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SPONSOR: |
Cravens |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Multiple DWI Offender Registry Act |
SB |
259 |
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ANALYST: |
Fox-Young |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
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$0.1 Significant |
Recurring |
General
Fund |
|
|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Administrative
Office of the Courts (AOC)
Department
of Public Safety (DPS)
Administrative
Office of the District Attorneys (AODA)
Attorney
General (AG)
Corrections
Department (CD)
State
Highway and Transportation Department (SHTD)
Taxation
and Revenue Department (TRD)
SUMMARY
Synopsis
of Bill
Senate Bill 259
provides for a Multiple DWI Offender Registry to aid law enforcement. The bill requires every “multiple DWI
offender” to register with the county sheriff.
The county sheriff shall maintain a local registry of multiple DWI
offenders and shall forward registration information to the Department of
Public Safety (DPS). DPS shall maintain
a central registry, retaining registration information regarding a multiple DWI
offender for the entirety of the offender’s natural life. DPS may develop its DWI offender database in
conjunction with the Administrative Office of the Courts’ (AOC) database.
“Multiple DWI
offender” is defined as a person who has two or more convictions for driving
while under the influence of intoxicating liquor or drugs, as provided in
Section 66-8-102 NMSA 1978; provided that only one conviction for driving while
under the influence of intoxicating liquor or drugs between July 1, 1992 and
July 1, 2002.
A court shall provide
a multiple DWI offender with written notice of his duty to register and report
subsequent changes of address. The court
shall also provide written notification regarding a multiple DWI offender’s
conviction to the sheriff of the county in which the offender resides and to
DPS.
A multiple DWI
offender who willfully provides false information or fails to comply with the
registration requirements is guilty of a fourth degree felony.
Significant
Issues
The Attorney General (AG) notes there is
potential for courts to construe the provisions of the bill as punitive and not
regulatory in nature. Laws requiring
registration, namely sexual offender registration, have been subject to
constitutional challenges. State and
federal constitutional challenge could be made that the multiple DWI offender
registry and registration requirements are punitive and provide an additional
punishment following a DWI conviction.
The definition of multiple DWI offender is such
that, for purposes of the registry, only one conviction for DWI from the ten
year period prior to
The Administrative
Office of the District Attorneys (AODA) notes that the bill may present double
jeopardy concerns because a second DWI conviction is also the basis for
conviction under this bill. This invites
the argument that a fourth degree felony pursuant to this bill constitutes
multiple punishment for the same act.
AODA indicates this argument differs from those against vehicle
forfeitures, which deprive an offender of the instrumentality of the crime of
DWI and help defray costs of enforcing DWI laws.
AODA notes that unlike sex-offender
registration, which is an aid to law enforcement in investigating sex offenses,
this bill deals with a crime that must be committed in the officer’s
presence. This bill would not be of
specific aid to officers in the investigation of DWI offense, and officers will
not be able to stop individuals simply by virtue of the fact that they are
registered as repeat offenders. AODA
indicates that such activity would in fact invite arguments that stops of registered
offenders are pretextual.
FISCAL IMPLICATIONS
AOC notes that that redesigning and maintaining the DWI hardcore offenders report will pose a significant fiscal impact to AOC/JID. Additionally, creation of new forms, dissemination of notifications and conditions, initiation of additional cases, training, and data entry support will require additional funding and resources in the courts and AOC/JID.
The bill, in creating two new fourth degree felony offenses, will likely have significant fiscal implications for the judiciary, district attorneys, public defenders and county jails. Charges that an offender failed to register are also likely to spur a significant increase in probation violations.
Corrections Department (CD) notes that as a
result of the two additional crimes created by the bill, each of which is a
fourth degree felony carrying a maximum prison sentence of 18 months, the
department estimates several additional prison commitments each year and a
corresponding yearly increase in probation-parole caseloads. This phenomenon will have fiscal implications
for the department.
DPS indicates that the creation of a central DWI registry will require significant resources. The department notes that failure to fund the project will likely create a significant administrative burden, also pulling resources from other areas of the department.
TECHNICAL ISSUES
AG notes that Taxation and Revenue Department
(TRD), Motor Vehicle Division (MVD), maintains information and records
regarding DWI offenders, and recommends the bill include TRD as part of the
registry. Law enforcement
will continue to rely on MVD searches, as those who fail to register will not
be listed in the database.
AODA reports that prosecution of relevant cases
would still require hard-copy, certified proofs of prior convictions as is
required now to prove a DWI subsequent offense.
AODA indicates that obtaining those proofs presently begins with an MVD
records search and then a request for certified copies from the court where the
offender was convicted. The database
created by this bill is a near duplication of driver histories compiled by MVD.
AG further notes that the ten day registration
requirement included in the bill may be too strict and suggests extending the
period to thirty days to avoid unnecessary litigation.
AG notes that Section 5(B)(6) requires
disclosure of information for all vehicles the offender owns, drives or has
access to. AG suggest this disclosure
provision may be interpreted as overly broad and an invasion of privacy. AG suggests proof of insurance be required as
well.
Section G of the bill refers to “willfully”
failing to register. AODA indicates this
may cause some difficulty in proving a case in court as courts generally look
for general and specific intent in felony cases. AODA notes that intentional violation will be
difficult to prove, especially given that an offender must register annually
for a period of ten years following his most recent DWI conviction.
AOC
recommends the following amendment (page 7, line 1):
“The administrative
office of the courts shall cooperate with the department of public safety by
making all DWI Conviction databases and information available....”
Relates to SB 170 (Relating to Motor Vehicles; creating an
affirmative duty for drivers to report DWI convictions. This bill requires a person licensed to drive
in the State of
JCF/njw