New Mexico Register /
Volume XXXIII, Issue 10 / May 24, 2022
This is an
amendment to 18.19.9 NMAC, Sections 8 through 19, effective 5/24/2022.
18.19.9.8 [IMPLIED CONSENT HEARINGS -
REQUEST FOR HEARING - TIME AND PLACE - TELEPHONIC HEARINGS - CONTINUANCES:
A. Requests for hearing must be in writing, must be
accompanied by the required fee or statement of indigency and must be made
within ten days after receipt of notification of revocation as defined in
Section 66-8-112 NMSA 1978. Incomplete requests
or requests received after this time will not be honored. Timeliness of the request shall be determined
either by the date of actual delivery to the department's headquarters in Santa
Fe or, if mailed, by the postmark date of the envelope containing the request
delivered through the U. S. postal service.
B. The department will notify the driver or the driver's
agent by certified mail of the time and place scheduled for the hearing. This notice will be directed to the address
contained on the request for a hearing or, if no return address is indicated,
to the address last given the division pursuant to Section 66-5-22 NMSA 1978.
C. The hearing officer may conduct the hearing in person or,
with the driver’s consent, by telephone. If the hearing is to be conducted by
telephone, the notice shall so inform the driver or the driver's agent and
provide no less than seven days for the driver or the driver’s agent to object
to the hearing being conducted telephonically.
Such telephonic hearings shall be conducted so that the driver, the
driver's agent and any percipient witnesses are present together at a place
designated by the department, usually a motor vehicle field office, in the
county where the arrest took place. The
department will bear the expense of the telephone call. The field office shall have a speaker
telephone and unless other arrangements are made, a fax machine available so
that all may hear the proceedings and documentary evidence may be transmitted
between witnesses and the hearing officer.
D. Within ten days prior to the time an in-person hearing is
scheduled, the driver or the driver's agent may request that one or both appear
by telephone. The hearing officer shall
grant the request so long as the driver or driver's agent can make arrangements
either to have access to a fax machine during the hearing or to exchange all
documentary evidence prior to the hearing.
It will be the responsibility of the driver or the driver's agent to
call the designated telephone number at the time of the hearing. If the driver or driver's agent fails to
call, it will be treated as a non-appearance.
E. At the request of the driver or the driver's agent or on
the hearing officer's own motion, the hearing officer may, for good cause,
continue the hearing. The hearing
officer shall consider only those requests made at least three working days
prior to the scheduled hearing absent extraordinary circumstances which the
requesting party could not have known earlier.
Employees of the department's DWI scheduling section may grant or deny
the request on behalf of the hearing officer.] [RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.8 NMAC - Rn & A, 18 NMAC 19.9.8, 9/14/2000;
A, 10/13/00, Repealed, 5/24/2022]
18.19.9.9 [IMPLIED CONSENT HEARINGS -
SUBPOENAS FOR WITNESSES AND DOCUMENTS -ISSUANCE - COSTS:
A. Under the authority granted by Subsection D of Section
66-8-112 NMSA 1978 and by Section 66-2-10 NMSA 1978, the department may
subpoena witnesses to give testimony under oath and to require the production
of relevant books, or other records.
B. The department may issue subpoenas to the law enforcement
officer(s) whose name(s) are identified in any affidavit submitted to the
department pursuant to Section 66-8-111 NMSA 1978 and to any other person who
the department, in its discretion, believes may have relevant testimony to
offer at the hearing. Such subpoenas
shall be served by personal service as provided by NMRA 1-045(c) or by
certified mail.
C. The driver or the driver's agent may make written application
to the secretary requesting that a subpoena be issued to compel the attendance
of a witness and for the production of specific books, papers or other
records. Such written application shall
set forth reasons supporting the issuance of the subpoena in order that
relevancy of the proposed testimony or documents to be produced can be
ascertained. The driver or the driver's
agent shall be responsible for the service of any such subpoenas. Unless a request for continuance is made at
least three working days prior to the scheduled date for the hearing, inability
to serve such subpoenas shall not be grounds for continuance.] [RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.9 NMAC - Rn & A, 18 NMAC 19.9.9, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.10 [IMPLIED CONSENT HEARINGS -
HEARING OFFICER: The secretary shall designate a hearing
officer to conduct the hearings, continue hearings, receive evidence and issue
decisions on behalf of the department.
Only hearing officers designated by the secretary may conduct Implied
Consent Act hearings.]
[RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.10 NMAC - Rn, 18 NMAC 19.9.10, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.11 [IMPLIED CONSENT HEARINGS -
POWERS AND DUTIES OF HEARING OFFICER: Hearing officers have the duty to conduct fair and
impartial hearings, to take appropriate action to avoid unnecessary delay in
the disposition of proceedings and to maintain good order and decorum. Hearing officers possess all powers necessary
to that end, including the following:
A. to administer or have administered oaths and
affirmations;
B. to receive evidence and to rule upon offers of proof;
C. to consider and rule upon all procedural and other
motions and objections appropriate in proceeding;
D. to insure that all, and only, relevant and material
issues are considered during the hearing;
E. to require the production or inspection of relevant
documents and other items;
F. to participate, when appropriate, in the examination of
witnesses;
G. to cause a complete record of the hearing to be made;
H. to regulate the course of the hearing and the conduct of
the parties and their representatives therein;
I. to make and issue decisions and orders; and
J. to take such other action as may be necessary and
appropriate, consistent with legal authority vested in the department, and with
the rules and regulations and policies of the department.] [RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.11 NMAC - Rn, 18 NMAC 19.9.11, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.12 [IMPLIED CONSENT HEARINGS -
PARTIES TO THE HEARING - PARTIES' RIGHTS:
The parties to the hearing shall be the department and the driver. The parties shall be entitled to call and
examine witnesses, to introduce exhibits, to cross-examine witnesses, to make
opening and closing arguments and to be represented by counsel at their own
expense. Rebuttal evidence and argument
may only be allowed at the discretion of the hearing officer.] [RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.12 NMAC - Rn, 18 NMAC 19.9.12, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.13 [IMPLIED CONSENT HEARINGS -
RULES OF EVIDENCE:
A. The technical rules of evidence shall not apply to the
conduct of any hearing held under the provisions of Section 66-8-112 NMSA
1978. Irrelevant, immaterial or unduly
repetitious evidence shall be excluded.
The hearing officer may give probative effect to evidence that is of a
kind commonly relied upon by reasonably prudent people in the conduct of
serious affairs.
B. The hearing officer may take notice of judicially
cognizable facts and of general technical or scientific facts and of other
facts within the specialized knowledge of the division.
C. All evidence in the possession of the division may be
placed in evidence and made part of the record of the proceeding. Documentary evidence may be received in
evidence in the form of copies or excerpts.
D. The experience, technical competence and specialized
knowledge of the division and of the hearing officer may be utilized in the
evaluation of the evidence].
[RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.13 NMAC - Rn & A, 18 NMAC 19.9.13,
9/14/2000, Repealed, 5/24/2022]
18.19.9.14 [IMPLIED CONSENT HEARINGS -
FAILURE TO APPEAR: If a driver who has requested a hearing fails
to appear at the scheduled time and place, either in person or through an
attorney licensed to practice law in New Mexico, and notice was given to the
driver or to the driver's agent of the time and place, and no continuance has
been granted, the right to a hearing shall be forfeited and the revocation
shall be sustained.]
[RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.14 NMAC - Rn, 18 NMAC 19.9.14, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.15 [IMPLIED CONSENT HEARINGS -
ISSUES TO BE CONSIDERED AT THE HEARING: The hearing shall be strictly limited
to those issues set out in Subsection E of Section 66-8-112 NMSA 1978 and
whether the driver previously has had a driver's license revoked under the
provisions of the Implied Consent Act.]
[RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.15 NMAC - Rn & A, 18 NMAC 19.9.15,
9/14/2000, Repealed, 5/24/2022]
18.19.9.16 [IMPLIED CONSENT HEARINGS -
HEARINGS OPEN TO PUBLIC: The hearing, including any continuations,
shall be open to the public].
[RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.16 NMAC - Rn, 18 NMAC 19.9.16, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.17 [IMPLIED CONSENT HEARINGS -
DECISION AND ORDER: The hearing officer shall enter a written
order either sustaining or rescinding the revocation of the driver's license,
permit or privilege to drive. The written order sustaining the revocation shall
contain the findings required by Subsection F of Section 66-8-112 NMSA 1978]. [RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.17 NMAC - Rn & A, 18 NMAC 19.9.17,
9/14/2000, Repealed, 5/24/2022]
18.19.9.18 [IMPLIED CONSENT HEARINGS -
RECORD OF THE HEARING: Hearings shall be electronically recorded
unless the hearing officer requires recording by stenographic, mechanical or
other means.] [RESERVED]
[7/2/1990,
1/10/1994, 12/31/1996; 18.19.9.18 NMAC - Rn, 18 NMAC 19.9.18, 9/14/2000,
Repealed, 5/24/2022]
18.19.9.19 [IMPLIED CONSENT HEARING - TIME
FRAMES: In computing any period of time under this
section, the day of the act, event or default from which the designated period
of time begins to run shall not be included.
The last day of the period so computed shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday or legal holiday.] [RESERVED]
[1/10/1994,
12/31/1996; 18.19.9.19 NMAC - Rn, 18 NMAC 19.9.19, 9/14/2000, Repealed, 5/24/2022]