2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-112 - Revocation of license or privilege to drive; notice; effective date; hearing; hearing costs; review.

A. The effective date of revocation pursuant to Section 66-8-111 NMSA 1978 is twenty days after notice of revocation or, if the person whose driver's license or privilege to drive is being revoked or denied requests a hearing pursuant to the Administrative Hearings Office Act [Chapter 7, Article 1B NMSA 1978], the date that the administrative hearings office issues the order following that hearing. The date of notice of revocation is:

(1) the date the law enforcement officer serves written notice of revocation and of right to a hearing pursuant to Section 66-8-111.1 NMSA 1978; or

(2) in the event the results of a chemical test cannot be obtained immediately, the date notice of revocation is served by mail by the department. This notice of revocation and of right to a hearing shall be sent by certified mail and shall be deemed to have been served on the date borne by the return receipt showing delivery, refusal of the addressee to accept delivery or attempted delivery of the notice at the address obtained by the arresting law enforcement officer or on file with the department.

B. Within ten days after receipt of notice of revocation pursuant to Subsection A of this section, a person whose license or privilege to drive is revoked or denied or the person's agent may request a hearing. The hearing request shall be made in writing and shall be accompanied by a payment of twenty-five dollars ($25.00) or a sworn statement of indigency on a form provided by the department. A standard for indigency shall be established pursuant to rules adopted by the department. Failure to request a hearing within ten days shall result in forfeiture of the person's right to a hearing. Any person less than eighteen years of age who fails to request a hearing within ten days shall have notice of revocation sent to the person's parent, guardian or custodian by the department. A date for the hearing shall be set by the administrative hearings office, if practical, within thirty days after receipt of notice of revocation. The hearing shall be held in the county in which the offense for which the person was arrested took place.

C. The administrative hearings office may postpone or continue any hearing on its own motion or upon application from the person and for good cause shown for a period not to exceed ninety days from the date of notice of revocation and, provided that, upon a continuance, the department shall extend the validity of the temporary license for the period of the postponement or continuation.

D. At the hearing, the administrative hearings office may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers.

E. The hearing shall be limited to the following issues:

(1) whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs;

(2) whether the person was arrested;

(3) whether this hearing is held no later than ninety days after notice of revocation; and either

(4) whether:

(a) the person refused to submit to a test upon request of the law enforcement officer; and

(b) the law enforcement officer advised that the failure to submit to a test could result in revocation of the person's privilege to drive; or

(5) whether:

(a) the chemical test was administered pursuant to the provisions of the Implied Consent Act; and

(b) the test results indicated 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 motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.

F. The administrative hearings office shall enter an order sustaining the revocation or denial of the person's license or privilege to drive if the hearing officer from the administrative hearings office finds that:

(1) the law enforcement officer had reasonable grounds to believe the driver was driving a motor vehicle while under the influence of intoxicating liquor or drugs;

(2) the person was arrested;

(3) this hearing is held no later than ninety days after notice of revocation; and

(4) either:

(a) the person refused to submit to the test upon request of the law enforcement officer after the law enforcement officer advised the person that the person's failure to submit to the test could result in the revocation of the person's privilege to drive; or

(b) that a chemical test was administered pursuant to the provisions of the Implied Consent Act and the test results indicated 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 motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.

G. If one or more of the elements set forth in Paragraphs (1) through (4) of Subsection F of this section are not found by the hearing officer, the person's license shall not be revoked.

H. A person adversely affected by an order of the administrative hearings office may seek review within thirty days in the district court in the county in which the offense for which the person was arrested took place. The district court, upon thirty days' written notice to the department, shall hear the case. On review, it is for the court to determine only whether reasonable grounds exist for revocation or denial of the person's license or privilege to drive based on the record of the administrative proceeding.

I. Any person less than eighteen years of age shall have results of the person's hearing forwarded by the administrative hearings office to the person's parent, guardian or custodian.

History: 1953 Comp., § 64-8-112, enacted by Laws 1978, ch. 35, § 520; 1979, ch. 71, § 11; 1984, ch. 72, § 8; 1985, ch. 178, § 6; 1985, ch. 187, § 4; 1991, ch. 245, § 5; 1993, ch. 66, § 14; 2003, ch. 51, § 15; 2003, ch. 90, § 8; 2015, ch. 73, § 35.

Cross references. — For notice by the division, see 66-2-11 NMSA 1978.

For subpoenas, see Rule 1-045 NMRA.

The 2015 amendment, effective July 1, 2015, provided that the date of license revocation is twenty days after notice of revocation or the date that the administrative hearings office issues an order following a license revocation hearing; in the introductory paragraph of Subsection A, after "hearing pursuant to", deleted "this section" and added "the Administrative Hearings Office Act", and after "the date that the", deleted "department" and added "administrative hearings office"; in Subsection B, after "established pursuant to", deleted "regulations" and added "rules", after "revocation sent to", deleted "his" and added "the person's", and after "set by the", deleted "department" and added "administrative hearings office"; in Subsection C, after "The", deleted "department" and added "administrative hearings office", after "provided that", added "upon a continuance", and after "the department", deleted "extends" and added "shall extend"; in Subsection D, after "hearing, the", deleted "department or its agent" and added "administrative hearings office"; in Subsection E, after "limited to the", added "following"; in the introductory paragraph of Subsection F, after "The", deleted "department" and added "administrative hearings office", and after "drive if the", deleted "department" and added "hearing officer from the administrative hearings office"; in Subsection F, Paragraph (4)(a), after "officer advised", deleted "him" and added "the person", after "that", deleted "his" and added "the person's", and after "revocation of", deleted "his" and added "the person's"; in Subsection G, after "not found by the", deleted "department" and added "hearing officer"; in Subsection H, after "order of the", deleted "department" and added "administrative hearings office"; in Subsection I, after "results of", deleted "his" and added "the person's", after "forwarded by the", deleted "department" and added "administrative hearings office", and after "to", deleted "his" and added "the person's".

The 2003 amendment, effective March 28, 2003, inserted "driver's" preceding "license or privilege" in Subsection A; added"or drugs" at the end of Paragraph E(1); added "whether:" at the beginning of Paragraphs E(4) and (5); deleted "whether" at the beginning of Subparagraphs E(4)(a), (b), and (5)(a); rewrote Subparagraph E(5)(b); substituted "drugs" for "drug" at the end of Paragraph F(1); added "either:" in Paragraph E(4); added designations Subparagraph E(4)(a) and (b); deleting "either" near the beginning of Subparagraph E(4)(a); in Subparagraph E(5)(b), inserted "in the person's blood or breath" following "an alcohol concentration", substituted "four one hundredths or more if the person is driving a commercial motor vehicle or" for "or an alcohol concentration of" following "age or older"; added the Subsection G designation and redesignated former Subsections G and H as present Subsections H and I; and substituted "Subsection F of this section" for "this Subsection" in present Subsection G.

Duplicate amendments. — Laws 2003, ch. 51, § 15 and Laws 2003, ch. 90, § 8 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 90, § 8. See 12-1-8 NMSA 1978.

The 1993 amendment, effective January 1, 1994, inserted "hearing costs" in the section heading; inserted the second and third sentences of Subsection B; substituted "test was" for "tests were" in Subsection E(5)(a); rewrote Subsection E(5)(b), which read "the test results indicated a blood alcohol content of one-tenth of one percent or more by weight if the person is eighteen years of age or older or a blood alcohol content of five one-hundredths of one percent or more by weight if the person is less than eighteen years of age"; deleted "either rescinding or" following "order" in the introductory paragraph of Subsection F; substituted the language beginning "an alcohol concentration of eight one-hundredths or more" for "a blood alcohol content of one-tenth of one percent or more by weight if the person is eighteen years of age or older or a blood alcohol content of five one-hundredths of one percent or more by weight if the person is less than eighteen years of age" at the end of Subsection F(4); and substituted "elements set forth in Paragraphs (1) through (4) of this subsection" for "above" in the final sentence of Subsection F.

The 1991 amendment, effective October 1, 1991, substituted "department" for "division" and "director" throughout the section; substituted "twenty days" for "thirty days" in the first sentence in Subsection A; and made related changes and minor stylistic changes throughout the section.

Constitutionality of Implied Consent Act. — The Implied Consent Act is not rendered unconstitutional in the civil context just because a refusal to take a breath test under the Act may be used as an element of the criminal offense of aggravated driving while intoxicated (DWI). Marez v. State Taxation & Revenue Dep't, 1995-NMCA-030, 119 N.M. 598, 893 P.2d 494.

Double jeopardy does not bar DWI prosecution after license revocation. — An administrative driver's license revocation under the Implied Consent Act does not constitute "punishment" for purposes of the double jeopardy clause; thus, the state is not barred from prosecuting an individual for driving under the influence (DWI) even though the individual has been subjected to an administrative hearing for driver's license revocation based on the same offense. State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044.

Applicability of Miranda requirements. — A motorist's statements and other evidence obtained by the police following a traffic stop are admissible at an administrative hearing regarding revocation of his driver's license although the motorist was not given Miranda warnings, since on-the-scene questioning does not require advisement of Miranda rights; a field sobriety test, in and of itself, does not violate the privilege against self incrimination; and inculpatory statements made to police during a traffic stop, prior to formal arrest, are not the product of "custodial interrogation." Armijo v. State ex rel. Transportation Dep't, 1987-NMCA-052, 105 N.M. 771, 737 P.2d 552.

This section and Section 66-5-35 NMSA 1978 are not read to preclude application of 39-3-1.1 NMSA 1978; on the contrary, they can be read together harmoniously with 66-5-36 NMSA 1978 to effect the legislature's intent to standardize the method of obtaining judicial review of final decisions on certain administrative agencies. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680.

Party should file petition for certiorari when that party is seeking review in the Court of Appeals of a district court's determination on appeal from a motor vehicles division decision revoking a license or denying a limited license. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680.

Time for setting hearing. — The provision in Subsection B that "a date for the hearing shall be set by the department, if practical, within thirty days" is directory, not mandatory. Rodarte v. State Taxation & Revenue Dep't, Motor Vehicle Div., 1995-NMCA-078, 120 N.M. 229, 900 P.2d 978.

A revocation hearing held two and one-half months after the notice of revocation did not violate the petitioner's procedural due process rights. Rodarte v. State Taxation & Revenue Dep't, Motor Vehicle Div., 1995-NMCA-078, 120 N.M. 229, 900 P.2d 978.

Hearing within ninety days of notice. — The 90-day time limit for conducting a revocation hearing is mandatory and cannot be waived. State Taxation & Revenue Dep't v. Bargas, 2000-NMCA-103, 129 N.M. 800, 14 P.3d 538.

The requirement that the revocation hearing be held within 90 days is mandatory. In re Weber, 1991-NMCA-075, 112 N.M. 697, 818 P.2d 1221, overruled on other grounds by State Taxation & Revenue Dep't v. Bargas, 2000-NMCA-103, 129 N.M. 800, 14 P.3d 538.

Case was reversed and remanded with instructions to dismiss the revocation proceeding, where there was no substantial evidence in the record as a whole that the DMV held the revocation hearing in 90 days, or that the licensee waived the 90-day limit. In re Weber, 1991-NMCA-075, 112 N.M. 697, 818 P.2d 1221, overruled on other grounds by State Taxation & Revenue Dep't v. Bargas, 2000-NMCA-103, 129 N.M. 800, 14 P.3d 538.

Compliance with requirements for hearing request. — Because defendant did not accompany his hearing request with the $25.00 fee or a sworn statement of indigency, he thereby forfeited his right to a revocation hearing. Sitzer v. State Taxation & Revenue Dep't, 2000-NMCA-056, 129 N.M. 274, 5 P.3d 1078.

Premature notice of license revocation can trigger the ninety-day time frame. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680.

Telephonic revocation hearings prohibited. — This section does not authorize telephonic revocation hearings. Such hearings are required to be held in person. Evans v. State, Taxation & Revenue Dep't, 1996-NMCA-080, 122 N.M. 216, 922 P.2d 1212, cert. denied, 122 N.M. 112, 921 P.2d 308.

Officer's failure to fill in date on notice of revocation did not deprive the department of jurisdiction. Sitzer v. State Taxation & Revenue Dep't, 2000-NMCA-056, 129 N.M. 274, 5 P.3d 1078.

In license revocation proceedings preponderance of the evidence is sufficient to prove existence of reasonable grounds. State Dep't of Motor Vehicles v. Gober, 1973-NMSC-082, 85 N.M. 457, 513 P.2d 391.

Requirements of Subsection F. — In order for the department of motor vehicles (DMV) to revoke a driver's license, a hearing officer must find that the DMV proved by a preponderance of the evidence all of the facts listed in Subsection F. In re Weber, 1991-NMCA-075, 112 N.M. 697, 818 P.2d 1221, overruled on other grounds by State Taxation & Revenue Dep't v. Bargas, 2000-NMCA-103, 129 N.M. 800, 14 P.3d 538.

Nature of hearing allowed by Subsection H. — The district court is not necessarily required to conduct an adjudicatory hearing in order to "hear" a case, although it may if it so desires. State Transp. Dep't v. Yazzie, 1991-NMCA-098, 112 N.M. 615, 817 P.2d 1257, cert. denied, 112 N.M. 499, 816 P.2d 1121.

Challenge to chemical test. — A motorist wishing to challenge the reliability of a breath or blood test or the accuracy of the results of such tests must do so at the license revocation hearing within the statutory time period. Fugere v. State Taxation & Revenue Dep't, 1995-NMCA-040, 120 N.M. 29, 897 P.2d 216, cert. denied, 119 N.M. 771, 895 P.2d 671.

Breath test refusal question of fact. — Refusal to submit to a breath test is a question of fact. Where there was conflicting evidence concerning defendant's inability to take the breath test, the courts only need determine if there was substantial evidence to support the hearing officer's determination that defendant refused the breath test. State v. Suazo, 1993-NMCA-039, 117 N.M. 794, 877 P.2d 1097, aff'd in part, 1994-NMSC-070, 117 N.M. 785, 877 P.2d 1088.

Notification of blood test results. — When a blood test is administered at the time of driver's arrest, motor vehicles division, not the officer, gives notice by mail after the blood test results are available and indicate that the driver's blood alcohol concentration exceeds permissible limits. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680.

No relation-back requirement. — This section contains no requirement that the blood alcohol test result relate back to the time that the licensee was driving, and there is no need to add such a requirement to rationalize the statute. On the contrary, omission of a relation-back requirement enables the State to provide expedited hearings without causing unfairness to licensees. Bierner v. State Taxation & Revenue Dep't, 1992-NMCA-036, 113 N.M. 696, 831 P.2d 995.

Tape recording is acceptable method of preserving record of administrative proceedings. State Dep't of Motor Vehicles v. Gober, 1973-NMSC-082, 85 N.M. 457, 513 P.2d 391.

Judicial hearing confined to administrative hearing's record. — Absent a specific statutory provision, the court is confined to the record of the administrative proceedings. State, Dep't of Motor Vehicles v. Gober, 1973-NMSC-082, 85 N.M. 457, 513 P.2d 391.

English notice of revocation satisfies due process. — English-language notice regarding administrative revocation of a driver's license is compatible with due process when it is personally delivered to a driver during the course of his arrest for driving under the influence. Maso v. N.M. Taxation & Revenue Dep't, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286.

Scope of review of constitutionality of arrest. — The district court exercises its appellate jurisdiction, not its original jurisdiction, when it reviews an appeal regarding the constitutionality of an arrest under the Implied Consent Act. Schuster v. N.M. Dep't. of Taxation & Revenue, 2012-NMSC-025, 283 P.3d 288.

The constitutionality of an arrest should be reviewed under the court's appellate jurisdiction. — Where petitioner appealed the motor vehicle division's (MVD) revocation of his driver's license for refusing to submit to a requested chemical test after he was advised that he would lose his privilege to drive if he refused the test, claiming that the implied consent advisory should have been given to him in Spanish, petitioner's native language, and that the failure to give the implied consent advisory in Spanish violated petitioner's constitutional right to due process, the district court erred in converting the appeal into a petition for writ of mandamus arising under its original jurisdiction on the grounds that MVD lacked jurisdiction to rule on petitioner's due process argument, because MVD, in determining whether it can answer the questions posed by 66-8-112(E)(4) NMSA in the affirmative, was both authorized and required to answer whether due process requires that a non-English speaking driver fully understand the implications of his or her refusal to submit to a breath or blood alcohol test upon request. Barraza v. N.M. Taxation & Revenue Dep't, 2017-NMCA-043.

The constitutionality of an arrest is a prerequisite to the revocation of a driver's license. — The arrest required for a license revocation under the Implied Consent Act and the police activity leading up to the arrest must be constitutional. The motor vehicle division must evaluate and find that the arrest and police activity leading up to the arrest of a driver charged with driving while intoxicated are constitutional as a prerequisite to revoking a driver's license. Schuster v. N.M. Dept. of Taxation & Revenue, 2012-NMSC-025, 283 P.3d 288, overruling Glynn v. N.M. Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742.

Arrest and police activity leading up to arrest was constitutional. — Where a police officer observed defendant driving a motorcycle in the parking lot of a bar when the motorcycle fell over on its side; the police officer approached defendant to determine whether defendant was injured and to assess damage to the motorcycle for possible insurance claims; the policed officer smelled alcohol on defendant's breath and noticed that defendant's eyes were blood shot and watery; defendant admitted that defendant had consumed two beers; defendant performed field sobriety tests poorly; the police officer then arrested defendant for DWI; defendant consented to two breath tests which registered readings of 0.13 and 0.14; the police officer then issued defendant a notice that defendant's driver's license would be revoked; and the MVD hearing officer found that the police officer initially interacted with defendant in the police officer's role as a community caretaker; the police officer expanded the caretaker encounter into a DWI investigation based on reasonable suspicion because of defendant's breath smelling of alcohol and watery and blood shot eyes, and the police officer had probable cause to arrest defendant for DWI after defendant failed the field sobriety tests and because defendant had been in physical control of the motorcycle when the officer arrived on the scene, there was sufficient evidence to support the MVD hearing officer's finding that the police officer had probable cause to arrest defendant for DWI and the district court correctly concluded that the revocation of defendant's driver's license was proper. Schuster v. N.M. Dep't of Taxation & Revenue, 2012-NMSC-025, 283 P.3d 288, overruling Glynn v. N.M. Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742.

The validity of a traffic stop is irrelevant in license revocation hearings. — The constitutionality of a traffic stop is not a necessary element of a license revocation under the Implied Consent Act and the constitutionality of the stop need not be decided by any tribunal for purposes of license revocation. Glynn v. N.M. Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

The exclusionary rule does not apply in license revocation hearings under the Implied Consent Act. Glynn v. N.M. Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

License revocation was valid. — Where a police officer observed driver's vehicle strike a curb and fail to maintain its lane; driver had an odor of alcohol, admitted to drinking, failed field sobriety tests, and had a breath alcohol test reading of .09 and .08; the municipal court granted a motion to suppress evidence because there was insufficient probable cause for the stop and dismissed the DWI charges against driver; and the MVD hearing officer determined that the police officer had reasonable suspicion to stop driver, admitted the evidence obtained after the stop, and revoked driver's license, the validity of the traffic stop was irrelevant to the issues to be decided by the hearing officer, the exclusionary rule did not apply in the proceeding, and the hearing officer did not err in revoking driver's license. Glynn v. N.M. Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

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. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 107 to 113, 115, 117 to 120, 122 to 124, 131, 133 to 139, 143 to 145.

Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 A.L.R.3d 852.