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F I S C A L I M P A C T R E P O R T
SPONSOR
Anderson
ORIGINAL DATE
LAST UPDATED
1/31/08
HB 526
SHORT TITLE
DWI As Prior Felony for Sentencing
SB
ANALYST
C. Sanchez
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY08
FY09
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates SB 197
SOURCES OF INFORMATION
LFC Files
Responses Received From
Administrative Office of the Courts (AOC)
Bernalillo County Metropolitan Court (BCMC)
Department of Public Safety (DPS)
SUMMARY
Synopsis of Bill
House Bill 526 allows for those sentenced for a felony D.W.I. conviction to have that conviction
used as a felony when being sentenced as a habitual offender under 31-18-08
SIGNIFICANT ISSUES
Eleven 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
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House Bill 526 – Page
2
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." HB 526 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
According to the AOC, 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
HB 526 gives the courts more discretion when sentencing habitual criminals. Law enforcement
supports attempts to keep habitual offenders “off of the streets" to prohibit them from continuing
with criminal activity, this includes both DWI offenses as well as other criminal activities.
TECHNICAL ISSUES
It would be useful for the bill to state whether it applies to pending prosecutions on its effective
date, July 1, 2008, 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
Status Quo
CS/nt