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SPONSOR: |
Park |
DATE TYPED: |
01/30 |
HB |
40 |
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|
SHORT TITLE: |
Increase DWI Penalties |
SB |
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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 |
|
|
|
|
|
|
$0.1 Significant |
Recurring |
General
Fund |
|
|
|
|
See
Narrative |
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to HB 117, HB 139, HB
189, SB 16, SB, SB93 and SB 99
Responses
Received From
Public
Defender Department (PDD)
State
Highway and Transportation Department (SHTD)
Administrative
Office of the District Attorneys (AODA)
Administrative
Office of the Courts (AOC)
Corrections
Department (CD)
Attorney
General (AG)
SUMMARY
Synopsis
of Bill
House Bill 40 amends
Section 66-8-102 NMSA 1978 to increase the criminal penalty for a third DWI
conviction “within three years,” raising the offense to a fourth degree felony
with a six month mandatory jail term.
The bill also gives the district court exclusive jurisdiction in cases
where a person is charged with a third DWI offense within three years. No other change in penalties
for DWI convictions is proposed.
Significant
Issues
The bill provides the same criminal penalty and minimum sentencing requirement for a third DWI conviction “within three years” currently provided for fourth and subsequent convictions.
The Administrative Office of the District
Attorneys (AODA) reports that because the trial and conviction of any offender
may occur months and perhaps years after the commission of an offense, making
an increase in penalty dependent upon conviction provides an incentive to offenders
to delay the court process in order to escape felony conviction. (SEE TECHNICAL
ISSUES)
FISCAL IMPLICATIONS
AODA reports that
Magistrate or Metropolitan Courts may see a slight decrease in the number of
cases filed for prosecution, while District Courts will likely experience a
slight increase in caseload. It will
probably be necessary to shift resources within the courts’, district
attorney’s and public defender’s offices in order to accommodate a change in
the way cases are processed. Because
felony cases are inherently more expensive than misdemeanors, the above will
all need additional resources to effectively dispose of these cases.
AOC notes that
increased penalties for some third DWI offenses have the potential to increase
the number of jury trials, therefore requiring increased resources for courts,
district attorneys and public defenders.
Corrections Department (CD) notes that under
current law, a third DWI offense is a misdemeanor with a maximum jail or prison
sentence of one year, of which 60 consecutive days in mandatory and that this
bill makes a third DWI conviction within a three year time period a felony
offense with a maximum prison sentence of 18 months, of which at least a 6
month jail term is mandatory. CD
estimates the bill will result in an annual increase of between 50 and 60
prison commitments and a corresponding yearly increase in probation and parole
caseloads.
CD also predicts a
small increase in revenue from the larger fines imposed for felonies that are
classified as misdemeanors under current law and in additional probation and
parole supervision fees.
Attorney General (AG)
notes that any felony conviction is subject to a direct appeal to the New
Mexico Court of Appeals. The AG will
likely experience an increase in caseload due to the increase in DWI cases
classified as felonies.
ADMINISTRATIVE IMPLICATIONS
AODA reports that because cases filed in
district court require some pleadings not normally required in magistrate
court, there will be an increase in paperwork for all relevant agencies.
CD reports that the administrative burden on
prison, probation and parole personnel, and support staff will increase
significantly due to increases in caseload.
CONFLICT, DUPLICATION, COMPANIONSHIP,
RELATIONSHIP
Relates to HB 117, HB 139, HB 189, SB 16, SB,
SB93 and SB 99. No conflicting language.
TECHNICAL ISSUES
AG reports an
apparent conflict in the language of the bill.
Section F(2) states that a third conviction shall result in the
imposition of a jail term of not less than thirty consecutive days; however, in
Section G, a third conviction “within three years” is classified as a fourth
degree felony and a jail term of not less than six months shall be
imposed. The language is ambiguous as to
what triggers the beginning of the three year period. AG notes that cases dealing with the sequence
of offenses and convictions include State v. Hernandez, 2001-NMCA-057,
130 N.M. 698, 30 P.3d 387; State v. Linam, 93 N.M. 307, 600 P.2d 253
(1979), and Koonsman v. State, 116 N.M. 112, 860 P.2d 754 (1993).
AODA notes that
using criminal conviction dates to determine the three year period (and therefore
whether or not the case is a felony) acts as a disincentive to speedy
resolution of DWI cases (SEE SIGNIFICANT ISSUES). AODA recommends using offense dates in place
of conviction dates in order to mark the beginning and ending of the three year
period, a practice which would focus on offender behavior rather than on the
mechanics of case resolution in court.
OTHER SUBSTANTIVE ISSUES
AODA notes that a significant number of cases
will continue to lack adequate and timely proof of prior convictions, meaning
that they will not qualify as felony cases under this legislation, despite all
indications from other non-qualifying records indicating a high number of prior
convictions.
On page 5, line 16, what does “within three
years” mean?