 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Evans v. State6/21/1996
BOSSON, Judge.
{1} We are presented with the following question: Under the Implied Consent Act may the Department of Motor Vehicles ("DMV" or "the Department") conduct license revocation hearings telephonically for DWI offenses without the physical presence of the hearing officer? We hold that the statute, NMSA 1978, Section 66-8-112(B) (Repl. Pamp. 1994), does not authorize telephonic revocation hearings, and therefore under current law these hearings are required to be held in person.
FACTUAL BACKGROUND
{2} Defendant was arrested for driving under the influence of alcohol in Otero County. He submitted to a breath test under the Implied Consent Act. See NMSA 1978, §§ 66-8-105 to -112 (Repl. Pamp. 1994). The results indicated that he had a blood-alcohol level of .14, well over the .08 limit provided by state law. See § 66-8-110(C); NMSA 1978, § 66-8-102(C) (Repl. Pamp. 1994). Defendant was then served with a notice of license revocation pursuant to Section 66-8-111.1, and upon Defendant's request, a license revocation hearing was duly scheduled. See § 66-8-112. The hearing was conducted telephonically by a DMV hearing officer located in Santa Fe. Defendant, his attorney, and the arresting officer were all present in the DMV field office in Otero County. A speaker phone and a facsimile machine were made available for use by the parties. Defendant objected to the telephonic hearing, arguing that the applicable statute, Section 66-8-112(B), requires the entire hearing to take place in the county where the DWI offense occurred. The hearing officer overruled the objection. Following the hearing, Defendant's driving privileges were revoked for ninety days. See § 66-8-111(C)(1). Defendant appealed to the district court for Otero County which reversed the hearing officer's decision, holding that the telephonic hearing violated Section 66-8-112(B). The district court also reinstated Defendant's driving privileges. The Department appeals.
Discussion
{3} Section 66-8-112(B) provides an administrative hearing for license revocation and states, in part, that "the hearing shall be held in the county in which the offense for which the person was arrested took place." The Department argues that this is a mere venue statute for the convenience of the parties which the Department can satisfy by parties giving testimony locally over the telephone to a hearing officer located in Santa Fe. Defendant, on the other hand, maintains that when the legislature prescribes a "hearing" to be held "in the county in which the offense . . . took place," the legislature intends a hearing with the parties and the hearing officer in one place: "in the county" of the offense. Defendant has not raised a due process challenge to the Department's telephonic hearing. See (Supreme Court adopting Wood, J., Dissent). We assume, but do not decide, that the Department can conduct license revocation hearings over the telephone without violating constitutional requirements. The question before us here, however, is whether the legislature has authorized the Department to do so.
{4} We observe that for over twenty-five years this statute, Section 66-8-112(B), and its antecedents have consistently required that driver license revocation hearings "shall be held in the county" of the offense. 1978 N.M. Laws, ch. 35, § 520(B); 1971 N.M. Laws, ch. 68, § 6(B). Previously, to revoke a driver's license, the Department had to file a civil action in magistrate court in the county where the defendant resided. See 1969 N.M. Laws, ch 30, § 9(A). The Department acknowledges that until recently it uniformly conducted all revocation hearings in person and has conducted them telephonically for only the
Page 1 2 3 4 5 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|