June 29, 2015 – Myron G. Yepa v. State of New Mexico Taxation & Revenue Department, Motor Vehicle Division, NO. 33,101

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: June 29, 2015
No. 33,101
MYRON G. YEPA,
Petitioner-Appellee,
v.
STATE OF NEW MEXICO TAXATION
AND REVENUE DEPARTMENT,
MOTOR VEHICLE DIVISION,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge
Southwest Indian Law Clinic
Barbara Creel, Supervising Attorney
Veronica C. Gonzales, Law Student
Heidi J. Todacheene, Law Student
Albuquerque, NM
for Appellee
Hector H. Balderas, Attorney General
Taxation and Revenue Department, Legal Services Bureau
Peter A. Breen, Special Assistant Attorney General
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	On appeal, we are presented with the question whether the application of the
ignition interlock requirement set forth in NMSA 1978, Section 66-5-33.1 (2009), to
an individual whose license was revoked prior to the effective date of the amendment,
violates the prohibition against ex post facto laws. As a preliminary matter, we hold
that the district court properly had jurisdiction of this case involving a constitutional
challenge because it raised a purely legal issue not requiring exhaustion of
administrative remedies. On the merits, because we conclude that the amendment was
not penal for the purposes of ex post facto constitutional analysis, we hold that there
was no constitutional violation. We therefore reverse.
BACKGROUND
{2} 	Petitioner Myron G. Yepa was arrested for aggravated driving under the
influence of intoxicating liquor or drugs (DWI) in New Mexico on September 7, 2008.
As a consequence, effective September 27, 2008, the Taxation and Revenue
Department, Motor Vehicle Division (MVD) revoked his license for a period of six
months pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (1978,
as amended through 2007). The criminal charge against Yepa was dismissed on
December 10, 2008, and he became eligible for license reinstatement under the

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Implied Consent Act on March 28, 2009. At that time, no ignition interlock
requirement existed as a prerequisite to license reinstatement. However, effective July
1, 2009, the Legislature amended the statutory license reinstatement requirements to
include a minimum of six months of driving with an ignition interlock device before
reinstatement of a revoked license. Section 66-5-33.1(B)(4) (the 2009 amendment).
Yepa did not request reinstatement of his license until after the amendment came into
effect. MVD applied the ignition interlock requirement and denied the request as a
result of Yepa’s failure to comply.
{3} 	Yepa subsequently filed the underlying action in district court, seeking a
declaration that the ignition interlock requirement was improperly applied to him. The
district court ultimately concluded that MVD’s application of the 2009 amendment
to Yepa constituted a violation of the constitutional prohibition against ex post facto
laws. This appeal followed.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
{4} 	We initially address a jurisdictional question. MVD argues that Yepa should
have challenged the denial of his request for reinstatement of his license by pursuing
an administrative appeal. In light of his failure to do so, MVD contends that the
underlying action should have been dismissed.

3
{5} 	According to MVD, NMSA 1978, Section 66-2-17 (1995) provides an
exclusive statutory remedy for any party aggrieved by any licensing decision. That
statutory section sets forth the administrative appeals process. Under Section 66-2-
17(A), “any person may dispute” the denial of a license pursuant to the administrative
appeals procedure outlined in subsequent portions of the statute, “[u]nless a more
specific provision for review exist[s].” Section 66-2-17(I) specifies as follows:
No court of this state has jurisdiction to entertain any proceeding
by any person in which the person calls into question the application to
that person of any provision of the Motor Vehicle Code, except as a
consequence of the appeal by that person to the district court from the
action and order of the secretary or hearing officer as provided for in this
section.
{6} 	We agree with MVD in its basic premise. “Under the exhaustion of
administrative remedies doctrine, where relief is available from an administrative
agency, the plaintiff is ordinarily required to pursue that avenue of redress before
proceeding to the courts; and until that recourse is exhausted, suit is premature and
must be dismissed.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 26, 142 N.M. 786,
171 P.3d 300 (alteration, internal quotation marks, and citation omitted). However,
when the matter at issue is purely legal and requires no specialized agency factfinding,
and there is no exclusive statutory remedy, “it is a proper matter for a declaratory
judgment action and does not require exhaustion of administrative remedies.” New
Energy Econ., Inc. v. Shoobridge, 2010-NMSC-049, ¶ 12, 149 N.M. 42, 243 P.3d 746.

4
{7} 	The district court based its ruling on the constitutional prohibition against ex
post facto laws. The ruling involved a purely legal issue that did not require
specialized agency factfinding. The only facts found by the district court were
uncontested and concerned the relevant dates underlying the constitutional challenge.
As a consequence, exhaustion of administrative remedies was not required. Smith,
2007-NMSC-055, ¶ 27.
{8} 	The proposition that a purely legal ruling may be pursued in a declaratory
judgment 	action 	without 	administrative 	review 	is 	particularly 	valid 	in 	the
circumstances of this case in which the issue involved is a constitutional challenge to
the Implied Consent Act. See Schuster v. State of N.M. Taxation & Revenue Dep’t,
2012-NMSC-025, ¶¶ 19, 22, 283 P.3d 288 (holding that MVD is statutorily required
to evaluate the constitutionality of arrests); Maso v. State of N.M. Taxation & Revenue
Dep’t, 2004-NMCA-025, ¶ 12, 135 N.M. 152, 85 P.3d 276 (observing that
constitutional questions are generally beyond the subject matter jurisdiction of MVD),
aff’d, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286. We are aware of no statutory
provision or case law, and MVD has cited none, suggesting that MVD is vested with
subject matter jurisdiction to adjudicate constitutional questions such as the ex post
facto 	challenge 	presented 	in 	this 	case. 	See 	Pickett 	Ranch, 	LLC 	v. 	Curry,
2006-NMCA-082, ¶ 45, 140 N.M. 49, 139 P.3d 209 (stating that when no supporting

5
authority for a proposition is cited, this Court may assume that no applicable or
analogous authority exists). To the extent that MVD invites us to recognize such
sweeping authority in the absence of statutory delegation, we deem it imprudent. See
Kilmer v. Goodwin, 2004-NMCA-122, ¶ 24, 136 N.M. 440, 99 P.3d 690 (“[A]n
administrative agency may not exercise authority beyond the powers that have been
granted 	to 	it.”); 	Collyer 	v. 	State 	of 	N.M. 	Taxation 	& 	Revenue 	Dep’t,
1996-NMCA-029, ¶ 6, 121 N.M. 477, 913 P.2d 665 (“MVD is vested only with the
power to administer and enforce the Motor Vehicle Code as provided by law.”).
{9} 	MVD 	cites 	Alvarez 	v. 	State 	of 	N.M. 	Taxation 	& 	Revenue 	Dep’t,
1999-NMCA-006, 126 N.M. 490, 971 P.2d 1280, in support of its position. In that
case, the plaintiffs filed a complaint, seeking a declaration that they were entitled to
have their driving privileges restored. Id. ¶ 3. However, the plaintiffs had not applied
for or been denied license reinstatement. Id. ¶ 10. Applying Section 66-2-17, we held
that the action for declaratory judgment was improper, insofar as the plaintiffs had
failed to pursue “the mandated administrative steps necessary to vest jurisdiction in
the district court.” Alvarez, 1999-NMCA-006, ¶ 10.
{10} 	Two significant considerations render this case distinguishable. First, unlike the
Alvarez plaintiffs, Yepa applied for license reinstatement, and the request was denied.
Accordingly, MVD has rendered a decision, such that ripeness is not a concern. See

6
generally U.S. West Commc’ns, Inc. v. N.M. State Corp. Comm’n, 1998-NMSC-032,
¶ 8, 125 N.M. 798, 965 P.2d 917 (observing that the doctrine of ripeness “serves to
prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties” (internal
quotation marks and citation omitted)); New Energy Econ., 2010-NMSC-049, ¶ 17
(“One of the prerequisites of . . . a declaratory judgment action is that . . . the issue
involved must be ripe for judicial determination.” (second omission in original)
(alteration, internal quotation marks, and citation omitted)).
{11} 	Second, the arguments advanced by the Alvarez plaintiffs do not appear to have
implicated constitutional principles beyond the scope of MVD’s authority. As we have
discussed, this distinction is significant in view of MVD’s authority to address
constitutional issues.
{12} 	Constitutional challenges that are beyond the scope of MVD’s authority are
properly brought before the district courts. See Schuster, 2012-NMSC-025, ¶ 21
(“[A]ny constitutional challenge beyond MVD’s scope of statutory review is brought
for the first time in district court under its original jurisdiction.”). As a result,
exhaustion of administrative remedies was not required for the district court to rule

7
on the purely legal issue of the ex post facto application of the 2009 amendment to a
previous incident triggering a license revocation. See Smith, 2007-NMSC-055, ¶ 27
(holding that because a pure question of law was presented that would have been futile
to pursue through the administrative appeals process, exhaustion was not required);
State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc., 1973-NMSC-087, ¶ 29,
85 N.M. 521, 514 P.2d 40 (“The doctrine of exhaustion of remedies does not require
the initiation of and participation in proceedings in respect to which an administrative
tribunal clearly lacks jurisdiction, or which are vain and futile.”). The district court
had jurisdiction under the New Mexico Declaratory Judgment Act, NMSA 1978, §§
44-6-1 to -15 (1975).
EX POST FACTO LAWS
{13} 	The 2009 amendment imposes a number of conditions upon the reinstatement
of drivers’ licenses that were suspended or revoked for DWI or for violation of the
Implied Consent Act. Among these requirements is completion of “a minimum of six
months of driving with an ignition interlock license with no attempts to circumvent
or tamper with the ignition interlock device.” Section 66-5-33.1(B)(4). As briefly
described in the introductory portion of this Opinion, Yepa’s driver’s license was
revoked in 2008 after he was arrested for aggravated DWI. The criminal charge
against him was dismissed in late 2008. He became eligible for license reinstatement

8
in March 2009, but he did not apply for reinstatement until late July 2009, after the
effective date of the 2009 amendment. He successfully argued below that the
application of the amendment to him constituted an impermissible ex post facto law.
{14} 	The constitutional prohibition against ex post facto laws is violated “when a
statute involving retroactivity is passed that makes criminal a previously innocent act,
increases the punishment, or changes the proof necessary to convict the defendant.”
State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2013-NMCA-043, ¶ 10, 297 P.3d 357
(alteration, internal quotation marks, and citation omitted), cert. granted, 2013-
NMCERT-003, 300 P.3d 1181.
{15} 	The first portion of our inquiry concerns retroactivity. “[C]onfusion often arises
as to what retroactivity means in particular contexts.” Gadsden Fed’n of Teachers v.
Bd. of Educ., 1996-NMCA-069, ¶ 14, 122 N.M. 98, 920 P.2d 1052. MVD contends
that there is no retroactivity, in that Section 66-5-33.1(B) is not triggered until a
person applies for license reinstatement. Yepa contends that application of the 2009
amendment entails retroactivity because it increases the punishment associated with
conduct that preceded the effective date of the enactment.
{16} 	“A statute or regulation is considered retroactive if it impairs vested rights
acquired under prior law or requires new obligations, imposes new duties, or affixes
new disabilities to past transactions.” Howell v. Heim, 1994-NMSC-103, ¶ 17, 118

9
N.M. 500, 882 P.2d 541. The impairment of vested rights does not appear to be
implicated in this case. Cf. City of Santa Fe ex rel. Santa Fe Police Dep’t v. One (1)
Black 2006 Jeep, 2012-NMCA-027, ¶ 11, 286 P.3d 1223 (observing that Section 66-
5-33.1 contains no provision for automatic reinstatement upon the expiration of the
penalty period and, accordingly, a driver’s license remains revoked and cannot be
reinstated until compliance with all of the requisites is accomplished). However, the
2009 amendment does require “new obligations, imposes new duties, or affixes new
disabilities” to a past transaction by increasing the burden of reinstatement upon
drivers whose licenses were revoked before the 2009 amendment came into effect.
Howell, 1994-NMSC-103, ¶ 17.
{17} 	MVD argues to the contrary on grounds that a statutory amendment “does not
operate retroactively merely because some of the facts or conditions which are relied
upon existed prior to the enactment.” Id. (internal quotation marks and citation
omitted). 	However, 	the 	implicit 	focus 	on 	the 	timing 	of 	the 	application 	for
reinstatement, without considering the relationship between the license reinstatement
process and preceding events and circumstances, is too simplistic. As our Supreme
Court has more recently explained, the relevant inquiry is nuanced:
[T]o determine whether a statutory amendment is retroactive the court
must ask whether the new provision attaches new legal consequences to
events completed before its enactment. The conclusion that a particular
rule operates retroactively comes at the end of a process of judgment

1We note that Yepa’s answer brief suggests that the ex post facto clause
contained within the New Mexico Constitution affords greater protection than the
United States Constitution. However, Yepa neither cites authority to support this
position as a general proposition, nor attempts to demonstrate that the federal analysis
is flawed, that there are structural differences between state and federal government,
or that there are distinctive state characteristics. See generally State v. Leyva,
2011-NMSC-009, ¶ 49, 149 N.M. 435, 250 P.3d 861 (describing the interstitial
approach by which arguments that the New Mexico Constitution provides greater
protection than its federal counterpart may be preserved). We therefore adhere to the
established ex post facto jurisprudence and leave for another day the question whether
the New Mexico Constitution affords greater protections.
10
concerning the nature and extent of the change in the law and the degree
of connection between the operation of the new rule and a relevant past
event.
State v. Morales, 2010-NMSC-026, ¶ 9, 148 N.M. 305, 236 P.3d 24 (internal
quotation marks and citation omitted). Under the 2009 amendment, there is a clear and
immediate “connection between the operation of the new rule” (i.e., the ignition
interlock requirement) and “a relevant past event” (i.e., the conduct which precipitated
the prior license revocation). As a consequence, heightened burdens are imposed on
drivers whose licenses were revoked as a consequence of conduct that preceded the
passage of the 2009 amendment. Therefore, the 2009 amendment “attaches new legal
consequences to events completed before its enactment.” Id. (internal quotation marks
and citation omitted). In light of these considerations, retroactivity is sufficiently
involved to require further analysis.1

11
{18} 	When considering an ex post facto challenge to the application of a statutory
amendment, it is necessary to evaluate the nature of the amendment. “[T]he
constitutional prohibition on ex post facto laws applies only to penal statutes which
disadvantage the offender affected by them.” State v. Nunez, 2000-NMSC-013, ¶ 112,
129 N.M. 63, 2 P.3d 264 (internal quotation marks and citation omitted). “The
prohibition does not apply to penalties that are considered remedial in nature.” Foy,
2013-NMCA-043, ¶ 11.
{19} 	Yepa contends that the ignition interlock requirement set forth in the 2009
amendment should be regarded as punitive, as opposed to remedial in nature, because
it represents a further step in our Legislature’s response to the serious problem of
drunk driving, and because it imposes costs and incidental expenses. Although these
are 	material 	considerations, 	they 	are 	not 	dispositive. 	See 	State 	v. 	Kirby,
2003-NMCA-074, ¶¶ 31, 38, 133 N.M. 782, 70 P.3d 772 (noting that “simply because
the conduct to which the civil penalty applies is already a crime is insufficient, by
itself, to render the sanction criminally punitive” and further observing that “monetary
assessments are traditionally a form of civil remedy” (internal quotation marks and
citation omitted)). Yepa also focuses heavily on the consequential impact upon him,
individually. MVD counters that Yepa “cannot have it both ways,” by asserting that
the 2009 amendment is facially invalid on the one hand while also arguing that his

12
“particular personal circumstances” of poverty render the 2009 amendment invalid as
applied to him.
{20} 	Yepa’s various claims pertaining to the amendment’s unique individual impacts
upon him are not relevant to our analysis of whether the ignition interlock requirement
is punitive. “[W]hether a sanction constitutes punishment is not determined from the
defendant’s perspective, as even remedial sanctions carry the sting of punishment.”
State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, ¶ 32, 120 N.M. 619, 904 P.2d
1044 (internal quotation marks and citation omitted). “In order to ascertain whether
these sanctions are punitive[,] we must look at the purposes that the sanctions actually
serve. We make this determination by evaluating the government’s purpose in
enacting the legislation, rather than evaluating the effect of the sanction on the
defendant.” Id. (internal citation omitted). Accordingly, we decline to consider the
“actual sanctions at stake” in Yepa’s “specific case[.]” Foy, 2013-NMCA-043, ¶ 37.
{21} 	The threshold question is whether the Legislature’s intent was to impose
punishment. Id., ¶ 15. If “the intention was to enact a regulatory scheme that is civil
and nonpunitive, we must further examine whether the statutory scheme is so punitive
either in purpose or effect as to negate the State’s intention to deem it civil.” Id.
(internal quotation marks and citation omitted).

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{22} 	Yepa asserts that the legislative intent was essentially punitive. He bases this
assertion upon isolated comments by individuals, the fact that the requirement may
be imposed in the absence of a criminal conviction, and the fact that New Mexico
imposes comparatively greater sanctions for drunk driving than other states. However,
we do not regard any of these reasons as reliable indicia of legislative intent.
{23} 	Based on an assessment of the overarching statutory scheme of the Implied
Consent Act, including the procedures and penalties imposed, our Supreme Court has
previously recognized, in the context of a constitutional double jeopardy analysis, that
the Legislature’s intent in enacting the provision for revoking and reinstating driver’s
licenses, including the prior version of Section 66-5-33.1, was civil and remedial.
Kennedy, 1995-NMSC-069, ¶¶ 28-35, 42. Our Supreme Court stressed that the “state
government regulates the activity of driving on the state’s highways in the interest of
the public’s safety and general welfare.” Id. ¶ 35. The license revocation provision of
the Implied Consent Act, the Supreme Court noted, “serves the legitimate nonpunitive
purpose of protecting the public from the dangers presented by drunk drivers and
helps enforce regulatory compliance with the laws governing the licensed activity of
driving.” Id. It further observed that the Implied Consent Act also has a deterrent
effect on drunk drivers, but noted that “[t]he deterrent effect of administrative license

14
revocation is incidental to the government’s purpose of protecting the public from
licensees who are incompetent, dishonest, or otherwise dangerous.” Id. ¶ 38.
{24} 	The regulatory activity in this case is not distinguishable either because the
constitutional protection is different or because the statute at issue pertains to an
ignition interlock requirement rather than a license revocation. Indeed, the 2009
amendment required an ignition interlock merely as a condition to reinstatement of a
revoked or suspended driver’s license. We perceive nothing within the 2009
amendment to suggest a departure from the legislative intent expressed in Kennedy
that “revocation of a person’s driver’s license based on the conduct of either failing
a blood-alcohol test or refusing to take a chemical test . . . is consistent with the
government’s goals in implementing the Implied Consent Act and is therefore
remedial, not punitive[.]” Id. ¶ 42.
{25} 	We do note, as pointed out by the dissent, although it was not briefed by Yepa,
that the statutory provision setting forth the offense of DWI includes a separate
provision requiring an offender who is convicted of DWI to obtain an ignition
interlock license and device. NMSA 1978, § 66-8-102(N) (2008, amended 2010). In
the context of this provision, the dissent relies on dictum in State v. Valdez, 2013-
NMCA-016, 293 P.3d 909, to assert that the Legislature intended the mandatory
installation of ignition interlock devices to be punitive. The defendant in Valdez,

15
however, challenged the constitutionality of the mandatory ignition interlock
requirement of Section 66-8-102(N) as applied to offenders convicted of DWI “whose
impairment is caused not by alcohol but by drugs[.]” Id. ¶ 1. In this case, Yepa was
not subject to Section 66-8-102(N) because he was not convicted of aggravated DWI.
Based on this dissimilar factual scenario, the statutes subject to our analysis here differ
from that in Valdez. We therefore do not consider the language of Section 66-8-
102(N) to alter the Legislature’s overarching intent concerning the remedial nature of
the Implied Consent Act, the statute underlying this appeal. The general statutory
scheme of the Implied Consent Act focuses on the revocation and reinstatement of
driver’s licenses, not punishment of traffic offenses. Moreover, the bill passed by the
Legislature in 2009 only amended the statutory provisions for license revocation and
reinstatement under Section 66-5-33.1 and NMSA 1978, § 66-5-503 (2013). See 2009
N.M. Laws, ch. 254; Chatterjee v. King, 2012-NMSC-019, ¶ 12, 280 P.3d 283 (“In
addition to looking at the statute’s plain language, we will consider its history and
background and how the specific statute fits within the broader statutory scheme.”).
Accordingly, we view the Section 66-8-102(N) requirement as an independent means
by which the Legislature intended to deter drunk drivers from endangering the public
safety.

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{26} 	We therefore proceed to the second part of the inquiry, to determine whether
the 2009 amendment “is so punitive either in purpose or effect as to negate the
[Legislature’s] intention.” Foy, 2013-NMCA-043, ¶ 15 (internal quotation marks and
citation omitted). We apply a seven-factor test, which entails evaluating:
(1) whether the sanction involves an affirmative disability or restraint,
(2) whether it has historically been regarded as a punishment, (3)
whether it comes into play only on a finding of scienter, (4) whether its
operation will promote the traditional aims of punishment—retribution
and deterrence, (5) whether the behavior to which it applies is already a
crime, (6) whether an alternative purpose to which it may rationally be
connected is assignable for it, and (7) whether it appears excessive in
relation to the alternative purpose assigned.
Id. ¶ 16 (alterations, internal quotation marks, and citation omitted). We address each
factor in turn.
{27} 	As to the first factor, we do not consider the ignition interlock requirement to
be, on balance, an affirmative disability or restraint, as this factor has been interpreted
and applied. Although compliance with the requirement may entail expense, and
although an ignition interlock device may be inconvenient, these considerations do not
approach the “infamous punishment of imprisonment.” Id. ¶17 (internal quotation
marks and citation omitted) (utilizing punishments entailing imprisonment or carrying
the stigma of criminal conviction as the benchmarks for purposes of identifying
sanctions that involve affirmative disability or restraint). While we do not deny that
the installation of an ignition interlock device may “carry the stigma of a criminal

17
conviction” because it is also required of offenders, we do not consider this factor to
be a substantial disability or restraint because, as demonstrated by this case, an
ignition interlock can be required without a criminal conviction. Moreover, and
importantly, the larger ignition interlock scheme has a permissive, as opposed to
disabling or constraining effect, because it allows individuals to obtain ignition
interlock licenses and thereby to continue driving notwithstanding the revocation of
their drivers’ licenses. NMSA 1978, § 66-5-503 (2009, amended 2013). As a result,
the first factor suggests that the 2009 amendment on balance is remedial rather than
punitive in nature.
{28} 	With respect to the second factor, although in recent years an ignition interlock
device has been required of DWI offenders, see § 66-8-102(N), we are aware of
nothing to indicate that ignition interlock requirements have historically been regarded
as punishment. The relative novelty of such requirements suggests no such historical
sensibility.
{29} 	Turning to the third factor, scienter has no bearing on either the application of
the ignition interlock requirement or the behavior that led to the preceding license
revocation. See State v. Orquiz, 2012-NMCA-080, ¶ 15, 284 P.3d 418 (observing that
“DWI is a strict liability crime”). This factor lends further support to the remedial
nature of the 2009 amendment.

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{30} 	Application of the fourth factor also yields mixed results. We are aware of
nothing 	to 	suggest 	that 	imposition 	of 	the 	ignition 	interlock 	requirement 	is
retributional. However, as we have discussed, the requirement may have a deterrent
effect. See Kennedy, 1995-NMSC-069, ¶¶ 36-37 (recognizing that the sanction of
license revocation has a deterrent effect). Nevertheless, “the fact that the regulatory
scheme 	has 	some 	incidental 	deterrent 	effect 	does 	not 	render 	the 	sanction
punishment[.]” Id. ¶ 37. In light of the larger purpose, which is clearly to enhance
public safety by keeping intoxicated drivers off of the roads, the deterrent effect of the
ignition interlock requirement is relatively minor. See id. ¶¶ 35, 38 (holding that “[t]he
deterrent effect of administrative license revocation is incidental” to the greater
purpose “of protecting the public from the dangers presented by drunk drivers” and
“enforc[ing] regulatory compliance with the laws governing the licensed activity of
driving”). We therefore weigh this factor in favor of determining the 2009 amendment
to be remedial.
{31} 	As to the fifth factor, insofar as ignition interlock devices are designed to
prevent the driver from operating a vehicle if he or she is intoxicated or impaired,
requiring the installation of such a device operates to prevent conduct that is already
prohibited by law. See NMSA 1978, § 66-5-502(B) (2007, amended 2013) (defining
“ignition interlock device” as a device “that prevents the operation of a motor vehicle

19
by an intoxicated or impaired person”); § 66-8-102(A)-(C) (declaring driving under
the influence of intoxicating liquor or drugs unlawful). This purpose suggests a
punitive nature. See Foy, 2013-NMCA-043, ¶ 31 (observing that “when the behavior
being punished is already a crime it points in favor of finding the statute to be punitive
in nature”). However, “simply because the conduct to which the [sanction] applies is
already a crime is insufficient, by itself, to render the sanction criminally punitive[.]”
Kirby, 2003-NMCA-074, ¶ 38.
{32} 	With respect to the sixth factor, concerning alternative purposes, the ignition
interlock requirement is “one of several tools of regulatory and administrative
enforcement” that constitutes “an integral part of an overall remedial regulatory and
administrative scheme to protect the public.” Foy, 2013-NMCA-043, ¶ 33 (internal
quotation marks and citation omitted); see generally Kennedy, 1995-NMSC-069, ¶¶
29-35, 38, 42 (discussing the larger regulatory scheme that arises under the Implied
Consent Act and related provisions, including Section 66-5-33.1, and noting that this
scheme serves the purpose of protecting the public). This factor suggests that the 2009
amendment is remedial in nature.
{33} 	Finally, as to the seventh factor, we must consider whether the 2009 amendment
“appears excessive in relation to the alternative purpose assigned.” Foy, 2013-NMCA-
043, ¶ 16 (internal quotation marks and citation omitted). “The question is whether the

20
regulatory means chosen are reasonable in light of the nonpunitive objective.” Id. ¶
36 (internal quotation marks and citation omitted). We answer this question in the
affirmative. In so doing, we note the “close and substantial relationship” between the
ignition interlock requirement and the remedial purpose of protecting the public by
keeping impaired drivers off of the roads. Id. ¶ 38; see, e.g., City of Albuquerque v.
One (1) 1984 White Chevy Ut., 2002-NMSC-014, ¶ 16, 132 N.M. 187, 46 P.3d 94
(finding a “clear nexus between” the vehicles seized by the state and the crime of
DWI); Kennedy, 1995-NMSC-069, ¶ 38 (finding the deterrent (i.e. punitive) aspects
of revoking a driver’s license after a conviction of DWI to be “incidental to the
government’s purpose of protecting the public”). Accordingly, this factor weighs in
favor of concluding the ignition interlock requirement to be remedial.
{34} 	In sum, our analysis reveals that the ignition interlock requirement imposed by
the 2009 amendment: (1) on balance does not impose an affirmative disability or
restraint; (2) has not been historically viewed as punitive; (3) does not come into play
only on a finding of scienter; (4) speaks more to regulating licensed conduct than
promoting the traditional aims of punishment; (5) applies to conduct that is already
a crime; (6) constitutes an integral part of an overall remedial regulatory and
administrative scheme to protect the public; and (7) is not excessive in relation to its
remedial purpose. Insofar as six of the seven factors indicate that the 2009 amendment

21
is remedial, on balance, the remedial effects outweigh the punitive effects. See, e.g.,
Kirby, 2003-NMCA-074, ¶¶ 38-39 (arriving at the same conclusion on a similar
balance of the relevant factors).
{35} 	In light of the foregoing, we conclude that the 2009 amendment is not penal for
purposes of the constitutional prohibition against ex post facto laws. Accordingly,
MVD was improperly enjoined from applying the ignition interlock requirement to
Yepa on that basis.
CONCLUSION
{36} 	For the reasons stated, we reverse.
{37} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
I CONCUR:
________________________________
JONATHAN B. SUTIN, Judge
MICHAEL E. VIGIL, Chief Judge (dissenting).

2In all other respects, I concur with the majority opinion.
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VIGIL, Chief J., dissenting.
{38} 	It might seem odd to ask whether a mandatory sentence following a criminal
conviction constitutes punishment. However, I respectfully submit that is the very
question which this case presents. Considered in its proper light, Yepa is being
subjected to an unconstitutional ex post facto law, and contrary to the holding of the
majority, I would affirm.2
{39} 	The United States Constitution prohibits both the federal and state governments
from enacting ex post facto laws. U.S. Const. art. 1, § 10, cl. 3 (prohibiting Congress
from passing any ex post facto law); U.S. Const. art 1, § 10, cl. 1 (prohibiting any state
from passing any ex post facto law). Such laws are also prohibited by the New Mexico
Constitution in its own Bill of Rights. N.M. Const. art. II, § 19. “The Latin phrase ‘ex
post facto’ implicates in its literal meaning any law passed ‘after the fact.’” Collins v.
Youngblood, 497 U.S. 37, 41 (1990); see Foy, 2013-NMCA-043, ¶ 10 (citation
omitted). In my view, the federal and state constitutional prohibitions were violated
in Yepa’s case.
{40} 	Criminal actions and driver’s license revocations work together. Breath tests of
motorists must be administered pursuant to the Implied Consent Act, NMSA 1978,
Sections 66-8-105 to -112 (1978, as amended through 2007). When a breath test gives

23
a blood alcohol concentration of .08 or higher, the arresting officer “shall” charge the
driver with a violation of NMSA 1978, Section 66-8-102 (2004), and on behalf of the
MVD serves notice that the driver’s license will be revoked for a period of six months,
unless a hearing is requested. Section 66-8-110(C)(1); 66-8-111.1. Upon receipt of a
statement signed under perjury from the police officer that a breath test was
administered and the result was a blood alcohol concentration of .08 or higher, MVD
revokes the driver’s license for six months. Section 66-8-111(C)(1) (2005). These
statutory provisions were followed. Yepa was administered a blood alcohol test, and
because the results were above .08, he was charged with DWI (aggravated) in
violation of Section 66-8-102(D)(1), and MVD revoked Yepa’s license for six months
on the basis that the result of his breath alcohol test was above the .08 per se limit.
{41} 	When Yepa became eligible to have his driver’s license reinstated in March
2009, there was no ignition interlock requirement for reinstatement. Section
66-5-3.1(B). However, when he did seek reinstatement in July, 2009, a law passed
“after the fact” with an effective date of July 1, 2009, had an ignition interlock
requirement. This new law now required “a minimum of six months of driving with
an ignition interlock license” for license reinstatement. Section 66-5-33.1(B)(4)
(2009). The question before us is whether requiring Yepa to comply with the new

24
ignition interlock requirement violates the constitutional prohibition against ex post
facto laws.
{42} 	“The Ex Post Facto Clause flatly prohibits retroactive application of penal
legislation.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994) (quoted in State
v. Ordunez, 2012-NMSC-024, ¶ 14, 283 P.3d 282). 	A statute is “penal” when it
makes criminal a previously innocent act, increases the punishment, or changes the
proof necessary to convict the defendant. Ordunez, 2012-NMSC-024, ¶ 14; State v.
Romero, 2011-NMSC-013, ¶ 10, 150 N.M. 80, 257 P.3d 900. Moreover, the
constitutional prohibition against ex post facto laws applies to all penal statutes, even
those that are labeled civil. Foy, 2013-NMCA-043, ¶¶ 12-15.
{43} 	In determining whether a statute is penal, the intent of the Legislature is
controlling. Id. ¶ 15; Smith v. Doe, 538 U.S. 84, 92 (2003). Unlike the majority, I
conclude that the intent of our Legislature has very clearly expressed its intention that
a mandatory ignition interlock is penal. In 2005, our Legislature enacted significant
amendments to the sentencing requirements for DWI convictions. One requirement
is that upon a conviction for DWI, the sentencing judge must order installation of an
ignition interlock device in the judgment and sentence:
Upon a conviction pursuant to this section, an offender shall be
required to obtain an ignition interlock license and have an ignition
interlock device installed and operating on all motor vehicles driven by
the offender, pursuant to rules adopted by the [traffic safety] bureau.

25
Unless determined by the sentencing court to be indigent, the offender
shall pay all costs associated with having an ignition interlock device
installed on the appropriate motor vehicles. The offender shall operate
only those vehicles equipped with ignition interlock devices for:
(1) 	a period of one year, for a first offender;
(2) 	a period of two years, for a second conviction pursuant to
this section;
(3) 	a period of three years, for a third conviction pursuant to
this section; or
(4) 	the remainder of the offender’s life, for a fourth or
subsequent conviction pursuant to this section.
Section 66-8-102(N) (2005). See NMSA 1978, Section 66-5-503(B)(1) (2009) (stating
that one of the requirements for obtaining an ignition interlock license is installation
of an ignition interlock device on any vehicle driven).
{44} 	“The establishment of criminal penalties is a legislative function.” State v.
Pendley, 1979-NMCA-036, ¶ 23, 92 N.M. 658, 593 P.2d 755. The Legislature could
not be any clearer in expressing its intent that mandatory installation of an ignition
interlock device constitutes punishment for committing the criminal offense of DWI.
This becomes even more evident when one considers that this mandatory sentence was
added to other existing penalties for DWI. As such, only the clearest proof should
suffice to override the Legislature’s intent and transform what it has denominated a
criminal penalty into a civil and nonpunitive regulation. See Hudson v. United States,

26
522 U.S. 93, 100 (1997) (stating that “only the clearest proof will suffice to override
legislative intent and transform what has been denominated a civil remedy into a
criminal penalty[.]” (internal quotation marks and citation omitted)).
{45} 	When Yepa was arrested and charged with aggravated DWI in September 2008,
the penalty included mandatory installation of an ignition interlock device for a period
of one year, Section 66-8-102(N) (2008), and there was no such penalty for
reinstatement of a driver’s license. After July 1, 2009, however, a new six-month
penalty was imposed for reinstatement. See Collins, 497 U.S. at 43 (“Legislatures may
not retroactively . . . increase the punishment for criminal acts.”). It belies reason to
conclude that mandatory installation of an ignition interlock device following a
criminal conviction is punishment but mandatory installation of an ignition interlock
device for reinstatement of a driver’s license is not punishment. They are the same.
{46} 	“If the intention of the legislature was to impose punishment, that ends the
inquiry.” Smith, 538 U.S. at 92. The majority acknowledges that the threshold
question is whether the Legislature intended to impose punishment. Majority Opinion
¶ 21. We have already concluded that the Legislature intended mandatory installation
of an ignition interlock device to constitute punishment. 	In State v. Valdez, 2013-
NMCA-016, ¶ 12, 293 P.3d 909, we noted: “The DWI statute is part of a broad
legislative scheme, including the State’s separate Ignition Interlock Licensing Act,

27
which applies to those whose “privilege or driver’s license has been revoked or
denied.” Section 66-5-503(A).” We concluded: “The goal of the Legislature was to
criminalize DWI and to penalize it with mandatory installation of ignition interlock
devices[.]” 	Id. Thus, the majority fails to properly account for the fact that the
Legislature imposed mandatory installation of an ignition interlock device as a penalty
for DWI, and that this penalty was increased by an additional six months under the
new law.
{47} 	The majority then assumes that the MVD requirement is part of a regulatory
scheme that is civil and nonpunitive. Majority Opinion ¶¶23-25. Finally, the majority
then proceeds to analyze whether that statutory scheme is so punitive in either purpose
or effect so as to negate its civil, nonpunitive purpose. Majority Opinion ¶¶ 26-34. In
my opinion, this analysis does not apply because the legislative intent is clearly
expressed that mandatory installation of an ignition interlock device is punishment for
DWI.
{48} 	For the foregoing reasons, I dissent from the holding that MVD was improperly
enjoined from applying the interlock requirement to Yepa on the basis that the 2009
amendment is not penal under the constitutional prohibition against ex post fact laws.
I would affirm.
MICHAEL E. VIGIL, Chief Judge