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

SPONSOR Carraro

ORIGINAL DATE

LAST UPDATED

1/30/07

HB

SHORT TITLE

DWI As Prior Felony For Sentencing

SB

451

ANALYST

C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB 441

SOURCES OF INFORMATION

LFC Files

Responses Received From

Corrections Department (NMCD)

Public Defender Department (PD)

New Mexico Sentencing Commission

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

This bill amends the Habitual Offender Sentencing Act, NMSA 1978, § 31-18-17 to include a

prior DWI felony conviction under the DWI statute, NMSA 1978, § 66-8-102, as a “useable"

prior for enhancement purposes.

FISCAL IMPLICATIONS

Under the current habitual offender statute, persons convicted of more than one noncapital felony

are considered habitual offenders whose basic sentences (for subsequent felonies) are increased

by one year (for a second felony), four years (for a third felony) and eight years (for a fourth or

subsequent felony). However, under the current statute, DWI felony convictions pursuant to

Section 66-8-102 are not considered felony convictions for purposes of determining habitual

offender status/sentence enhancement.

Senate Bill 451 – Page

2

The bill amends the habitual offender statute to require that a DWI conviction pursuant to

Section 66-8-102 be considered a predicate felony offense that must be used in determining if the

person is a habitual offender. Since many individuals have felony DWI convictions, they will be

habitual offenders (and serve enhanced basic sentences) if convicted of another felony (including

another DWI felony) in the future. This will mean longer prison sentences and potentially longer

periods of probation supervision. There is no appropriation in the bill to cover any of these

increased costs to the Department.

The contract/private prison annual cost of incarcerating an inmate is $23,867 per year for males.

The cost per client to house a female inmate at a privately operated facility is $21,651 per year.

Because state owned prisons are essentially at capacity, any net increase in inmate population

will be housed at a contract/private facility.

The cost per client in Probation and Parole for a standard supervision program is $1,467 per year.

The cost per client in Intensive Supervision programs is $3,383 per year. The cost per client in

department-operated Community Corrections programs is $3,503 per year. The cost per client in

privately-operated Community Corrections programs is $7,917 per year. The cost per client per

year for male and female residential Community Corrections programs is $39,401.

SIGNIFICANT ISSUES

Ten years ago, in State v. Anaya, 123 N.M. 14 (1997), the New Mexico Supreme Court ruled that

a felony conviction for DWI does not count as a prior felony conviction for purposes of

sentencing under the Habitual Offender Act. When a person is being sentenced for a felony and

the person has one or more prior felony convictions, the present sentence is increased by one

year for one prior felony, four years for two prior felonies, and eight years for three or more prior

felonies. NMSA 1978, Section 31-18-17. The New Mexico Supreme Court in Anaya concluded

that the legislature did not intend to include what was then the newly created DWI felony among

those felony convictions to which the Habitual Offender Act sentencing applies. The Court

found “Where, as here, the legislative intent with regard to the applicability of a criminal

sentencing statute is unclear and ambiguous, it is for the legislature to clarify its intent and not

the prerogative of this Court." SB 441 appears intended to address the Court’s invitation to

remove ambiguity and lack of clarity by requiring a felony DWI conviction be treated the same

as any other felony conviction for purpose of habitual offender sentencing.

PERFORMANCE IMPLICATIONS

The increases in penalties for DWI offenses, including felony convictions for repeat offenders,

have resulted in a dramatic rise in the number of DWI cases that go to trial and in the complexity

of these cases. Appellate and trial time devoted to DWI cases has required a greater devotion of

court resources than before penalties were increased. Courts will have to grapple with

challenges to the proposal to apply habitual offender sentencing to felony DWI convictions, a

process that will have a performance impact that cannot be stated with certainty.

ADMINISTRATIVE IMPLICATIONS

This bill could have a minimal to substantial negative effect on the state’s ability to provide

prison-related and probation/parole supervision services, depending on the number of individuals

who are identified as habitual offenders because of this bill.

Senate Bill 451 – Page

3

Depending on just how many DWI felony offenders there are in New Mexico and how many of

those offenders receive a second or subsequent felony conviction for DWI or another crime, this

bill could result in a minimal to substantial increase in prison population and probation/parole

caseloads.

The state might be able to absorb and handle the prison population and probation/parole caseload

increases with its current staff and current prison space, but not if the bill causes substantial

increases to the prison population or probation/parole caseloads.

DUPLICATION

SB 441 is an exact duplicate.

TECHNICAL ISSUES

For purposes of the courts’ ability to interpret legislative intent, it would be useful for the bill to

state whether it applies to pending prosecutions on its effective date, July 1, 2007, based on the

date of the crime, the date of charging, or the date of sentencing. See State v. Shay, 136 N.M. 8,

10 (Ct.App.), certiorari quashed, 137 N.M. 266 (2005).

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

A felony DWI conviction will continue to be the only felony in New Mexico for which a

convicted felon avoids application of habitual offender sentencing.

CS/csd