0001| HOUSE BILL 142 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| R. DAVID PEDERSON | 0005| | 0006| | 0007| | 0008| FOR THE DWI OVERSIGHT TASK FORCE | 0009| | 0010| AN ACT | 0011| RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR | 0012| OR DRUGS; PROVIDING INCREASED CRIMINAL PENALTIES FOR HABITUAL | 0013| DWI FELONY OFFENDERS; AMENDING SECTIONS OF THE NMSA 1978. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977, | 0017| Chapter 216, Section 6, as amended by Laws 1993, Chapter 77, | 0018| Section 9 and also by Laws 1993, Chapter 283, Section 1) is | 0019| amended to read: | 0020| "31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC | 0021| SENTENCE.-- | 0022| A. For the purposes of this section, "prior felony | 0023| conviction" means: | 0024| (1) a conviction for a prior felony committed | 0025| ~[within]~ |in| New Mexico whether within the Criminal Code or | - 1 - 0001| not, |but not including a prior felony DWI conviction pursuant | 0002| to the provisions of Section 66-8-102 NMSA 1978|; or | 0003| (2) ~[any]~ |a| prior felony for which the | 0004| person was convicted other than an offense triable by court | 0005| martial if: | 0006| (a) the conviction was rendered by a | 0007| court of another state, the United States, a territory of the | 0008| United States or the commonwealth of Puerto Rico; | 0009| (b) the offense was punishable at the | 0010| time of conviction by death or a maximum term of imprisonment | 0011| of more than one year; or | 0012| (c) the offense would have been | 0013| classified as a felony in this state at the time of | 0014| conviction. | 0015| B. ~[Any]~ |A| person convicted of a noncapital | 0016| felony in this state whether within the Criminal Code or the | 0017| Controlled Substances Act or not who has incurred one prior | 0018| felony conviction ~[which]~ |that| was part of a separate | 0019| transaction or occurrence or conditional discharge ~[under]~ | 0020| |pursuant to| Section ~[31-20-7]~ |31-20-13| NMSA 1978 is a | 0021| habitual offender and his basic sentence shall be increased by | 0022| one year and the sentence imposed by this subsection shall not | 0023| be suspended or deferred. | 0024| C. ~[Any]~ |A| person convicted of a noncapital | 0025| felony in this state whether within the Criminal Code or the | - 2 - 0001| Controlled Substances Act or not who has incurred two prior | 0002| felony convictions ~[which]~ |that| were parts of separate | 0003| transactions or occurrences or conditional discharge ~[under]~ | 0004| |pursuant to| Section ~[31-20-7]~ |31-20-13| NMSA 1978 is a | 0005| habitual offender and his basic sentence shall be increased by | 0006| four years, and the sentence imposed by this subsection shall | 0007| not be suspended or deferred. | 0008| D. ~[Any]~ |A| person convicted of a noncapital | 0009| felony in this state whether within the Criminal Code or the | 0010| Controlled Substances Act or not who has incurred three or | 0011| more prior felony convictions ~[which]~ |that| were parts of | 0012| separate transactions or occurrences or conditional discharge | 0013| ~[under]~ |pursuant to| Section ~[31-20-7]~ |31-20-13| NMSA | 0014| 1978 is a habitual offender and his basic sentence shall be | 0015| increased by eight years and the sentence imposed by this | 0016| subsection shall not be suspended or deferred." | 0017| Section 2. Section 66-8-102 NMSA 1978 (being Laws 1953, | 0018| Chapter 139, Section 54, as amended by Laws 1997, Chapter 43, | 0019| Section 1 and also by Laws 1997, Chapter 205, Section 1) is | 0020| amended to read: | 0021| "66-8-102. PERSONS UNDER |THE| INFLUENCE OF INTOXICATING | 0022| LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE | 0023| OF INTOXICATING LIQUOR OR DRUGS--PENALTY.-- | 0024| A. It is unlawful for ~[any]~ |a| person who is | 0025| under the influence of intoxicating liquor to drive ~[any]~ | - 3 - 0001| |a| vehicle ~[within]~ |in| this state. | 0002| B. It is unlawful for ~[any]~ |a| person who is | 0003| under the influence of ~[any]~ |a| drug to a degree that | 0004| renders him incapable of safely driving a vehicle to drive | 0005| ~[any]~ |a| vehicle ~[within]~ |in| this state. | 0006| C. It is unlawful for ~[any]~ |a| person who has | 0007| an alcohol concentration of eight one-hundredths or more in | 0008| his blood or breath to drive ~[any]~ |a| vehicle ~[within]~ | 0009| |in| this state. | 0010| D. Aggravated driving while under the influence of | 0011| intoxicating liquor or drugs consists of a person who: | 0012| (1) has an alcohol concentration of sixteen | 0013| one-hundredths or more in his blood or breath while driving | 0014| ~[any]~ |a| vehicle ~[within]~ |in| this state; | 0015| (2) has caused bodily injury to a human being | 0016| as a result of the unlawful operation of a motor vehicle while | 0017| driving under the influence of intoxicating liquor or drugs; | 0018| or | 0019| (3) refused to submit to chemical testing, as | 0020| provided for in the Implied Consent Act, and in the judgment | 0021| of the court, based ~[upon]~ |on| evidence of intoxication | 0022| presented to the court, was under the influence of | 0023| intoxicating liquor or drugs. | 0024| E. Every person under first conviction ~[under]~ | 0025| |pursuant to| this section shall be punished, notwithstanding | - 4 - 0001| the provisions of Section 31-18-13 NMSA 1978, by imprisonment | 0002| for not more than ninety days or by a fine of not more than | 0003| five hundred dollars ($500) or both; provided that if the | 0004| sentence is suspended in whole or in part or deferred, the | 0005| period of probation may extend beyond ninety days but shall | 0006| not exceed one year. Upon a first conviction ~[under]~ | 0007| |pursuant to| this section, an offender may be sentenced to | 0008| not less than forty-eight hours of community service or a fine | 0009| of three hundred dollars ($300). The offender shall be | 0010| ordered by the court to participate in and complete a | 0011| screening program described in Subsection ~[H]~ |K| of this | 0012| section and to attend a driver rehabilitation program for | 0013| alcohol or drugs, also known as a "DWI school", approved by | 0014| the traffic safety bureau of the state highway and | 0015| transportation department and also may be required to | 0016| participate in other rehabilitative services as the court | 0017| shall determine to be necessary. In addition to those | 0018| penalties, when an offender commits aggravated driving while | 0019| under the influence of intoxicating liquor or drugs, the | 0020| offender shall be sentenced to not less than forty-eight | 0021| consecutive hours in jail. If an offender fails to complete, | 0022| within a time specified by the court, any community service, | 0023| screening program, treatment program or DWI school ordered by | 0024| the court, the offender shall be sentenced to not less than an | 0025| additional forty-eight consecutive hours in jail. ~[Any]~ |A| | - 5 - 0001| jail sentence imposed ~[under]~ |pursuant to| this subsection | 0002| for failure to complete, within a time specified by the court, | 0003| any community service, screening program, treatment program or | 0004| DWI school ordered by the court or for aggravated driving | 0005| while under the influence of intoxicating liquor or drugs | 0006| shall not be suspended, deferred or taken under advisement. | 0007| On a first conviction ~[under]~ |pursuant to| this section, | 0008| any time spent in jail for the offense prior to the conviction | 0009| for that offense shall be credited to any term of imprisonment | 0010| fixed by the court. A deferred sentence ~[under]~ |pursuant | 0011| to| this subsection shall be considered a first conviction for | 0012| the purpose of determining subsequent convictions. | 0013| F. A second or third conviction ~[under]~ | 0014| |pursuant to| this section shall be punished, notwithstanding | 0015| the provisions of Section 31-18-13 NMSA 1978, by imprisonment | 0016| for not more than three hundred sixty-four days or by a fine | 0017| of not more than one thousand dollars ($1,000) or both; | 0018| provided that if the sentence is suspended in whole or in | 0019| part, the period of probation may extend beyond one year but | 0020| shall not exceed five years. Notwithstanding any provision of | 0021| law to the contrary for suspension or deferment of execution | 0022| of a sentence: | 0023| (1) upon a second conviction, each offender | 0024| shall be sentenced to a jail term of not less than seventy-two | 0025| consecutive hours, forty-eight hours of community service and | - 6 - 0001| a fine of five hundred dollars ($500). In addition to those | 0002| penalties, when an offender commits aggravated driving while | 0003| under the influence of intoxicating liquor or drugs, the | 0004| offender shall be sentenced to a jail term of not less than | 0005| ninety-six consecutive hours. If an offender fails to | 0006| complete, within a time specified by the court, any community | 0007| service, screening program or treatment program ordered by the | 0008| court, the offender shall be sentenced to not less than an | 0009| additional seven consecutive days in jail. A penalty imposed | 0010| pursuant to this paragraph shall not be suspended or deferred | 0011| or taken under advisement; and | 0012| (2) upon a third conviction, an offender | 0013| shall be sentenced to a jail term of not less than thirty | 0014| consecutive days and a fine of seven hundred fifty dollars | 0015| ($750). In addition to those penalties, when an offender | 0016| commits aggravated driving while under the influence of | 0017| intoxicating liquor or drugs, the offender shall be sentenced | 0018| to a jail term of not less than sixty consecutive days. If an | 0019| offender fails to complete, within a time specified by the | 0020| court, any screening program or treatment program ordered by | 0021| the court, the offender shall be sentenced to not less than an | 0022| additional sixty consecutive days in jail. A penalty imposed | 0023| pursuant to this paragraph shall not be suspended or deferred | 0024| or taken under advisement. | 0025| G. Upon a fourth ~[or subsequent]~ conviction | - 7 - 0001| ~[under]~ |pursuant to| this section, an offender is guilty of | 0002| a fourth degree felony ~[as provided in]~ |and, | 0003| notwithstanding the provisions of| Section 31-18-15 NMSA 1978, | 0004| ~[and]~ shall be sentenced to a ~[jail]~ term |of | 0005| imprisonment| of ~[not less than]~ |eighteen months|, six | 0006| months |of| which shall not be suspended or deferred or taken | 0007| under advisement. | 0008| |H. Upon a fifth conviction pursuant to this | 0009| section, an offender is guilty of a fourth degree felony and, | 0010| notwithstanding the provisions of Section 31-18-15 NMSA 1978, | 0011| shall be sentenced to a term of imprisonment of two years, one | 0012| year of which shall not be suspended or deferred or taken | 0013| under advisement. | 0014| I. Upon a sixth conviction pursuant to this | 0015| section, an offender is guilty of a fourth degree felony and, | 0016| notwithstanding the provisions of Section 31-18-15 NMSA 1978, | 0017| shall be sentenced to a term of imprisonment of thirty months, | 0018| eighteen months of which shall not be suspended or deferred or | 0019| taken under advisement. | 0020| J. Upon a seventh or subsequent conviction | 0021| pursuant to this section, an offender is guilty of a third | 0022| degree felony and, notwithstanding the provisions of Section | 0023| 31-18-15 NMSA 1978, shall be sentenced to a term of | 0024| imprisonment of three years, two years of which shall not be | 0025| suspended or deferred or taken under advisement.| | - 8 - 0001| ~[H.]~ |K.| Upon any conviction ~[under]~ | 0002| |pursuant to| this section, an offender shall be required to | 0003| participate in and complete, within a time specified by the | 0004| court, an alcohol or drug abuse screening program and, if | 0005| necessary, a treatment program approved by the court. The | 0006| penalty imposed pursuant to this subsection shall not be | 0007| suspended, deferred or taken under advisement. | 0008| ~[I.]~ |L.| In the case of a first, second or | 0009| third offense ~[under]~ |pursuant to| this section, the | 0010| magistrate court has concurrent jurisdiction with district | 0011| courts to try the offender. | 0012| ~[J.]~ |M.| A conviction under a municipal or | 0013| county ordinance in New Mexico or a law of any other | 0014| jurisdiction, territory or possession of the United States | 0015| that is equivalent to New Mexico law for driving while under | 0016| the influence of intoxicating liquor or drugs, prescribing | 0017| penalties for driving while under the influence of | 0018| intoxicating liquor or drugs shall be deemed to be a | 0019| conviction ~[under]~ |pursuant to| this section for purposes | 0020| of determining whether a conviction is a second or subsequent | 0021| conviction. | 0022| ~[K.]~ |N.| In addition to any other fine or fee | 0023| ~[which]~ |that| may be imposed pursuant to the conviction or | 0024| other disposition of the offense ~[under]~ |pursuant to| this | 0025| section, the court may order the offender to pay the costs of | - 9 - 0001| ~[any]~ court-ordered screening and treatment programs. | 0002| ~[L.]~ |O.| As used in this section: | 0003| (1) "bodily injury" means an injury to a | 0004| person that is not likely to cause death or great bodily harm | 0005| to the person, but does cause painful temporary disfigurement | 0006| or temporary loss or impairment of the functions of ~[any]~ | 0007| |a| member or organ of the person's body; and | 0008| (2) "conviction" means an adjudication of | 0009| guilt and does not include imposition of a sentence." | 0010| Section 3. EFFECTIVE DATE.--The effective date of the | 0011| provisions of this act is July 1, 1998. | 0012| - 10 - |