TITLE
22: COURTS
CHAPTER
600: ADMINISTRATIVE HEARINGS OFFICE
PART
6: IMPLIED CONSENT ACT LICENSE
REVOCATION HEARINGS
22.600.6.1 ISSUING AGENCY: Administrative
hearings office, Wendell Chino Building, 1220 South St. Francis Drive, P.O. Box
6400, Santa Fe, NM 87502.
[22.600.6.1
NMAC - N, 2/1/2018]
22.600.6.2 SCOPE: This part applies to all persons holding a New
Mexico driver's license or driving on New Mexico roadways, their attorneys,
MVD, and any person attending an Implied Consent Act violation hearing.
[22.600.6.2
NMAC - N, 2/1/2018]
22.600.6.3 STATUTORY AUTHORITY: Paragraph (1) of Subsection A of 7-1.B-5 NMSA
1978.
[22.600.6.3
NMAC - N, 2/1/2018]
22.600.6.4 DURATION: Permanent.
[22.600.6.4
NMAC - N, 2/1/2018]
22.600.6.5 EFFECTIVE DATE: February 1, 2018, unless a later date is cited at the end of a section, in which case the later
date is the effective date.
[22.600.6.5
NMAC - N, 2/1/2018]
22.600.6.6 OBJECTIVE: The objective of this part is to interpret,
exemplify, implement and enforce the hearing provisions under the Implied
Consent Act and the Administrative Hearings Office Act.
[22.600.6.6
NMAC - N, 2/1/2018]
22.600.6.7 DEFINITIONS: As used in 22.600.5 NMAC:
A. “Administrative
hearings office” is the agency established under Section 7-1B-1 NMSA 1978.
B. “Administrative
hearings office facility” is an office facility owned or leased by the
administrative hearings office.
C. “Chief
hearing officer” is the appointed head of the administrative hearings
office under the Administrative Hearings Office Act, Section 7-1B-3 NMSA 1978,
or the chief hearing officer’s designee during the absence of the chief hearing
officer, or the acting, interim chief hearing officer pending appointment of
that position.
D. “Driver”
means the person challenging the proposed revocation of the person’s
driving privileges for an alleged Implied Consent Act violation.
E. “Hearing
location” means an administrative hearings office
facility or another state, county, municipal, or private office location where
the administrative hearings office has arranged space to conduct a scheduled
hearing or hearings.
F. “Hearing
officer” is the attorney assigned by the chief hearing officer or designee
of the chief hearing officer to serve as a neutral decision maker in any
adjudicatory proceeding before the administrative hearings office. The person assigned as hearing officer must
be licensed to practice law in New Mexico or eligible for temporary licensure
to practice in New Mexico as determined by the New Mexico supreme
court. The
hearing officer may be a classified employee in the state personnel system with
the administrative hearings office either as an attorney or administrative law
judge, may be under contract with the administrative hearings office as a
contract attorney, administrative law judge, or judge, or may be an attorney,
administrative law judge, or judge serving in a voluntary capacity for the
administrative hearings office.
G. “MVD”
is the motor vehicle division of the New Mexico taxation and revenue department.
H. "Revocation"
means the termination of a person's driver’s license,
permit or privilege to drive a motor vehicle upon a highway in New Mexico.
[22.600.7.1
NMAC - N, 2/1/2018]
22.600.6.8 REQUEST FOR IMPLIED CONSENT ACT
HEARING AND SUBMISSION OF REFERRAL TO THE ADMINISTRATIVE HEARINGS OFFICE FOR
CONDUCT OF A HEARING:
A. Requests for hearing must be in writing,
must be accompanied by the required fee or statement of indigency as required by MVD, must be made within ten days
after receipt of notification of revocation as defined in Section 66-8-112 NMSA
1978, and must be submitted to MVD. Incomplete
requests or requests received after this time will not be
honored by MVD. Timeliness of the request shall be determined either by the
date of actual delivery to MVD'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. The administrative
hearings office, which is a separate and distinct agency from MVD, lacks
authority under the statute to accept a request for hearing directly from a
driver. While the administrative hearings
office will make reasonable efforts to forward any hearing requests incorrectly
submitted to it rather than MVD to MVD, the administrative hearings office will
not be held liable for the driver’s initial error in filing the request with
the wrong entity in terms of timeliness of the request for hearing.
B. Upon
receipt of a timely, complete request for hearing and review of a notice of
revocation demonstrating a prima facie showing of an Implied Consent Act
violation, MVD shall promptly transmit, submit or file a referral for hearing
to the administrative hearings office in a method and manner required by the
administrative hearings office. At a minimum, any referral for hearing by MVD should include the
driver’s request for hearing, the notice of revocation and any supporting
documentation attached thereto by the law enforcement officer, any proof of
mailing or service of the notice of revocation if issued by MVD rather than the
law enforcement officer, a list of witnesses that MVD wishes to have subpoenaed
to the hearing, an entry of appearance if any of an attorney or officer or
agent appearing on behalf of MVD, the driver’s address of record with MVD if
different than what was listed on the driver’s request for hearing, and any
entry of appearance filed by an attorney on behalf of the driver.
Administrative hearings office staff may reject any hearing referral received
from MVD that does not include the minimum requested information until MVD
provides the required information.
C. After initial submission of a
referral for hearing with the administrative hearings office, MVD shall have a
continuing duty to forward any additional information received on the case to
the administrative hearings office for inclusion in the case file, including
but not limited to, any subsequent entry of appearance received from an
attorney on behalf of a driver, any supplemental evidence received such as the
results of a chemical test from the scientific laboratory division or
foundational information related to such results, and any requests for
discovery filed by a driver or the driver’s representative.
D. Upon
receipt of a complete referral for hearing, the chief hearing officer or staff
designated by the chief hearing officer will promptly assign the matter to a hearing
officer to be promptly heard at the appropriate place before
expiration of any mandatory statutory deadline.
[22.600.6.8
NMAC - N, 2/1/2018]
22.600.6.9 REPRESENTATION AT HEARING, FORMAL ENTRY OF
APPEARANCE/SUBSTITUTION OF COUNSEL, AND WITHDRAWAL FROM REPRESENTATION:
A. Unless otherwise
expressly authorized by law, only the driver, or in the case of a minor under
the age of 18 the driver’s legal parent(s) or guardian(s), or an attorney
licensed or authorized to practice law in New Mexico may represent the driver
at hearing. Any attorney not licensed to
practice law in New Mexico must comply with applicable New Mexico supreme court pro hac vice rules
in order to represent the person at the hearing.
B. Any attorney
wishing to represent a party shall file a formal written entry of appearance
directly with the administrative hearings office listing that attorney’s mailing
address, fax number (if any), and a valid email address. Any attorney wishing to substitute in for a
previous attorney must file a substitution of counsel containing the same
information required in the initial entry of appearance. Upon filing a withdrawal of representation
with the administrative hearings office, consistent with the Rules of
Professional Conduct, the attorney shall give reasonable notice of the date and
time of the scheduled hearing to the party and allow time for the party to retain
other counsel, if needed.
C. If an attorney
attempts to withdraw from the case at the scheduled hearing, a hearing officer
may deny a request for withdrawal of representation if such request would
necessitate a continuance or otherwise have a clear, materially adverse effect
on the party’s interests and impede the conduct of a full, fair, and efficient
hearing.
[22.600.6.9
NMAC - N, 2/1/2018]
22.600.6.10 TIME AND PLACE OF IMPLIED CONSENT ACT
HEARING - HEARINGS IN PERSON OR BY TELEPHONIC, VIDEOCONFERENCE, AND ELECTRONIC
HEARINGS:
A. The
administrative hearings office will notify the driver or driver's counsel by
certified mail of the date, time and place scheduled for the hearing. This notice will be directed to the address listed
on the request for a hearing or, if no return address
is indicated, to the address last given by the driver to MVD pursuant to
Section 66-5-22 NMSA 1978 or to the address provided by driver’s counsel in the
entry of appearance. Such notice of
hearing will be sent a minimum of seven calendar days
before the scheduled hearing consistent with Section 66-2-11 NMSA 1978. A driver, or their representative, has a
continuing, ongoing obligation through final issuance of a decision and order
resolving the case to provide the administrative hearings office with any
change of address information.
B. The
hearing shall be held in the county in which the
offense for which the person was arrested took place unless driver or driver’s designated
representative either consents to or requests to appear by telephone,
videoconference or other equivalent electronic method.
C. The
hearing officer may conduct the hearing in person or with consent by telephone,
videoconference or other equivalent electronic method. If the hearing is to be conducted by
telephone, videoconference or other equivalent electronic method, the notice
shall so inform the driver or the driver's representative and provide no less
than ten days for the driver or the driver’s representative to object to the
hearing being conducted in that manner.
Failure to timely object to the conduct of a telephone, videoconference,
or other equivalent electronic method hearing within the time frame specified
by the notice shall be deemed consent to the hearing proceeding in that manner
and waiver of any other applicable statutory in county hearing requirement.
D. Provided
that the driver or driver’s representative has not previously demanded an
in-person hearing or otherwise objected to conducting the matter via telephone,
videoconference, or other equivalent electronic method, a driver, a driver’s
representative, MVD’s attorney, or any MVD witness may request to appear via
telephone, videoconference, or alternative electronic means by filing a request
at least three business days before the scheduled hearing, absent an
extraordinary, unforeseen circumstance. The driver’s or driver’s
representative filing of a request to appear via telephone, videoconference, or
other alternative electronic method shall be deemed as a total and complete
waiver of the in-person, in-county hearing requirement and further deemed as
consent for all parties, all witnesses, and the hearing officer to appear at
the hearing via telephone, videoconference, or other equivalent electronic
methods or no such request will be granted. The assigned hearing officer, the chief
hearing officer, or designated scheduling unit employee may grant or deny the request after
considering whether a complete and accurate record can be made and a fair
hearing can be conducted in the matter via telephone, videoconference or other
equivalent electronic method. Even if
the initial request is granted, the assigned hearing officer always retains the
discretion at any point in the proceeding to order the appearance of the
parties or witnesses in person if, in the hearing officer’s determination,
resolution of the disputed facts, evidence, credibility of a witness, law, and
or development of a complete and accurate record requires it.
E. All
parties appearing via telephone, videoconference, or other electronic method
shall provide the administrative hearings office with a working email address
or facsimile number for the exchange of all documentary evidence before or
during the hearing. Any other tangible
exhibit introduced into the record at a remote hearing will
be submitted for the record in accord with the order of the presiding
hearing officer.
F. Failure
to follow the administrative hearings office’s instructions for participating in
the hearing via telephone, videoconference, or other equivalent electronic
method will be treated as a non-appearance at the
hearing.
G. Any
technical issues shall be promptly reported to the
administrative hearings officer in accord with the instructions included on the
notice of hearing.
H. In the event that technical or other
equipment problems prevent the telephone or videoconference hearing from
occurring or otherwise interferes with maintaining or developing a complete
record at the hearing, the parties agree and consent that the assigned hearing
officer at their discretion may continue the matter to a different time before
expiration of the statutory deadline, may order the parties to appear for an
in-person hearing, or may conduct the hearing via another equivalent electronic
method.
[22.600.6.10
NMAC - N, 2/1/2018]
22.600.6.11 CONTINUANCES: At the request of the driver or the driver’s representative,
MVD or MVD’s agent, any law enforcement officers subpoenaed as witnesses, or upon
the hearing officer's own motion, the hearing officer may for good cause
continue the hearing. Continuance
requests shall be submitted to the administrative
hearings office in writing prior to the scheduled hearing or on the record at
the scheduled hearing. The hearing
officer shall consider only those requests made in writing at least three
working days prior to the scheduled hearing absent extraordinary circumstances that
the requesting party could not have known earlier. Employees of the administrative hearings office scheduling unit or the chief hearing officer may
grant or deny the request on behalf of the hearing officer. An order to grant or deny the request may be issued prior to the scheduled hearing or if there is
insufficient time to issue an order prior to the scheduled hearing, the hearing
officer may grant or deny the request on the record at the hearing. Regardless of the cited good cause or
emergency circumstance supporting the continuance, no continuance request may be granted unless there is adequate time to provide
notice to the parties, subpoena witnesses and conduct the rescheduled hearing
within 90 days of the notice of revocation.
[22.600.6.11
NMAC - N, 2/1/2018]
22.600.6.12 IMPLIED CONSENT HEARINGS - SUBPOENAS
FOR WITNESSES AND DOCUMENTS -ISSUANCE - COSTS:
A. With
at least 10 days written notice, the administrative hearings office will
subpoena any witness for testimony at the hearing that MVD has identified in
its referral of the case including all law enforcement personnel identified on
the notice of revocation, or any subsequent submission by MVD, and any relevant
witness requested by driver or driver’s representative in writing. Such subpoenas shall be
served by personal service as provided by NMRA 1-045(c), by email, by
mail, or by certified mail.
B. The
driver or the driver's representative may make written application to MVD requesting
that a subpoena be issued to compel the production of
specific books, papers or other records. Such written application shall set forth reasons
supporting the issuance of the subpoena, including establishing the relevancy
of the proposed testimony or documents sought. MVD shall issue a discovery order to its
witnesses in the matter, which the administrative hearings office may
subsequently enforce. The driver or the
driver's representative shall be responsible for the service of any such
subpoenas on MVD’s witness, and following up with MVD in the event of
noncompliance with the subpoena. 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. Failure to comply with a diligently served
subpoena, and subsequent follow up letter from MVD about the necessity for compliance
with the subpoena, may be grounds to rescind the proposed revocation regardless
of the merits of the case.
C. Other
than crafting a remedy in the particular case before
it appropriate for the failure to comply with a valid and reasonably executed
subpoena, the administrative hearings office has no other subpoena enforcement
powers.
[22.600.6.12
NMAC - N, 2/1/2018]
22.600.6.13 IMPLIED CONSENT HEARINGS - POWERS AND
DUTIES OF HEARING OFFICER:
A. 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
the powers necessary to carry out these duties, including the following:
(1) to administer or have administered oaths and affirmations;
(2) to schedule, continue and reschedule hearings;
(3) to rule upon offers of proof and receive evidence;
(4) to require the filings of briefs on specific legal issues prior
to or after the hearing;
(5) to consider and rule upon procedural and other motions and
objections appropriate in proceeding;
(6) to insure that all, and only, relevant and material issues
are considered during the hearing;
(7) to require the production or inspection of relevant
documents and other items;
(8) to participate, when appropriate, in the examination of
witnesses;
(9) to maintain a complete administrative hearing record;
(10) to issue orders and a written decision based on the record;
or
(11) to take such
other action as may be necessary and appropriate, consistent with legal
authority vested in the administrative hearings office, and with the rules, regulations,
standing orders, and policies of the administrative hearings office.
B. The
hearing officer shall have full power to regulate the course, conduct, and
decorum of the hearing, including of the parties, their representatives, and
the witnesses therein. This power
includes the authority to reprimand, or with warning in extreme instances
exclude from the hearing, any person engaging in a continuing pattern of
indecorous, obstinate, recalcitrant, obstreperous, unethical, unprofessional or
improper conduct that interferes with the conduct of a fair and orderly hearing
or development of a complete record.
C. In
the performance of these functions, the hearing officer shall not be
responsible to or subject to the direction of any officer, employee or agent of
the taxation and revenue department or the department of finance and
administration.
D. In
the performance of these adjudicative functions, the hearing officer is
prohibited from engaging in any improper ex parte communications about the
substantive issues with any party on any matter, as addressed in regulation
22.600.2.16 NMAC. An improper ex parte
communication occurs when the hearing officer discusses the substance of a case
without the opposing party being present, except that it is not an improper ex
parte communication for the hearing officer to go on the record with only one
party when the other party has failed to appear at a scheduled hearing.
[22.600.6.13
NMAC - N, 2/1/2018]
22.600.6.14 IMPLIED CONSENT HEARINGS - PARTIES TO
THE HEARING - PARTIES' RIGHTS: The parties
to the hearing shall be MVD and the driver.
The driver may be represented by an authorized
attorney at their own expense, who can appear on the driver’s behalf. MVD may also be represented
by an attorney that has entered an appearance on its behalf. MVD may also designate the law enforcement officer
that served the notice of revocation as its case agent for the purposes of the
exclusionary rule and for the limited purposes of presenting testimony,
exhibits, and making basic evidentiary objections regarding relevancy by filing
a written designation before the scheduled hearing. The parties directly, or through an authorized
attorney, shall be entitled to call and examine witnesses, to introduce
exhibits, to cross-examine witnesses, and to make closing arguments. Rebuttal evidence and argument may only be allowed at the discretion of the hearing
officer.
[22.600.6.14
NMAC - N, 2/1/2018]
22.600.6.15 IMPLIED CONSENT HEARINGS - 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. Hearsay
evidence may be admitted in the proceeding.
C. The
hearing officer may take notice of judicially or administrative cognizable facts
and of general technical or scientific facts and of other facts within the hearing
officer’s specialized knowledge and experience in
conducting Implied Consent Act hearings and in the workings of the
administrative hearings office.
D. The
experience, technical competence, and specialized knowledge of the hearing officer
may be utilized in the evaluation of the evidence.
E. Parties
objecting to evidence shall timely and briefly state
the grounds for the objection. Rulings
on evidentiary objections may be addressed on the record at
the time of the objection, reserved for ruling in a subsequent written order or
decision, or noted as a continuing, ongoing objection for which ruling is
reserved to later in the proceeding.
F. Any party
wishing to submit a video or audio recording into the record must provide a
complete tangible, playable copy that can be retained
by the administrative hearings office as part of the administrative record.
G. Documentary
evidence may be received in evidence in the form of copies
or excerpts. In general, documentary
evidence should be no larger than 8.5 inches by 11 inches unless expressly
allowed by the hearing officer.
H. In lieu of the
introduction of tangible objects as exhibits, the hearing officer may require
the moving party to submit a photograph, video, or other appropriate substitute
such as verbal description of the pertinent characteristics of the object for
the record.
[22.600.6.15
NMAC - N, 2/1/2018]
22.600.6.16 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
authorized representative attorney, and notice was given to the driver or to
the driver's representative of the date, time, and place of the hearing, and no
continuance has been granted, the right to a hearing shall be forfeited and the
revocation shall be sustained. In considering the non-appearance and whether the person received
appropriate notice, the hearing officer may consider the contents of the
administrative file, information conveyed to or known by administrative
hearings office staff, information related to mailing, including mail tracking,
returned receipt information, and notes written on returned envelopes of the
United States postal service or other mail tracking services, and arguments
offered by the present party, all of which shall be addressed on the record of
the hearing or in any subsequent order. Oral rulings of default for
failure to appear are not final until reduced to writing. Such rulings may be changed
by written order as new information arises after the hearing related to whether
the notice of hearing was properly sent to the correct address, such as but not
limited to a returned envelope from the postal service received after the
hearing date. If a driver waives the
right to a hearing or withdraws the request for hearing, the right to a hearing
shall be forfeited and the revocation shall be
sustained.
[22.600.6.16
NMAC - N, 2/1/2018]
22.600.6.17 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, as
interpreted by case law. Whether or not
the person had a previous revocation under the Implied Consent Act is an issue determined
by MVD, by its own review of its official records.
[22.600.6.17
NMAC - N, 2/1/2018]
22.600.6.18 IMPLIED CONSENT HEARINGS - HEARINGS
OPEN TO PUBLIC:
The hearing, including any
continuations, shall be open to the public, except that the assigned hearing officer
may take any actions within the hearing officer’s power necessary to ensure a
fair and orderly hearing process, including ordering any person, group of
people, or member of the media who interferes with the conduct of a fair and
orderly hearing process to leave the proceeding.
[22.600.6.18
NMAC - N, 2/1/2018]
22.600.6.19 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 except where the driver has withdrawn the driver’s request for hearing or
waived the driver’s right to a hearing by failing to appear at the hearing.
[22.600.6.19
NMAC - N, 2/1/2018]
22.600.6.20 IMPLIED CONSENT HEARINGS - RECORD OF THE
HEARING:
Hearings shall be
electronically recorded unless the hearing officer requires recording by
stenographic, mechanical or other means. Any party is permitted
to make their own recording of the proceeding by providing notice to the
tribunal and opposing party at beginning of the hearing of their intent to do
so. However, unless designated to the
contrary by the presiding hearing officer, the recording of the administrative
hearings office is the official record of the proceeding. In the event of a videoconference hearing,
only the audio recording portion of the proceeding shall be
maintained as part of the record.
[22.600.6.20
NMAC - N, 2/1/2018]
22.600.6.21 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.
[22.600.6.21
NMAC - N, 2/1/2018]
HISTORY of
22.600.6 NMAC: [RESERVED]