45th legislature - STATE OF NEW MEXICO - second session, 2002
RELATING TO DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PROVIDING THAT A FELONY DWI CONVICTION MAY BE USED AS A PRIOR FELONY CONVICTION FOR THE PURPOSE OF SENTENCING A HABITUAL OFFENDER; MANDATING TREATMENT FOR SECOND AND SUBSEQUENT 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
including a conviction for a felony pursuant to the provisions
of Section 66-8-102 NMSA 1978; or
(2) any 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 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 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 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 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 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
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] in 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] 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 [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] 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 [under] 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 [under] pursuant to 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] five consecutive days, 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]
ten consecutive days. 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 Section 31-18-15 NMSA 1978, and
shall be sentenced to a [jail] term of imprisonment of not
less than six months, which shall not be suspended or deferred
or taken under advisement.
H. Upon [any] a first 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]
requirement imposed pursuant to this subsection shall not be
suspended, deferred or taken under advisement.
[I. 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.]
I. Upon a second or subsequent conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, not less than a thirty-day inpatient treatment program approved by the court or not less than a sixty-day outpatient treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.
J. 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. A conviction [under] 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 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. In addition to any other fine or fee [which]
that may be imposed pursuant to the conviction or other
disposition of the offense [under] pursuant to this section,
the court may order the offender to pay the costs of any
court-ordered screening and treatment programs.
M. 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, 2002.