Driver’s failure to give a second breath sample two hours after the first one did not amount to a refusal under the Implied Consent Act (ICA) that warranted the revocation of his license. The driver was arrested under the suspicion that he was driving while intoxicated. He agreed to a breath test and gave the first sample, but afterwards the machine indicated that it was out of tolerance. By the time it was fixed two hours later, the driver refused to give a second sample. His failure to give a second sample did not amount to a refusal because, under the ICA, he was only required to give two samples within 15 minutes. NMAC 188.8.131.52(B)(1).
Driver received adequate notice of his license revocation hearing, even though he did not actually receive notice of the hearing. Actual notice was not required in administrative license hearings, and the Motor Vehicle Division took actions that were reasonably calculated to provide notice of the hearing by sending notice by certified mail to the driver’s counsel. The fact that it was never picked up did not mean that the Division failed to give reasonable notice of the hearing.
Stating that during its 2003 session, the state legislature passed three bills to amend Section 66-8-102, the DWI statute. On March 19, 2003, the governor signed House Bill (HB) 250, 2003 Leg., 46th Sess. (N.M.2003), 2003 N.M. Laws, ch. 51, § 10, which lowered the limit for commercial drivers’ blood or breath alcohol concentration to .04, and repeated, without change, the existing penalty provisions of Section 66-8-102(G).
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