New Mexico Register / Volume XXXIII, Issue 10 / May 24, 2022
This is an amendment to 18.19.4
NMAC, Sections 32 through 42, effective 5/24/2022.
18.19.4.32 [HEARINGS - WHEN HEARING REQUIRED -
NOTIFICATION:
A. Whenever
the department has reason to believe any licensee has violated any provision of
the Motor Vehicle Code or the regulations promulgated thereunder, the
department shall schedule a hearing to determine whether or not the licensee's
license should be canceled, suspended, revoked or continued.
B. The
licensee shall be notified of the hearing. Notification shall inform the
licensee of the suspected violations of particular provisions of the Motor
Vehicle Code and shall briefly advise the licensee of the procedures employed
in hearings and of remedies subsequent to the hearing if the license is
refused, canceled, suspended or revoked.
At the end of the hearing or within ten (10) days thereafter, the
department shall enter a written decision and order]. [RESERVED]
[7/19/1994, 9/14/1996, 11/30/1999; 18.19.4.32 NMAC - Rn, 18 NMAC 19.4.10.4, 9/14/2000, Repealed, 5/24/2022]
18.19.4.33 [HEARINGS - INFORMAL CONFERENCES:
A. The
secretary, in appropriate cases, may provide for an informal conference before
setting a hearing. An informal
conference will be scheduled at a time and place agreed to by both
parties. The secretary may attend or
designate a delegate to attend. Both
parties may bring representatives of their own choosing to the conference, and
both parties may bring any records or documents that are pertinent to the
issues to be discussed. An informal
conference will be vacated if the parties resolve the issue prior to the
scheduled date.
B. The
purpose of the informal conference is to discuss the facts and the legal
issues. The result of an informal
conference will usually be one of the following:
(1) an agreement that the license can be issued without
further action;
(2) an agreement that the license can be issued, but only
after certain specific requirements are satisfied;
(3) an agreement to schedule a hearing; or
(4) any combination of the above agreements.
C. The
appellant or the department may be given the opportunity to provide more facts
if the situation warrants. There is no statutory restriction on the number of
informal conferences that may be scheduled.
D. In
the event the appellant fails to appear at the informal conference without
reasonable notice to the Secretary, the protest may be scheduled for a hearing
without further opportunity for an informal conference.] [RESERVED]
[7/19/1994, 9/14/1996, 11/30/1999; 18.19.4.33 NMAC - Rn, 18 NMAC 19.4.10.5, 9/14/2000, Repealed, 5/24/2022]
18.19.4.34 [HEARINGS - DEPOSITIONS: The parties are expected to accomplish
adequate discovery by the time a hearing is held. This discovery is to be achieved by informal
consultation, stipulation, deposition, requests for admissions and production
of documents and written interrogatories.
If adequate discovery is not achieved within a reasonable time prior to
the time a hearing is scheduled, any party may apply to the hearing officer for
an order to require depositions, production of records or answers to
interrogatories. Depositions may be
taken orally or upon written interrogatories and cross-interrogatories.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.34 NMAC - Rn, 18 NMAC 19.4.10.6, 9/14/200; Repealed, 5/24/2022]
18.19.4.35 [HEARINGS - CONSEQUENCES OF FAILURE TO
COMPLY WITH ORDERS:
A. If
a party or an officer or agent of a party fails to comply with an order of the
hearing officer for the taking of a deposition or otherwise relating to
discovery, the hearing officer, for the purpose of resolving issues and
disposing of the proceeding without unnecessary delay despite such failure, may
take such action in regard thereto as is just, including but not limited to the
following:
(1) infer that the admission, testimony, documents or other
evidence sought by discovery would have been adverse to the party failing to
comply;
(2) rule that, for the purposes of the proceeding, the matter
or matters concerning which the order was issued be taken as established
adversely to the party failing to comply;
(3) rule that the noncomplying party may not introduce into
evidence or otherwise rely, in support of any claim or defense, on testimony by
such party, officer or agent or on the documents or other evidence discovery of
which has been denied; or
(4) rule that the party may not be heard to object to
introduction and use of secondary evidence to show what the withheld admission,
testimony, documents or other evidence would have shown.
B. Any
such action may be taken by written or oral order issued in the course of the
proceeding or by inclusion in the decision of the hearing officer. It shall be the duty of the parties to seek
and the hearing officer to grant such of the foregoing means of relief or other
appropriate relief as may be sufficient to compensate for the withheld
testimony, documents or other evidence.
C. Any
party who previously requested the secretary to issue a subpoena may request
the secretary to seek the assistance of the court in the enforcement of any
subpoena issued to any person who fails to provide the information or documents
requested in the subpoena.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.35 NMAC - Rn, 18 NMAC 19.4.10.7, 9/14/2000, Repealed, 5/24/2022]
18.19.4.36 [HEARINGS - MOTIONS:
A. After
a hearing is scheduled, all written motions shall be addressed to the hearing
officer with copies to the opposing parties and shall be ruled on by the
hearing officer. All written motions
shall state the particular order, ruling or action desired and the grounds
therefor.
B. Within
15 days after personal service of any written motion, or within 20 days after
the motion is mailed, or within such longer or shorter time as may be
designated by the hearing officer, the opposing party shall answer or shall be
deemed to have consented to the granting of the relief asked for in the
motion. The moving party shall have no
right to reply, except as permitted by the hearing officer.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.36 NMAC - Rn, 18 NMAC 19.4.10.8, 9/14/2000, Repealed, 5/24/2022]
18.19.4.37 [HEARINGS - PREHEARING CONFERENCE:
A. The
hearing officer may, and upon motion of any party shall, direct representatives
for all parties to meet with the hearing officer for a prehearing conference to
consider any or all of the following:
(1) simplification and clarification of the issues;
(2) stipulations and admissions of fact and of the contents
and authenticity of documents;
(3) expedition in the discovery and presentation of evidence,
including, but not limited to, restriction on the number of expert, economic or
technical witnesses;
(4) matters of which official notice will be taken; and
(5) such other matters as may aid in the orderly and
expeditious disposition of the proceeding, including disclosure of the names of
witnesses and the identity of documents or other physical exhibits which will
be introduced in evidence in the course of the proceeding.
B. Prehearing
conferences may be recorded in the discretion of the hearing officer.
C. The
hearing officer may enter in the record an order which recites the results of
the conference. Such order shall include the hearing officer's rulings on matters
considered at the conference, together with appropriate directions to the
parties. The hearing officer's order
shall control the subsequent course of the proceeding, unless modified to
prevent manifest injustice.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.37 NMAC - Rn, 18 NMAC 19.4.10.9, 9/14/2000, Repealed, 5/24/2022]
18.19.4.38 [HEARINGS - GENERAL RULES ON HEARINGS:
A. Hearings
are held in Santa Fe. Hearings are open to the public. An appellant may appear at a hearing in
person or be represented by a bona fide employee, an attorney or other bona
fide representative.
B. Every
party shall have the right of due notice, cross-examination, presentation of
evidence, objection, motion, argument and all other rights essential to a fair
hearing, including the right to discovery as provided in 18.19.4.30 through
18.19.4.42 NMAC.
C. An
adverse party, or an officer, agent or employee thereof, and any witness who
appears to be hostile, unwilling or evasive may be interrogated by leading
questions and may also be contradicted and impeached by the party calling that
witness.] [RESERVED]
[7/19/1994, 9/14/1996, 11/30/1999; 18.19.4.38 NMAC - Rn & A, 18 NMAC 19.4.10.10, 9/14/2000, Repealed, 5/24/2022]
18.19.4.39 [HEARINGS - HEARING OFFICER:
A. Hearings
in adjudicative proceedings shall be presided over by a hearing officer
designated by the secretary.
B. The
hearing officer shall have the duty to conduct fair and impartial hearings, to
take all necessary action to avoid delay in the proceedings, and to maintain
order. The hearing officer shall have
all powers necessary to carry out these duties, including the following:
(1) to administer or have administered oaths and affirmations;
(2) to cause depositions to be taken;
(3) to require the production or inspection of documents and
other items;
(4) to require the answering of interrogatories and requests
for admissions;
(5) to schedule a prehearing conference for simplification of
the issues, or any other proper purpose;
(6) to require the filing of briefs on specific legal issues
prior to the hearing;
(7) to rule upon offers of proof and receive evidence;
(8) to regulate the course of the hearings and the conduct of
the parties and their representatives therein;
(9) to continue and reschedule hearings;
(10) to consider and rule upon all procedural and other motions
appropriate in proceeding;
(11) to cause a complete record of proceedings in hearings to be
made; and
(12) to make and issue decisions and orders.
C. In
the performance of these functions, the hearing officer shall not be
responsible to or subject to the supervision or direction of any officer,
employee or agent engaged in the performance of investigative or prosecuting
functions for the department.
D. In
the performance of the adjudicative functions, the hearing officer is
prohibited from ex parte discussions with either party on any matter relating
to the complaint.
E. Disqualification
of a hearing officer:
(1) When a hearing officer has substantial doubt as to whether
he or she has a conflicting interest, the hearing officer shall disqualify
himself or herself and withdraw from the hearing by notice on the record.
(2) Whenever any party believes for any reason the hearing
officer should be disqualified to preside in a particular proceeding, such
party may file with the secretary a motion to disqualify and remove the hearing
officer, such motion to be supported by affidavits setting forth the alleged
grounds for disqualification. A copy of
the motion shall be served on the opposing party and on the hearing officer
whose removal is sought. The hearing
officer shall have twenty-five (25) days from such service within which to
accede or to reply to the allegations.
If the hearing officer does not disqualify himself or herself within
that time, the secretary shall promptly review the validity of the grounds
alleged and determine whether or not the hearing officer shall be
disqualified. The secretary's decision
shall be final.
(3) If the hearing officer is disqualified, the secretary
shall designate another person to act as hearing officer.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.39 NMAC - Rn, 18 NMAC 19.4.10.11, 9/14/2000, Repealed, 5/24/2022]
18.19.4.40 [HEARINGS - EVIDENCE:
A. The
appellant shall have the burden of proof, except in those cases where the
department is the petitioner seeking to cancel, revoke or suspend a license or
temporary permit and as otherwise provided by law.
B. Relevant
and material evidence shall be admitted.
Irrelevant, immaterial, unreliable, and unduly repetitious evidence may
be excluded. Immaterial or irrelevant
parts of an admissible document shall be segregated and excluded so far as is
practicable. The hearing officer shall
consider all evidence admitted.
C. The
hearing officer shall take judicial notice of facts and law to the extent
provided in the New Mexico rules of civil procedure for district courts. When any decision of the hearing officer
rests, in whole or in part, upon the taking of official notice of a material
fact not appearing in evidence of record, opportunity to disprove such noticed
fact shall be granted any party making timely motion therefor.
D. Parties
objecting to evidence shall timely and briefly state the grounds relied
upon. Rulings of the hearing officer on
all objections shall appear in the record.
E. Formal
exception to an adverse ruling is not required.
F. When
an objection to a question propounded to a witness is sustained, the examining
person may make a specific offer of what that person expects to prove by the
answer of the witness, or the hearing officer may, with discretion, receive and
have reported the evidence in full.
Excluded exhibits, adequately marked for identification, shall be
retained in the record so as to be available for consideration by any reviewing
authority.] [RESERVED]
[7/19/1994, 9/14/1996, 11/30/1999; 18.19.4.40 NMAC - Rn, 18 NMAC 19.4.10.12, 9/14/2000, Repealed, 5/24/2022]
18.19.4.41 [HEARINGS - RECORD: Hearings shall be either stenographically
recorded by an official reporter or mechanically recorded, as the hearing
officer directs.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.41 NMAC - Rn, 18 NMAC 19.4.10.13, 9/14/2000, Repealed, 5/24/2022]
18.19.4.42 [HEARINGS - PROPOSED FINDINGS,
CONCLUSIONS AND BRIEFS: At
the close of the reception of evidence, or within a reasonable time thereafter
fixed by the hearing officer, the hearing officer may require or any party may
file with the hearing officer proposed orders, proposed findings of fact and
proposed conclusions of law, together with reasons therefor and briefs in
support thereof.] [RESERVED]
[7/19/1994, 9/14/1996; 18.19.4.42 NMAC - Rn, 18 NMAC 19.4.10.14, 9/14/2000, Repealed, 5/24/2022]