46th legislature - STATE OF NEW MEXICO - first session, 2003
RELATING TO COURTS; INCREASING THE PROBATIONARY PERIOD FOR A PERSON CONVICTED OF DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; AMENDING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 35-15-14 NMSA 1978 (being Laws 1961, Chapter 55, Section 1, as amended) is amended to read:
"35-15-14. SUSPENSION OF SENTENCE--PROBATION.--
A. The governing body of [any] a municipality may
provide by ordinance that the municipal court may, upon entry
of a plea of guilty or judgment of conviction:
(1) suspend in whole or part the execution of
the sentence or [(2)] place the defendant on probation for a
period not exceeding one year on terms and conditions the court
deems best, or both; or
(2) for driving while under the influence of intoxicating liquor or drugs, suspend in whole or in part the execution of the sentence or place the defendant on probation for a period not exceeding two years on terms and conditions the court deems best, or both.
B. The ordinance shall provide that the court may,
as a condition of probation, require the defendant to serve a
period of time in volunteer labor to be known as community
service. The type of labor and period of service shall be at
the sole discretion of the court; provided that [any] a person
receiving community service shall be immune from [any] civil
liability other than gross negligence arising out of the
community service, and [any] a person who performs community
service pursuant to court order or [any] a criminal diversion
program shall not be entitled to [any] wages, shall not be
considered an employee for any purpose and shall not be
entitled to [workmen's] workers' compensation, unemployment
benefits or any other benefits otherwise provided by law. As
used in this [paragraph] subsection, "community service" means
any labor that benefits the public at large or any public,
charitable or educational entity or institution.
[B.] C. The ordinance shall provide that suspension
of execution of the sentence or probation, or both, shall be
granted only when the municipal judge is satisfied it will
serve the ends of justice and of the public and that the
defendant's liability for [any] a fine or other punishment
imposed is fully discharged upon successful completion of the
terms and conditions of probation."
Section 2. Section 66-8-102 NMSA 1978 (being Laws 1953, Chapter 139, Section 54, as amended) is amended to read:
"66-8-102. PERSONS UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--PENALTY.--
A. It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.
B. It is unlawful for a person who is under the influence of any drug to a degree that renders him incapable of safely driving a vehicle to drive a vehicle within this state.
C. It is unlawful for a person who has an alcohol concentration of eight one hundredths or more in his blood or breath to drive a vehicle within this state.
D. Aggravated driving while under the influence of intoxicating liquor or drugs consists of a person who:
(1) has an alcohol concentration of sixteen one hundredths or more in his blood or breath while driving a vehicle within this state;
(2) has caused bodily injury to a human being as a result of the unlawful operation of a motor vehicle while driving under the influence of intoxicating liquor or drugs; or
(3) refused to submit to chemical testing, as provided for in the Implied Consent Act, and in the judgment of the court, based upon evidence of intoxication presented to the court, was under the influence of intoxicating liquor or drugs.
E. [Every] A person under first conviction pursuant
to this section shall be punished, notwithstanding the
provisions of Section 31-18-13 NMSA 1978, by imprisonment for
not more than ninety days or by a fine of not more than five
hundred dollars ($500), or both; provided that if the sentence
is suspended in whole or in part or deferred, the period of
probation may extend beyond ninety days but shall not exceed
[one year] two years. Upon a first conviction pursuant to this
section, an offender may be sentenced to not less than forty-eight hours of community service or a fine of three hundred
dollars ($300). The offender shall be ordered by the court to
participate in and complete a screening program described in
Subsection H of this section and to attend a driver
rehabilitation program for alcohol or drugs, also known as a
"DWI school", approved by the bureau and also may be required
to participate in other rehabilitative services as the court
shall determine to be necessary. In addition to those
penalties, when an offender commits aggravated driving while
under the influence of intoxicating liquor or drugs, the
offender shall be sentenced to not less than forty-eight
consecutive hours in jail. If an offender fails to complete,
within a time specified by the court, any community service,
screening program, treatment program or DWI school ordered by
the court, the offender shall be sentenced to not less than an
additional forty-eight consecutive hours in jail. Any jail
sentence imposed pursuant to this subsection for failure to
complete, within a time specified by the court, any community
service, screening program, treatment program or DWI school
ordered by the court or for aggravated driving while under the
influence of intoxicating liquor or drugs shall not be
suspended, deferred or taken under advisement. On a first
conviction pursuant to this section, any time spent in jail for
the offense prior to the conviction for that offense shall be
credited to any term of imprisonment fixed by the court. A
deferred sentence pursuant to this subsection shall be
considered a first conviction for the purpose of determining
subsequent convictions.
F. A second or third conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($1,000), or both; provided that if the sentence is suspended in whole or in part, the period of probation may extend beyond one year but shall not exceed five years. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence:
(1) upon a second conviction, [each] an
offender shall be sentenced to a jail term of not less than
seventy-two consecutive hours, forty-eight hours of community
service and a fine of five hundred dollars ($500). In addition
to those penalties, when an offender commits aggravated driving
while under the influence of intoxicating liquor or drugs, the
offender shall be sentenced to a jail term of not less than
ninety-six consecutive hours. If an offender fails to
complete, within a time specified by the court, any community
service, screening program or treatment program ordered by the
court, the offender shall be sentenced to not less than an
additional seven consecutive days in jail. A penalty imposed
pursuant to this paragraph shall not be suspended or deferred
or taken under advisement; and
(2) upon a third conviction, an offender shall be sentenced to a jail term of not less than thirty consecutive days and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving while under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. If an offender fails to complete, within a time specified by the court, any screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional sixty consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.
G. Upon a fourth or subsequent conviction pursuant to this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement.
H. Upon any conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program and, if necessary, a treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.
I. Upon a first conviction for aggravated driving while under the influence of intoxicating liquor or drugs pursuant to the provisions of Subsection D of this section,
as a condition of probation, an offender shall be required to have an ignition interlock device installed and operating for a period of one year on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. 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. If an offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the offender may be in violation of the terms and conditions of his probation.
J. Upon a first conviction for driving while under the influence of intoxicating liquor or drugs pursuant to the provisions of Subsection A, B or C of this section, as a condition of probation, an offender may be required to have an ignition interlock device installed and operating for a period of one year on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. 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. If an offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the offender may be in violation of the terms and conditions of his probation.
K. Upon any subsequent conviction pursuant to this section, as a condition of probation, a subsequent offender shall be required to have an ignition interlock device installed and operating for a period of at least one year on all motor vehicles driven by the subsequent offender, pursuant to rules adopted by the bureau. Unless determined by the sentencing court to be indigent, the subsequent offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. If a subsequent offender drives a motor vehicle that does not have an ignition interlock device installed on the motor vehicle, the subsequent offender may be in violation of the terms and conditions of his probation.
L. In the case of a first, second or third offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.
M. A conviction pursuant to a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States that is equivalent to New Mexico law for driving while under the influence of intoxicating liquor or drugs, and that prescribes penalties for driving while under the influence of intoxicating liquor or drugs, shall be deemed to be a conviction pursuant to this section for purposes of determining whether a conviction is a second or subsequent conviction.
N. In addition to any other fine or fee [which]
that may be imposed pursuant to the conviction or other
disposition of the offense under this section, the court may
order the offender to pay the costs of any court-ordered
screening and treatment programs.
O. As used in this section:
(1) "bodily injury" means an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body; and
(2) "conviction" means an adjudication of guilt and does not include imposition of a sentence."
Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.