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State of New Mexico Taxation & Revenue Dept.11/9/2000
Joseph Bargas's driver's license was revoked pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978, as amended through 1993) (the Act). The district court reversed, holding that the Motor Vehicle Division (MVD) did not hold the revocation hearing within ninety days as required by the Act. MVD appeals, arguing Bargas had waived the time limit. We hold that the ninety-day time limit of the Act is mandatory and cannot be waived. The judgment of the district court is affirmed.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Bargas was arrested for driving while intoxicated (DWI) on January 18, 1998. He was administered a breath test consisting of two samples. Each sample showed an alcohol concentration of .17. The arresting officer served Bargas with a notice of revocation under the Act on the day of arrest. Bargas requested a hearing within the ten days allowed him, and a hearing was set by MVD for April 8, 1998-eighty days after the notice of revocation. Bargas's attorney requested a continuance because of a scheduling conflict. As part of the request for continuance, he included the following language:
I stipulate that the hearing officer at any new hearing may make the statutorily-required finding that the hearing has been held within 90 days of the date of notice of revocation and exclude that time which runs as a result of my requesting a continuance.
I understand the hearing will be rescheduled at the earliest possible time, but I do not object and will not object, if the date of the hearing is more than 90 days from today, due to that delay caused by my requesting this continuance.
On April 22, 1998, MVD scheduled another hearing for May 20, 1998. On May 4, 1998, Bargas requested another continuance, using the same language as above in his request. MVD rescheduled the hearing for May 22, 1998, which is 124 days after the date of the notice.
During the May 22 hearing, Bargas's attorney cross-examined the arresting officer at length and made a number of objections for the administrative record. After an hour and forty-five minutes, the hearing officer interrupted the hearing and asked Bargas's attorney "if want to wrap this up in five minutes," stating he believed the hearing had run too long. Bargas's attorney replied he could not. The hearing officer then halted the hearing and rescheduled the matter for July 1, 1998, without objection from Bargas.
The hearing reconvened on July 1. Immediately prior to the hearing, the Albuquerque Police Department notified the hearing officer that the arresting officer was sick and would not be available. The hearing officer informed Bargas and his attorney that the hearing would again be continued. At this point, Bargas's attorney objected, stating that continuing the hearing would carry it beyond ninety days without his consent. This objection was taken under advisement and the hearing was reset without a ruling on it.
MVD reset the hearing for August 12, 1998. Bargas's attorney finished the examination and arguments that he had begun in May, while again arguing that because the hearing had occurred more than ninety days out, MVD had lost jurisdiction. The hearing officer again took all objections under advisement and overruled them in his final decision.
MVD issued its findings on August 17, 1998. Finding No. 3 stated that "the hearing was held no later than ninety (90) days after the Notice of Revocation." In the notice of decision, the MVD hearing officer discussed at length his finding about Bargas's waiver of the ninety-day time period. The hearing officer found that Bargas's attorney was aware MVD hearings are
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