44th legislature - STATE OF NEW MEXICO - second session, 2000
RELATING TO CRIMINAL LAW; INCREASING CRIMINAL PENALTIES FOR HABITUAL DWI OFFENDERS; AMENDING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977, Chapter 216, Section 6, as amended by Laws 1993, Chapter 77, Section 9 and also by Laws 1993, Chapter 283, Section 1) is amended to read:
"31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC SENTENCE.--
A. For the purposes of this section, "prior felony conviction" means:
(1) a conviction for a prior felony committed
[within] in New Mexico whether within the Criminal Code or
not, but not including a prior felony DWI conviction pursuant
to the provisions of Section 66-8-102 NMSA 1978; or
(2) [any] a prior felony for which the person
was convicted other than an offense triable by court martial
if:
(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;
(b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or
(c) the offense would have been classified as a felony in this state at the time of conviction.
B. [Any] A person convicted of a noncapital felony
in this state whether within the Criminal Code or the
Controlled Substances Act or not who has incurred one prior
felony conviction [which] that was part of a separate
transaction or occurrence or conditional discharge [under]
pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a habitual
offender and his basic sentence shall be increased by one
year, and the sentence imposed by this subsection shall not be
suspended or deferred.
C. [Any] A person convicted of a noncapital felony
in this state whether within the Criminal Code or the
Controlled Substances Act or not who has incurred two prior
felony convictions [which] that were parts of separate
transactions or occurrences or conditional discharge [under]
pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a habitual
offender and his basic sentence shall be increased by four
years, and the sentence imposed by this subsection shall not
be suspended or deferred.
D. [Any] A person convicted of a noncapital felony
in this state whether within the Criminal Code or the
Controlled Substances Act or not who has incurred three or
more prior felony convictions [which] that were parts of
separate transactions or occurrences or conditional discharge
[under] pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a
habitual offender and his basic sentence shall be increased by
eight years, and the sentence imposed by this subsection shall
not be suspended or deferred."
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 [any] a person who is under
the influence of intoxicating liquor to drive [any] a vehicle
[within] in this state.
B. It is unlawful for [any] a person who is under
the influence of any drug to a degree that renders him
incapable of safely driving a vehicle to drive [any] a vehicle
[within] in this state.
C. It is unlawful for [any] a person who has an
alcohol concentration of eight one-hundredths or more in his
blood or breath to drive [any] 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
[any] a vehicle [within] in 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 person under first conviction [under]
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. Upon a first conviction under 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] K of this section and to attend a driver
rehabilitation program for alcohol or drugs, also known as a
"DWI school", approved by the traffic safety bureau of the
state highway and transportation department 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 under 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 under 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 under this subsection shall be considered a
first conviction for the purpose of determining subsequent
convictions.
F. A second or third conviction [under] 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 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
[under] pursuant to this section, an offender is guilty of a
fourth degree felony, [as provided in] and, notwithstanding
the provisions of Section 31-18-15 NMSA 1978, [and] shall be
sentenced to a [jail term of not less than six months] term of
imprisonment of eighteen months, six months of which shall not
be suspended or deferred or taken under advisement.
H. Upon a fifth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement.
I. Upon a sixth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement.
J. Upon a seventh or subsequent conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of three years, two years of which shall not be suspended, deferred or taken under advisement.
[H.] K. Upon any conviction [under] 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 penalty imposed pursuant
to this subsection shall not be suspended, deferred or taken
under advisement.
[I.] L. Upon any subsequent misdemeanor conviction
under this section prior to July 1, 2003, as a condition of
probation, an offender may be required to have an ignition
interlock device installed and operating on all motor vehicles
owned by the offender or available for the offender's personal
use, pursuant to rules adopted by the traffic safety bureau.
[J.] M. In the case of a first, second or third
offense [under] pursuant to this section, the magistrate court
has concurrent jurisdiction with district courts to try the
offender.
[K.] N. A conviction under 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 prescribes
penalties for driving while under the influence of
intoxicating liquor or drugs shall be deemed to be a
conviction [under] pursuant to this section for purposes of
determining whether a conviction is a second or subsequent
conviction.
[L.] O. 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.
[M.] P. 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, 2000.