NM Transportation Department is sitting on millions of unspent breathalyzer funds

As much as $2.1 million meant to help people pay for interlock devices is sitting in Santa Fe unspent. Word of the fund isn’t always getting out, officials say, and the application process may be hindering those who most need the financial help. 

The fund comes from an annual $100 fee tacked onto the cost of installing and monitoring breathalyzers — not from public dollars. 

Interlock devices prevent unnecessary deaths and making them more affordable to people is good policy, said Lindsey Valdez, Mothers Against Drunk Driving’s regional executive director. 

“MADD is a big supporter of ignition interlocks. We know that they save lives,” she said. “So anything to increase the compliance and usage of issued interlocks is something that we support.”

Barbara McCrady, Ph.D, is a psychology professor at the University of New Mexico whose expertise is in treating people with Alcohol Use Disorders. She said there is no question that interlock ignition devices provide a societal benefit. 

“There really is very good evidence that when people have an ignition interlock device on their car, that they’re much less likely to engage in drinking and driving and much less likely to have a repeat DUI” she said. 

Between 10,000 and 12,000 people in the state are required to have an interlock device on a yearly basis, said Franklin Garcia, bureau chief at the N.M. Department of Transportation. 

In the 2021 fiscal year, Garcia said the department received and processed only 1,565 applications for the indigent program, approving about 75% of them.  

Monica Ault, the state director for the Fines and Fees Justice Center, said that most people who receive intoxicated driving convictions struggle to pay the interlock device fees.

Most of the people that are charged with intoxicated driving in Magistrate or District Court are assigned a public defender, Ault said, and it’s not uncommon for them to be coping with multiple stressors and social needs. “These are the same communities that carry the disproportionate burden of high unemployment rates, over-incarceration, and increased demand for health care, and less educational and economic opportunities.”

Garcia explained that the process for allocating the funds was devised after the previous fund became insolvent. 

An NM State Auditor’s report shows the indigent fund was $103,000 in the hole as of July 1, 2011.

“Up until that time, about 40% of the people that were ordered to use interlocks were eligible for the indigent fund through the courts’ determination,” Garcia recalled.

Anticipating the insolvency, Rep. Ken Martinez sponsored HB 207 during the 2010 legislative session, which allowed the Transportation Department to determine more restrictive eligibility requirements.

After the reform bill was signed by then-Gov. Bill Richardson, the department determined that all future fund recipients would be required to complete an online application and show proof that they were also on some form of federal public assistance.

A federal government study showed that especially vulnerable populations, like those who are unhoused or who have severe Alcohol Use Disorder, are “often unable to access and use federal mainstream programs because of the inherent conditions of homelessness, as well as the structure and operations of the programs themselves.” 

When the state’s Transportation Department instituted the new criteria, the number of people who were eligible dropped significantly, Garcia said. 

State audit documents show that the next year people with intoxicated driving convictions contributed $1.5 million to the fund, but only $551,000 was used by people who met the new criteria. 

The fund has continued to bring in more money than it was allocating each year for those who qualified for subsidized interlock devices. The collected fees produced such a large surplus that during the Fiscal Year 2016 budget crisis, the state siphoned off $1.2 million for other state purposes, according to the 2016 audit report. 

There are fewer applicants not because people don’t meet the low-income requirements, Ault said, but instead the fund has become less well-known and more cumbersome to navigate.  

An interlock costs between $800 and $1,000 per year, according to Garcia. The max anyone can get from the fund is $480 per year.

“So to think that they’re going to go through a whole other application process in order to just get some of their fees — because it’s not even all of their fees — but to get some of their fees waived for the interlock, is a tall order,” Ault said. 

The fund subsidizes up to $50 for the installation, up to $30 for a monthly service fee and up to $50 for the removal. 

The cost of illness 

An intoxicated-driving conviction incurs a number of expenses, McCrady said. “There are court fees, there’s counseling, there’s time that people have to take off from work, and there is the ignition interlock device itself.” 

And, McCrady  pointed out, DWI fines and fees also have underestimated impacts on the family members of those who are convicted. 

“That creates a burden, not only for the individual, but certainly for the family. We do focus groups of families about DWI, and that’s one of the first things that comes up,” McCrady said. 

The fee that is directed into the indigent interlock device fund is an example of the type of fee the Fines and Fees Justice Center is working to reverse. 

Tacking on additional expenses for individuals and families who cannot afford them — especially for something that serves a societal good — isn’t equitable, according to the center’s purpose statement. 

“We have created a two-tier system of justice where poor people – and particularly communities of color – are disproportionately punished,” according to the center’s website.  

There are still people who believe that those who are convicted of intoxicated driving should prioritize payment of their penalty fees over their continued consumption of alcohol — that it’s part of the punishment. 

But studies show that between 60% and 80% of those who are arrested for drinking and driving have an Alcohol Use Disorder, and one key symptom of AUD is that people who are alcohol dependent prioritize drinking alcohol over other basic needs. 

“If someone has severe Alcohol Use Disorder — they have strong physiological dependence, and they’re a daily drinker — just skipping a day here and there is not a simple process, because they’re experiencing all sorts of physical withdrawal symptoms that go along with it,” McCrady said. 

The monetary costs associated with a conviction can also prevent some people from completing their sentences and ever getting out of the criminal legal system. 

“Your success on probation should not be tied to how much money you have,” Ault said. “If we’re going to have things that are attached to probation, at the least, the court should do an ability-to-pay assessment.”

Do people know about the fund?

After the application process for the fund was instituted the courts, the Transportation Department and the interlock providers were expected to tell people that the money was available, Garcia said.

In New Mexico, there are eight manufacturers distributing devices, 64 service centers, 119 installers and 44 service technicians. 

The UNM Transportation Safety Center oversees the interlock device providers, but Program Manager Andy Peña said they haven’t included communicating info about financial help to their clients into their training. 

“The rules do not offer service providers any guidelines when it comes to this program,” Peña said.

Some providers have signs up in their offices and information about the fund on their websites, but it is up to each provider to decide if and how they want to share the information.

When the fund first began, income-eligible people with intoxicated-driving convictions found out about the fund through the courts.

Bennett Baur, New Mexico’s chief public defender, said that the attorneys in his office are still telling their clients about the fund.

“Generally, we do inform people,” Baur said. 

But, Baur explained, not all people who get interlock devices go through the courts. 

Baur said that people who are charged with intoxicated driving follow different paths through the criminal legal system. MVD can suspend or revoke your driver’s license even if you are acquitted of your charges or the case is dismissed. In cases like that, Baur said, it’s likely they never hear about the indigent interlock fund. 

Baur also acknowledged that the criminal legal system in New Mexico is a “big bureaucracy” that can be confusing for anyone regardless of whether they are represented by a public defender. 

Motor Vehicle Division representatives don’t provide the information automatically either.

Charlie Moore, MVD spokesperson, said by the time a person with a conviction goes to the MVD to get an interlock license, they have usually already paid the initial fees and had a device installed. 

“If somebody indicated they were going to have trouble paying for it or they specifically asked about it, we certainly provide them with the information at that point,” Moore said

After Source NM inquired about it, MVD added information to its website. 

For people who qualify for the fund, it’s a vital source, Baur said.

“I know that it’s in our interest for people to know about the fund and for them to be able to access it,” he said. “We really need to coordinate our efforts to try and get the word out.”