol, and both notices were unreturned. State v. Herrera, 1991-NMCA-005, 111 N.M. 560, 807 P.2d 744, cert. denied, 111 N.M. 529, 807 P.2d 227.

Section subject to assimilation under federal law. — The offenses described by this section (driving while license suspended), Sections 66-8-102 NMSA 1978 (driving while under the influence) and 66-7-3 NMSA 1978 (violation of traffic laws) are all criminal offenses, and, as such, the applicable sentences are assimilated for offenses committed on military installations within the state under the Assimilative Crimes Act, 18 U.S.C. § 13. United States v. Adams, 140 F.3d 895 (10th Cir.), cert. denied, 525 U.S. 895, 119 S. Ct. 219, 142 L. Ed. 2d 180 (1998).

Sentence mandatory. — The jail sentence provided under Section 64-13-68, 1953 Comp. (similar to this section), is mandatory. 1959-60 Op. Att'y Gen. No. 60-95.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic § 148.

Lack of proper automobile registration or operator's license as evidence of operator's negligence, 29 A.L.R.2d 963.

Necessity or emergency as defense in prosecution for driving without operator's license, or while license is suspended, 61 A.L.R.3d 1041.

Automobiles: Necessity or emergency as defense in prosecution for driving without operator's license or while license is suspended, 7 A.L.R.5th 73.

61A C.J.S. Motor Vehicles §§ 639(1), 639(2).