NOTE: As provided in LFC policy, this report is
intended only for use by the standing finance committees of the
legislature. The Legislative Finance Committee does not assume
responsibility for the accuracy of the information in this report when used for
other purposes.
The most recent FIR
version (in HTML & Adobe PDF formats) is available on the Legislative
Website. The Adobe PDF version includes
all attachments, whereas the HTML version does not. Previously issued FIRs and attachments may be
obtained from the LFC in
|
SPONSOR: |
Swisstack |
DATE TYPED: |
|
HB |
117 |
||
|
SHORT TITLE: |
DWI Penalties for Certain Offenders |
SB |
|
||||
|
|
ANALYST: |
Fox-Young |
|||||
APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
$2,500.0 |
|
Significant |
Recurring |
General
Fund |
|
|
|
|
$500.0 |
Recurring |
General
Fund |
(Parenthesis
( ) Indicate Expenditure Decreases)
REVENUE
|
Estimated Revenue |
Subsequent Years Impact |
Recurring or
Non-Rec |
Fund Affected |
|
|
FY03 |
FY04 |
|
|
|
|
|
Minimal |
Minimal* |
Recurring |
Intensive
Supervision
Fund |
*CD reports that there will be a minimal increase
in revenue to the intensive supervision fund due to extended periods of
probation and parole as well as possible supervision of misdemeanor offenders.
Responses
Received From
Corrections
Department (CD)
Administrative
Office of the Courts (AOC)
State
Highway and Transportation Department (SHTD)
Public
Defender Department (PDD)
Attorney
General (AG)
Administrative
Office of the District Attorneys (AODA)
SUMMARY
Synopsis of Bill
House Bill 117 amends sections of the Habitual
Offenders Act relating to the sentencing of persons convicted of drug and
alcohol driving offenses. It increases
penalties for certain felony DWI offenders, mandates treatment for repeat DWI
offenders and requires that the Corrections Department (CD) provide substance
abuse counseling and treatment to felony DWI offenders.
The bill exempts offenders convicted of
aggravated driving while under the influence of intoxicating liquor or
drugs. (Section 66-8-102 NMSA)
The bill removes the impact of completion of
DWI screening programs on sentencing and increases penalties for fourth
and subsequent DWI offenses. The
bill mandates incarceration for fourth and subsequent offenses; fifth and sixth
time offenses remain fourth degree felonies; and seventh and subsequent
offenses are increased to third degree felonies.
·
Fourth
time offenders shall be sentenced to a term of imprisonment extending for a
minimum of six and a maximum of eighteen months.
·
Fifth
time offenders shall be sentenced to a term of imprisonment extending for a minimum
of twelve and a maximum of twenty-four months.
·
Sixth
time offenders will be sentenced to a term of imprisonment extending for a minimum
of eighteen and a maximum of thirty months.
·
Seventh
time and subsequent offenders will be sentenced to a term of imprisonment extending
for a minimum of twenty-four months and a maximum of thirty-six months.
Mandatory court-approved
treatment programs—thirty-day inpatient or ninety-day outpatient—are imposed
for second and third misdemeanor offenses.
House Bill 117 appropriates $2,500,000 from
the General Fund to the Corrections Department (CD) for the provision of
substance abuse counseling and treatment for felony DWI offenders. CD
shall provide substance abuse counseling and treatment to any person who has
been convicted of a DWI felony.
Significant Issues
The Attorney General (AG) reports that HB 117 adopts the Supreme Court's reasoning in State v. Anaya, 1997-NMSC-010, 123 N.M. 14, 933 P.2d 223, that held that a DWI fourth degree felony was different from other fourth degree felonies and should not be included in the Habitual Offender Act. When the DWI Reform Act was passed in 1992, the Legislature created a fourth-degree felony penalty for a fourth or subsequent conviction of DWI. The Anaya case dealt with whether the Legislature intended to create a special kind of fourth-degree felony or a "regular" fourth-degree felony that would be subject to habitual offender enhancement. The Supreme Court initially decided the Legislature intended felony DWI to be treated like all other felony crimes. After Justice Frost was replaced on the court, the opinion was withdrawn and a new opinion was substituted. This second opinion held the legislative intent was not clear and therefore a special kind of felony had been created. AG reports that the passage of HB 117 would clarify the Legislature's intent to treat felony DWI’s separately from other felonies.
FISCAL IMPLICATIONS
The appropriation of
$2,500.0 contained in this bill is a recurring expense to the general
fund. Any unexpended or unencumbered
balance remaining at the end of fiscal year 2004 shall revert to the general
fund.
CD reports that the most significant fiscal
implications to the department will result from increases in the prison
population, increased enrollment in treatment programs, and increases in
probation and parole caseloads; however, the bill does not contain an
appropriation to fund such increases. CD
estimates cost increases will begin to surface about one year after the
effective date, then leveling off in the next three years. CD estimates that HB 117 would result in an annual
increase of approximately 30 to 40 longer prison sentences for fifth
convictions and an annual increase of approximately 20 to 30 longer sentences
for sixth, seventh and subsequent convictions.
Additionally, CD reports that increasing the
penalties from a fourth to third degree felony for seventh and subsequent
offenses will result in an increase of one year in the period of probation and
parole for offenders, yielding a corresponding increase in probation and parole
costs. Mandating treatment for
misdemeanor offenses will also serve to increase supervision by probation and
parole.
CD estimates that the provisions of HB 117 will
transfer some of the costs currently associated with housing fourth degree
offenders in county jails to department prisons and probationary supervision.
Based upon Fiscal Year 02 actual expenditures,
the annual contract/private prison cost of incarceration is $23,552 for males,
and the annual per client cost to house a female inmate at a privately operated
facility is $25,117. Because state-owned
prisons are essentially at capacity, any net increase in inmate population will
be housed at a contract/private facility.
The annual per client cost for a standard supervision program in
Probation and Parole is $1,533, and the annual per client cost in Intensive
Supervision programs is $2,964. The
annual per client cost in department-operated Community Corrections programs is
$5,618, and the annual per client cost in privately-operated Community
Corrections programs is $10,953.
CD reports that a $2,500.0 appropriation may not
cover substance abuse treatment for all DWI felony offenders. The bill mandates that
CD provide substance abuse treatment to all felony DWI offenders, regardless of
whether they are sentenced to prison or sentenced to probation. Currently, prison programs for substance
abuse treatment exist as voluntary programs and making the programs mandatory
will increase the present numbers of offenders attending such programs in
prisons.
The statutory amendments proposed in this bill
will yield a significant increase in the number of felony DWI convictions,
therefore necessitating an increase in the number of felony
prosecutors, defense attorneys and court staff.
Cost increases will be further exacerbated because felony cases are
inherently more expensive than misdemeanors.
Public Defender Department (PDD) reports that clients facing harsher jail
terms are less likely to plead at either the magistrate or district level.
PDD indicates that this bill will significantly increase the department’s needs
for in-house and contract counsel and that in-house felony counsel cost more
than entry-level misdemeanor attorneys who staff the lower courts. The department estimates that this bill would
increase the need for felony attorneys in each of the eight outlying districts,
The
CONFLICT, DUPLICATION,
RELATIONSHIP
Relates to HB 40: amends same section of law, has conflicting jail times; relates to HB 139-amending same section of law, no conflicts; relates to HB 189-amends same section of law, has conflicting language; relates to SB 16-amends same section of law, has conflicting language; relates to SB 93-amends same section of law, has conflicting language; and SB 99-amends same section of law, no conflicting language.
TECHNICAL ISSUES
SHTD reports that HB
117, as written, brings the state out of compliance with the federal government
because it requires only first time DWI offenders undergo screening, as opposed
to all offenders. SHTB recommends
amending section 66-8-102 to retain mandatory screening
and mandatory treatment for all offenders, basing treatment on individuals’
screening results.
Additionally, HB 117 does not satisfy the federal government’s
requirements for mandatory minimum sentencing of repeat offenders. The guidelines laid out in HB 117 mandate a
minimum sentence of no fewer than 72 hours in jail for a second conviction, but
the federal government requires a sentence of no fewer than 120 hours for such
convictions.