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Bierner v. State3/26/1992
HARTZ, Judge.
We have consolidated these two appeals on our own motion because they raise the same question: To revoke a driver's license under the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (Repl. Pamp. 1987), does the State have to establish that the licensee's blood alcohol content (BAC) was at least .1 percent by weight at the time the licensee was driving? We hold that it does not. The State needs to prove only that the licensee's BAC equaled or exceeded the statutory limit at the time the licensee took a blood alcohol test in accordance with the Implied Consent Act.
The Motor Vehicle Division of the Taxation and Revenue Department (MVD) revoked the licenses of both Alrundus Hart and Betty Bierner (Licensees) pursuant to Section 66-8-112 after each was arrested for driving under the influence of alcohol, in violation of NMSA 1978, Section 66-8-102
(Cum. Supp. 1991), and then given a breath alcohol test that indicated a BAC of at least .1 percent. Hart's two breath tests were administered approximately 47 minutes after he had last driven his vehicle; Bierner's test was administered approximately one hour and 18 minutes after she had last driven. Each appealed to the district court.
District Judge Albert S. Murdoch reversed the revocation of Hart's license. He found that Hart's "blood alcohol level could either rise or decrease between the time he was driving and the time the officer administered the breath alcohol tests," and held that the "blood alcohol content of the driver must relate back to the time he was actually driving and not to the time of testing in order to sustain a license revocation pursuant to NMSA § 66-8-112." The State had offered no evidence relating Hart's BAC at the time of his breath tests to his BAC at the time he was driving. District Judge Gerard W. Thomson, on the other hand, sustained the revocation of Bierner's license. He held that the MVD was not required to prove Bierner's BAC at the time she was driving.
Discussion
The Implied Consent Act directs law enforcement officers to administer a blood or breath test for BAC when they have reasonable grounds to believe that a person was driving while under the influence of intoxicating liquor or a drug. § 66-8-107(B). The person may refuse to take the test, but such refusal is ground for revocation of the person's driver's license. See § 66-8-111(A), (B). If the test is administered and indicates that the driver's BAC exceeds .1 percent by weight, the law enforcement officer who requested or directed the administration of the test must immediately serve upon the driver a written notice of revocation and of a right to a hearing. § 66-8-111.1. The officer should then take the driver's license, issue a temporary license valid for 30 days, and send the MVD the seized license and a signed statement regarding the test result and reasonable grounds to arrest the driver. Id. The revocation is effective 30 days after notice of revocation. § 66-8-112(A). Section 66-8-112 then provides in pertinent part as follows:
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 his agent may request a hearing. Failure to request a hearing within ten days shall result in forfeiture of the person's right to a hearing. . . . A date for the hearing shall be set by the director, if practical, within thirty days after rec
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