2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-110 - Use of tests in criminal actions or civil actions; levels of intoxication; mandatory charging.
A. 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 drugs.
B. When the blood or breath of the person tested contains:
(1) an alcohol concentration of less than four one hundredths, 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:
(a) 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 motor vehicle; and
(b) 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; or
(3) 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.
C. The arresting officer shall charge the person tested with a violation of Section 66-8-102 NMSA 1978 when the blood or breath of the person contains an alcohol concentration of:
(1) eight one hundredths or more; or
(2) four one hundredths or more if the person is driving a commercial motor vehicle.
D. When a person is less than twenty-one years of age and the blood or breath of the person contains an alcohol concentration of two one hundredths or more, the person's driving privileges shall be revoked pursuant to the provisions of the Implied Consent Act.
E. 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 Section 66-8-102 NMSA 1978.
F. 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.
G. 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.
H. If a person is convicted of driving a motor vehicle while under the influence of intoxicating liquor, the trial judge shall inquire into the past driving record of the person before sentence is entered in the matter.
History: 1953 Comp., § 64-8-110, enacted by Laws 1978, ch. 35, § 518; 1979, ch. 71, § 9; 1982, ch. 102, § 3; 1983, ch. 76, § 3; 1984, ch. 72, § 5; 1993, ch. 66, § 11; 2003, ch. 51, § 12; 2003, ch. 90, § 5; 2007, ch. 322, § 2.
The 2007 amendment, effective April 2, 2007, amended Paragraph (2) of Subsection B to add "or breath" and added Subsection E providing for tests performed pursuant to the Implied Consent Act.
The 2003 amendment, effective March 28, 2003, substituted "less than four one hundredths" for "five one-hundredths or less" in Paragraph B(1); substituted "at least four one hundredths" for "more than five one-hundredths" in Paragraph B(2); added designations to Subparagraphs B(2)(a) and (b); substituted "unless the person is driving a commercial motor vehicle; and" for "However" at the end of Subparagraph B(2)(a); added Paragraph B(3); and rewrote Subsection C.
Laws 2003, ch. 51, § 12 and Laws 2003, ch. 90, § 5 enacted identical amendments to this section. The section is set out as amended by Laws 2003, ch. 90, § 5. See 12-1-8 NMSA 1978.
The 1993 amendment, effective January 1, 1994, substituted "When the blood or breath" for "If the blood" at the beginning of Subsections B and C; substituted "an alcohol concentration of five one-hundredths or less" for "five one-hundredths of one percent or less by weight of alcohol" in Subsection B(1); substituted "an alcohol concentration of more than five one-hundredths but less than eight one-hundredths" for "more than five one-hundredths of one percent but less than one tenth of one percent by weight of alcohol" in the first sentence of Subsection B(2); substituted "an alcohol concentration of eight one-hundredths or more" for "one tenth of one percent or more by weight of alcohol" in Subsection C; deleted former Subsection D, which read "The percent by weight of alcohol shall be based on the grams of alcohol in one hundred cubic centimeters of blood"; inserted present Subsections D and E; redesignated former Subsections E and F as present Subsections F and G; and made a minor stylistic change in Subsection B.
Blood samples taken more than two hours after arrest are admissible. — Subsection E of Section 66-8-110 NMSA 1978, which provides that the results of blood tests administered under the Implied Consent Act more than three hours after a person was driving a vehicle may be received in evidence, supercedes Scientific Laboratory Division Regulation 7.33.2.12(A)(2) NMAC, which requires blood samples to be collected within two hours of arrest. State v. Bowden, 2010-NMCA-070, 148 N.M. 850, 242 P.3d 417, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.
Where a blood sample was drawn more than two hours after defendant was arrested, the results of the blood test were admissible as evidence under Subsection E of Section 66-8-110 NMSA 1978. State v. Bowden, 2010-NMCA-070, 148 N.M. 850, 242 P.3d 417, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.
State must make provisions for preservation of blood sample. — If the state is going to use as evidence the results of a blood alcohol test, it must make provisions for preservation of the blood sample so that if a timely request is made for retesting by the defendant, the sample taken is available. State v. Lovato, 1980-NMCA-126, 94 N.M. 780, 617 P.2d 169.
Blood alcohol percentage material to state's conviction for vehicular homicide. — Where the state's conviction for vehicular homicide is based primarily upon defendant's driving under the influence of intoxicating liquor, his blood alcohol percentage is clearly material to his guilt or innocence. State v. Lovato, 1980-NMCA-126, 94 N.M. 780, 617 P.2d 169.
Coroners' reports not released on demand. — This section does not require the state highway department to release copies of coroners' reports on blood-alcohol tests upon demand notwithstanding the provisions of Section 24-11-6 NMSA 1978. 1971 Op. Att'y Gen. No. 71-42.
Law reviews. — For comment, "Implied Consent in New Mexico," see 10 Nat. Resources J. 378 (1970).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and application of statutes creating presumption or other inference of intoxication from specific percentages of alcohol present in system, 16 A.L.R.3d 748.
Necessity and sufficiency of proof that tests of blood alcohol concentration were conducted in conformance with prescribed methods, 96 A.L.R.3d 745.
Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.
Destruction of ampoule used in alcohol breath test as warranting suppression of result of test, 19 A.L.R.4th 509.
Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 59 A.L.R.4th 149.
Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 A.L.R.4th 155.
Authentication of blood sample taken from human body for purposes of determining blood alcohol content, 76 A.L.R.5th 1.
