46th legislature - STATE OF NEW MEXICO - first session, 2003
RELATING TO DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; INCREASING PENALTIES FOR FELONY DWI OFFENDERS; MANDATING TREATMENT FOR PERSONS CONVICTED A SECOND OR THIRD TIME FOR DWI; REQUIRING THAT THE CORRECTIONS DEPARTMENT PROVIDE SUBSTANCE ABUSE COUNSELING AND TREATMENT TO FELONY DWI OFFENDERS; AMENDING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.
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) is amended to read:
"31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC SENTENCE.--
A. [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 that was part of a separate transaction or
occurrence or conditional discharge under Section 31-20-13 NMSA
1978 is a habitual offender and his basic sentence shall be
increased by one year. The sentence imposed pursuant to this
subsection shall not be suspended or deferred, unless the court
makes a specific finding that the prior felony conviction and
the instant felony conviction are both for nonviolent felony
offenses and that justice will not be served by imposing a
mandatory sentence of imprisonment and that there are
substantial and compelling reasons, stated on the record, for
departing from the sentence imposed pursuant to this
subsection.
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 two prior
felony convictions that were parts of separate transactions or
occurrences or conditional discharge under Section 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.
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 three or more
prior felony convictions that were parts of separate
transactions or occurrences or conditional discharge under
Section 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.
D. As used in this section, "prior felony conviction" means:
(1) a conviction, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for a prior felony committed within New Mexico whether within the Criminal Code or not, but not including a conviction for a felony pursuant to the provisions of Section 66-8-102 NMSA 1978; or
(2) [any] a prior felony, when less than ten
years have passed prior to the instant felony conviction since
the person completed serving his sentence or period of
probation or parole for the prior felony, whichever is later,
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.
E. As used in this section, "nonviolent felony offense" means application of force, threatened use of force or a deadly weapon was not used by the offender in the commission of the offense."
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. 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] K
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] a
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] a 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] 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] a first 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.
L. Upon a second or third 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 substance abuse treatment program approved by the court or not less than a ninety-day outpatient treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.
M. Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender.
[I.] N. 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.] O. 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.] P. 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.] Q. 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.] R. 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.] S. 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.] T. 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. APPROPRIATION.--Two million five hundred thousand dollars ($2,500,000) is appropriated from the general fund to the corrections department for expenditure in fiscal year 2004 to provide or contract for the provision of substance abuse counseling and treatment for felony DWI offenders. Any unexpended or unencumbered balance remaining at the end of fiscal year 2004 shall revert to the general fund.
Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.