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F I S C A L I M P A C T R E P O R T

SPONSOR Carraro

DATE TYPED 1/31/05

HB

SHORT TITLE Use of Prior DWI Convictions at Sentencing

SB 388

ANALYST Peery

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NA

NA

NA

NA

NA

NA

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Bernalillo County Metro Court (BCMC)

Department of Public Safety (DPS)

New Mexico Corrections Department (NMCD)

Public Defender Department (PDD)

Administrative Office of the District Attorneys (AODA)

New Mexico Sentencing Commission (NMSC)

No Responses

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

Senate Bill 388 adds felony offenses of driving while intoxicated to the definition of “prior fel-

ony conviction” for purposes of the habitual offender sentencing act, NMSA 1978, section 31-

18-17.

PERFORMANCE IMPLICATIONS

PDD states if a felony DWI conviction was to be used to enhance a non-DWI felony conviction,

the proceedings would be subject to additional challenges. PDD reports this would increase the

difficulty of habitual proceedings for the Department’s felony trial attorneys.

Senate Bill 388 -- Page 2

NMCD states the proposed legislation could negatively impact the performance of the Depart-

ment prison programs if it causes a substantial increase in the number of incarcerated persons.

FISCAL IMPLICATIONS

PDD states the use of prior felony DWIs to enhance any other subsequent felony conviction will

increase the number of cases that go to trial.

NMCD reports the proposed legislation will probably cause minimal to moderate cost increases

for the Department if it causes an increase in the number of persons placed in prison.

NMSC states the proposed legislation would result in longer prison terms for repeat DWI of-

fenders. Additional years added to current DWI sentences will translate to a significant need for

prison beds in the immediate future and even more over time.

ADMINISTRATIVE IMPLICATIONS

NMCD states current levels of prison staff may have to work with and provide services for an

increasing number of inmates if the proposed legislation is enacted.

OTHER SUBSTANTIVE ISSUES

PDD reports in State v. Begay, 2001 NMSC 2, 130 N.M. 61, the Supreme Court considered

whether pursuant to the Habitual Offender Act, a prior felony conviction of DWI may be used to

increase any subsequent felony. The Court held that in the absence of clear evidence that the

legislature intended to authorize that result, felony DWIs could not be used for enhancement

purposes. The proposed legislation clarifies the Legislatures’ intent to authorize the use of prior

felony DWI convictions for habitual offender purposes.

PDD states the proposed legislation if enacted would be challenged as a violation of a person’s

right to be free of double jeopardy and right to assistance of counsel.

NMSC reports the proposed legislation would create a scenario where mandatory minimums for

felony DWI convictions would be set forth in two separate sections of law. NMSC states if the

proposed legislation is to make DWI convictions subject to the provisions of the Habitual Of-

fender statute, the bill would require an amendment to remove the escalating sanctions and man-

datory minimums for felony DWI convictions from NMSA 1978, Sections 66-8-102.

RLP/yr