0001| SENATE BILL 206 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| LINDA M. LOPEZ | 0005| | 0006| | 0007| | 0008| FOR THE DWI OVERSIGHT TASK FORCE | 0009| | 0010| AN ACT | 0011| RELATING TO CRIMINAL LAW; CLARIFYING THAT A FELONY DWI | 0012| CONVICTION MAY BE USED AS A PRIOR FELONY CONVICTION FOR THE | 0013| PURPOSE OF SENTENCING A HABITUAL OFFENDER; AMENDING SECTIONS | 0014| OF THE NMSA 1978. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977, | 0018| Chapter 216, Section 6, as amended by Laws 1993, Chapter 77, | 0019| Section 9 and also by Laws 1993, Chapter 283, Section 1) is | 0020| amended to read: | 0021| "31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC | 0022| SENTENCE.-- | 0023| A. For the purposes of this section, "prior felony | 0024| conviction" means: | 0025| (1) a conviction for a prior felony committed | - 1 - 0001| ~[within]~ |in| New Mexico whether within the Criminal Code or | 0002| not, |including a prior felony DWI conviction pursuant to the | 0003| provisions of Section 66-8-102 NMSA 1978|; or | 0004| (2) ~[any]~ |a| prior felony for which the | 0005| person was convicted other than an offense triable by court | 0006| martial if: | 0007| (a) the conviction was rendered by a | 0008| court of another state, the United States, a territory of the | 0009| United States or the commonwealth of Puerto Rico; | 0010| (b) the offense was punishable, at the | 0011| time of conviction, by death or a maximum term of imprisonment | 0012| of more than one year; or | 0013| (c) the offense would have been | 0014| classified as a felony in this state at the time of | 0015| conviction. | 0016| B. ~[Any]~ |A| person convicted of a noncapital | 0017| felony in this state whether within the Criminal Code or the | 0018| Controlled Substances Act or not who has incurred one prior | 0019| felony conviction ~[which]~ |that| was part of a separate | 0020| transaction or occurrence or conditional discharge ~[under]~ | 0021| |pursuant to| Section ~[31-20-7]~ |31-20-13| NMSA 1978 is a | 0022| habitual offender and his basic sentence shall be increased by | 0023| one year, and the sentence imposed by this subsection shall | 0024| not be suspended or deferred. | 0025| C. ~[Any]~ |A| person convicted of a noncapital | - 2 - 0001| felony in this state whether within the Criminal Code or the | 0002| Controlled Substances Act or not who has incurred two prior | 0003| felony convictions ~[which]~ |that| were parts of separate | 0004| transactions or occurrences or conditional discharge ~[under]~ | 0005| |pursuant to| Section ~[31-20-7]~ |31-20-13| NMSA 1978 is a | 0006| habitual offender and his basic sentence shall be increased by | 0007| four years, and the sentence imposed by this subsection shall | 0008| not be suspended or deferred. | 0009| D. ~[Any]~ |A| person convicted of a noncapital | 0010| felony in this state whether within the Criminal Code or the | 0011| Controlled Substances Act or not who has incurred three or | 0012| more prior felony convictions ~[which]~ |that| were parts of | 0013| separate transactions or occurrences or conditional discharge | 0014| ~[under]~ |pursuant to| Section ~[31-20-7]~ |31-20-13| NMSA | 0015| 1978 is a habitual offender and his basic sentence shall be | 0016| increased by eight years, and the sentence imposed by this | 0017| subsection shall not be suspended or deferred." | 0018| Section 2. Section 66-8-102 NMSA 1978 (being Laws 1953, | 0019| Chapter 139, Section 54, as amended by Laws 1997, Chapter 43, | 0020| Section 1 and also by Laws 1997, Chapter 205, Section 1) is | 0021| amended to read: | 0022| "66-8-102. PERSONS UNDER |THE| INFLUENCE OF INTOXICATING | 0023| LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE | 0024| OF INTOXICATING LIQUOR OR DRUGS--PENALTY.-- | 0025| A. It is unlawful for ~[any]~ |a| person who is | - 3 - 0001| under the influence of intoxicating liquor to drive ~[any]~ | 0002| |a| vehicle ~[within]~ |in| this state. | 0003| B. It is unlawful for ~[any]~ |a| person who is | 0004| under the influence of ~[any]~ |a| drug to a degree that | 0005| renders him incapable of safely driving a vehicle to drive | 0006| ~[any]~ |a| vehicle ~[within]~ |in| this state. | 0007| C. It is unlawful for ~[any]~ |a| person who has | 0008| an alcohol concentration of eight one-hundredths or more in | 0009| his blood or breath to drive ~[any]~ |a| vehicle ~[within]~ | 0010| |in| this state. | 0011| D. Aggravated driving while under the influence of | 0012| intoxicating liquor or drugs consists of a person who: | 0013| (1) has an alcohol concentration of sixteen | 0014| one-hundredths or more in his blood or breath while driving | 0015| ~[any]~ |a| vehicle ~[within]~ |in| this state; | 0016| (2) has caused bodily injury to a human being | 0017| as a result of the unlawful operation of a motor vehicle while | 0018| driving under the influence of intoxicating liquor or drugs; | 0019| or | 0020| (3) refused to submit to chemical testing, as | 0021| provided for in the Implied Consent Act, and in the judgment | 0022| of the court, based ~[upon]~ |on| evidence of intoxication | 0023| presented to the court, was under the influence of | 0024| intoxicating liquor or drugs. | 0025| E. Every person under first conviction ~[under]~ | - 4 - 0001| |pursuant to| this section shall be punished, notwithstanding | 0002| the provisions of Section 31-18-13 NMSA 1978, by imprisonment | 0003| for not more than ninety days or by a fine of not more than | 0004| five hundred dollars ($500), or both; provided that if the | 0005| sentence is suspended in whole or in part or deferred, the | 0006| period of probation may extend beyond ninety days but shall | 0007| not exceed one year. Upon a first conviction ~[under]~ | 0008| |pursuant to| this section, an offender may be sentenced to | 0009| not less than forty-eight hours of community service or a fine | 0010| of three hundred dollars ($300). The offender shall be | 0011| ordered by the court to participate in and complete a | 0012| screening program described in Subsection H of this section | 0013| and to attend a driver rehabilitation program for alcohol or | 0014| drugs, also known as a "DWI school", approved by the traffic | 0015| safety bureau of the state highway and transportation | 0016| department and also may be required to participate in other | 0017| rehabilitative services as the court shall determine to be | 0018| necessary. In addition to those penalties, when an offender | 0019| commits aggravated driving while under the influence of | 0020| intoxicating liquor or drugs, the offender shall be sentenced | 0021| to not less than forty-eight consecutive hours in jail. If an | 0022| offender fails to complete, within a time specified by the | 0023| court, any community service, screening program, treatment | 0024| program or DWI school ordered by the court, the offender shall | 0025| be sentenced to not less than an additional forty-eight | - 5 - 0001| consecutive hours in jail. ~[Any]~ |A| jail sentence imposed | 0002| ~[under]~ |pursuant to| this subsection for failure to | 0003| complete, within a time specified by the court, any community | 0004| service, screening program, treatment program or DWI school | 0005| ordered by the court or for aggravated driving while under the | 0006| influence of intoxicating liquor or drugs shall not be | 0007| suspended, deferred or taken under advisement. On a first | 0008| conviction ~[under]~ |pursuant to| this section, any time | 0009| spent in jail for the offense prior to the conviction for that | 0010| offense shall be credited to any term of imprisonment fixed by | 0011| the court. A deferred sentence ~[under]~ |pursuant to| this | 0012| subsection shall be considered a first conviction for the | 0013| purpose of determining subsequent convictions. | 0014| F. A second or third conviction ~[under]~ | 0015| |pursuant to| this section shall be punished, notwithstanding | 0016| the provisions of Section 31-18-13 NMSA 1978, by imprisonment | 0017| for not more than three hundred sixty-four days or by a fine | 0018| of not more than one thousand dollars ($1,000), or both; | 0019| provided that if the sentence is suspended in whole or in | 0020| part, the period of probation may extend beyond one year but | 0021| shall not exceed five years. Notwithstanding any provision of | 0022| law to the contrary for suspension or deferment of execution | 0023| of a sentence: | 0024| (1) upon a second conviction, each offender | 0025| shall be sentenced to a jail term of not less than seventy-two | - 6 - 0001| consecutive hours, forty-eight hours of community service and | 0002| a fine of five hundred dollars ($500). In addition to those | 0003| penalties, when an offender commits aggravated driving while | 0004| under the influence of intoxicating liquor or drugs, the | 0005| offender shall be sentenced to a jail term of not less than | 0006| ninety-six consecutive hours. If an offender fails to | 0007| complete, within a time specified by the court, any community | 0008| service, screening program or treatment program ordered by the | 0009| court, the offender shall be sentenced to not less than an | 0010| additional seven consecutive days in jail. A penalty imposed | 0011| pursuant to this paragraph shall not be suspended or deferred | 0012| or taken under advisement; and | 0013| (2) upon a third conviction, an offender | 0014| shall be sentenced to a jail term of not less than thirty | 0015| consecutive days and a fine of seven hundred fifty dollars | 0016| ($750). In addition to those penalties, when an offender | 0017| commits aggravated driving while under the influence of | 0018| intoxicating liquor or drugs, the offender shall be sentenced | 0019| to a jail term of not less than sixty consecutive days. If an | 0020| offender fails to complete, within a time specified by the | 0021| court, any screening program or treatment program ordered by | 0022| the court, the offender shall be sentenced to not less than an | 0023| additional sixty consecutive days in jail. A penalty imposed | 0024| pursuant to this paragraph shall not be suspended or deferred | 0025| or taken under advisement. | - 7 - 0001| G. Upon a fourth or subsequent conviction | 0002| ~[under]~ |pursuant to| this section, an offender is guilty of | 0003| a fourth degree felony, as provided in Section 31-18-15 NMSA | 0004| 1978, and shall be sentenced to a ~[jail]~ term |of | 0005| imprisonment| of not less than six months, which shall not be | 0006| suspended or deferred or taken under advisement. | 0007| H. Upon any conviction ~[under]~ |pursuant to| | 0008| this section, an offender shall be required to participate in | 0009| and complete, within a time specified by the court, an alcohol | 0010| or drug abuse screening program and, if necessary, a treatment | 0011| program approved by the court. The penalty imposed pursuant | 0012| to this subsection shall not be suspended, deferred or taken | 0013| under advisement. | 0014| I. In the case of a first, second or third offense | 0015| ~[under]~ |pursuant to| this section, the magistrate court has | 0016| concurrent jurisdiction with district courts to try the | 0017| offender. | 0018| J. A conviction under a municipal or county | 0019| ordinance in New Mexico or a law of any other jurisdiction, | 0020| territory or possession of the United States that is | 0021| equivalent to New Mexico law for driving while under the | 0022| influence of intoxicating liquor or drugs, prescribing | 0023| penalties for driving while under the influence of | 0024| intoxicating liquor or drugs, shall be deemed to be a | 0025| conviction ~[under]~ |pursuant to| this section for purposes | - 8 - 0001| of determining whether a conviction is a second or subsequent | 0002| conviction. | 0003| K. In addition to any other fine or fee ~[which]~ | 0004| |that| may be imposed pursuant to the conviction or other | 0005| disposition of the offense ~[under]~ |pursuant to| this | 0006| section, the court may order the offender to pay the costs of | 0007| any court-ordered screening and treatment programs. | 0008| L. As used in this section: | 0009| (1) "bodily injury" means an injury to a | 0010| person that is not likely to cause death or great bodily harm | 0011| to the person, but does cause painful temporary disfigurement | 0012| or temporary loss or impairment of the functions of ~[any]~ | 0013| |a| member or organ of the person's body; and | 0014| (2) "conviction" means an adjudication of | 0015| guilt and does not include imposition of a sentence." | 0016| Section 3. EFFECTIVE DATE.--The effective date of the | 0017| provisions of this act is July 1, 1998. | 0018| - 9 - |