46th legislature - STATE OF NEW MEXICO - first session, 2003
RELATING TO DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; INCREASING PENALTIES FOR FIFTH AND SUBSEQUENT DWI CONVICTIONS; AMENDING A SECTION OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. 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] J
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] 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 the provisions of 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, one year of which shall not be suspended, deferred or taken under advisement.
I. Upon a sixth or subsequent conviction pursuant to the provisions of this section, an offender is guilty of a second degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of nine years, three years of which shall not be suspended, deferred or taken under advisement.
[H.] J. 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.] K. 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.] L. 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.] M. 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.] N. 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.] O. 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.] P. 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.] Q. 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 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.