Committee Substitute for SB0003PAS

SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILLS 3 & 5

49th legislature - STATE OF NEW MEXICO - second session, 2010

AN ACT

RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; INCREASING PENALTIES AND FINES FOR DWI OFFENDERS; PROVIDING FOR DWI COMMUNITY CUSTODY PROGRAMS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of Chapter 33 NMSA 1978 is enacted to read:

"[NEW MATERIAL] DWI COMMUNITY CUSTODY PROGRAM.--

A. The corrections department, local jails and detention facilities may establish DWI community custody programs pursuant to this section and in accordance with rules promulgated by the corrections department.

B. A DWI community custody program is an individualized form of supervised community custody for DWI offenders that includes prescribed activities and restricted daily movements. Compliance shall be verified by an electronic monitoring or surveillance system in place twenty-four hours a day, seven days a week. In addition, an alcohol monitoring component is required to determine compliance with restrictions against alcohol consumption. Offenders may also be subject to random drug and alcohol testing.

C. Offenders participating in a DWI community custody program shall agree in writing to abide by the terms and conditions of their individualized program, violation of which shall be referred to correctional administrators for corrective action that shall include the offender's return to serve the mandatory minimum term of incarceration or a longer term up to the remainder of the sentence in accordance with the judgment of the court.

D. Correctional administrators shall follow the orders of the sentencing judge unless resources are unavailable or the offender does not meet the eligibility criteria for a DWI community custody program, in which case, the alternative shall be applied. Correctional administrators shall ensure that the caseloads of officers involved in the DWI community custody program allow for intensive monitoring and supervision of the offenders.

E. The corrections department shall periodically review and update the rules applicable to DWI community custody programs and shall report to the appropriate interim legislative committee any DWI community custody program that does not meet the requirements established by rule.

F. As used in this section, "correctional administrators" means jail or detention facility administrators or corrections department administrators."

Section 2. Section 66-8-102 NMSA 1978 (being Laws 1953, Chapter 139, Section 54, as amended) is amended to read:

"66-8-102. [PERSONS] DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--AGGRAVATED DRIVING [WHILE] UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--[PENALTY] PENALTIES.--

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 the person incapable of safely driving a vehicle to drive a vehicle within this state.

C. It is unlawful for:

(1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or

(2) a person to drive a commercial motor vehicle in this state if the person has an alcohol concentration of four one hundredths or more in the person's blood or breath within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.

D. Aggravated driving [while] under the influence of intoxicating liquor or drugs consists of [a person who]:

(1) [drives] driving a vehicle in this state [and has] with an alcohol concentration of sixteen one hundredths or more in the [person's] driver's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle;

(2) [has caused] causing 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] refusing 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, the driver was under the influence of intoxicating liquor or drugs.

E. 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] and by a fine of [not more than five hundred dollars ($500), or both] one thousand dollars ($1,000); 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] In addition, an offender shall be sentenced to:

(1) a minimum jail term of seventy-two consecutive hours or, for aggravated driving under the influence of intoxicating liquor or drugs, a minimum jail term of one hundred twenty consecutive hours. The jail term imposed pursuant to this paragraph is mandatory and shall not be suspended, deferred or taken under advisement; provided that, in lieu of the mandatory jail term, the offender may be sentenced to a minimum of thirty days in a DWI community custody program or, for aggravated driving under the influence of intoxicating liquor or drugs, a minimum of fifty days in a DWI community custody program. A violation of the conditions of the program shall result in the imposition of the mandatory minimum term of incarceration;

(2) not less than twenty-four hours of community service [In addition, the offender may be required to pay a fine of three hundred dollars ($300). The offender shall be ordered by the court to];

(3) participate in and complete a screening program described in Subsection [K] M of this section; [and to] (4) 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]

(5) 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 or fails to comply with any other condition of probation, 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.]

F. 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 Subsection E of this [subsection] section shall be considered a first conviction for the purpose of determining subsequent convictions.

[F.] G. 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] and by a fine of [not more than one thousand dollars ($1,000), or both] two thousand dollars ($2,000); 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, an offender shall be:

(1) sentenced to a minimum jail term of [not less than ninety-six consecutive hours] seven consecutive days or, for aggravated driving under the influence of intoxicating liquor or drugs, a minimum jail term of fifteen consecutive days. The jail term imposed pursuant to this paragraph is mandatory and shall not be suspended, deferred or taken under advisement; provided that, in lieu of the mandatory jail term, the offender may be sentenced to a minimum of seventy days in a DWI community custody program or, for aggravated driving under the influence of intoxicating liquor or drugs, a minimum of one hundred fifty days in a DWI community custody program. A violation of the conditions of the program shall result in the imposition of the mandatory minimum term of incarceration;

(2) sentenced to not less than 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.]

(3) required to participate in and complete, which requirement shall not be suspended, deferred or taken under advisement, within a time specified by the court:

(a) not less than a twenty-eight-day inpatient, residential or in-custody substance abuse treatment program approved by the court;

(b) not less than a ninety-day outpatient treatment program approved by the court;

(d) any other substance abuse treatment program approved by the court.

H. If an offender with a first or second conviction fails to complete, within a time specified by the court, any community service, screening program, [or] treatment program or DWI school ordered by the court, the offender shall be sentenced to the following mandatory jail terms that shall not be suspended, deferred or taken under advisement:

(1) for a first conviction, not less than an additional forty-eight consecutive hours in jail; and

(2) for a second conviction, 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, not less than ninety-six hours of community service 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 community service, 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.] I. Upon a [fourth] third conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be [sentenced to] punished by a fine of five thousand dollars ($5,000) and a term of imprisonment of eighteen months, six months of which are mandatory and shall not be suspended, deferred or taken under advisement; provided that, three months of the mandatory incarceration may be spent in a DWI community custody program. A violation of the conditions of the program shall result in the imposition of the entire mandatory term of incarceration.

[H.] J. Upon a [fifth] fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be [sentenced to] punished by a fine of five thousand dollars ($5,000) and a term of imprisonment of two years, one year of which is mandatory and shall not be suspended, deferred or taken under advisement; provided that, six months of the mandatory incarceration may be spent in a DWI community custody program. A violation of the conditions of the program shall result in the imposition of the entire mandatory term of incarceration.

[I.] K. Upon a [sixth] fifth conviction pursuant to 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] punished by a fine of five thousand dollars ($5,000) and a term of imprisonment of thirty months, eighteen months of which are mandatory and shall not be suspended, deferred or taken under advisement; provided that, nine months of the mandatory incarceration may be spent in a DWI community custody program. A violation of the conditions of the program shall result in the imposition of the entire mandatory term of incarceration.

[J.] L. Upon a [seventh] sixth or subsequent conviction pursuant to 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] punished by a fine of five thousand dollars ($5,000) and a term of imprisonment of three years, two years of which are mandatory and shall not be suspended, deferred or taken under advisement; provided that, one year of the mandatory incarceration may be spent in a DWI community custody program. A violation of the conditions of the program shall result in the imposition of the entire mandatory term of incarceration.

[K.] M. 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 approved by the department of finance and administration 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.

[L. Upon a second or third conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court:

(1) not less than a twenty-eight-day inpatient, residential or in-custody substance abuse treatment program approved by the court;

(2) not less than a ninety-day outpatient treatment program approved by the court;

(3) a drug court program approved by the court; or

(4) any other substance abuse treatment program approved by the court.

The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

M.] N. Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender in its custody. While the offender is on probation or parole under its supervision, the corrections department shall also provide substance abuse counseling and treatment to the offender or shall require the offender to obtain substance abuse counseling and treatment.

[N.] O. Upon a conviction pursuant to this section, an offender shall be required to obtain an ignition interlock license and have an ignition interlock device installed and operating 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. The offender shall operate only those vehicles equipped with ignition interlock devices for:

(1) a period of one year, for a first offender;

(2) a period of two years, for a second conviction pursuant to this section;

(3) a period of three years, for a third conviction pursuant to this section; or

(4) the remainder of the offender's life, for a fourth or subsequent conviction pursuant to this section.

[O.] P. Five years from the date of conviction and every five years thereafter, a fourth or subsequent offender may apply to a district court for removal of the ignition interlock device requirement provided in this section and for restoration of a driver's license. A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the license; provided that the offender has not been subsequently convicted of driving a motor vehicle while under the influence of intoxicating liquor or drugs. Good cause may include an alcohol screening and proof from the interlock vendor that the person has not had violations of the interlock device.

[P.] Q. In the case of a first or second [or third] offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.

[Q.] R. 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 or of a tribe, when that ordinance or law is equivalent to New Mexico law for driving [while] under the influence of intoxicating liquor or drugs, and 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.

[R.] S. In addition to any other fine or fee 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.

[S.] T. With respect to this section and notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation.

[T.] U. 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) "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

(a) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;

(b) has a gross vehicle weight rating of more than twenty-six thousand pounds;

(d) is of any size and is used in the transportation of hazardous materials, which requires the motor vehicle to be placarded under applicable law."

Section 3. TEMPORARY PROVISION--TASK FORCE--RULES FOR DWI COMMUNITY CUSTODY PROGRAMS.--The corrections department shall assemble and convene a task force that includes the governor's DWI czar and representatives from the judiciary, the counties and any interested municipalities to promulgate rules for DWI community custody programs. The rules shall include eligibility and participation criteria, levels of supervision, uniform procedures for electronic and alcohol monitoring, substance abuse treatment and reintegration programs and screening and tracking programs. The rules may also include curfew restrictions, funding plans, restitution to the victims and other criteria.

Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2010.

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