N.M. Code R. § 22.600.6.10

Current through Register Vol. 35, No. 11, June 11, 2024

Section 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.

N.M. Code R. § 22.600.6.10

Adopted by New Mexico Register, Volume XXIX, Issue 02, January 30, 2018, eff. 2/1/2018