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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

1/21/08

HB

SHORT TITLE

DWI As Prior Felony for Sentencing

SB

197

ANALYST

C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Department of Public Safety (DPS)

SUMMARY

Synopsis of Bill

Senate Bill 197 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 sen-

tencing 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 sen-

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

prerogative of this Court." SB 197 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.

Senate Bill 197 – Page

2

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

SB 197 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).

CS/mt