0001| HOUSE BILL 142
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| R. DAVID PEDERSON
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0005|
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0006|
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0007|
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0008| FOR THE DWI OVERSIGHT TASK FORCE
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0009|
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0010| AN ACT
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0011| RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR
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0012| OR DRUGS; PROVIDING INCREASED CRIMINAL PENALTIES FOR HABITUAL
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0013| DWI FELONY OFFENDERS; AMENDING SECTIONS OF THE NMSA 1978.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977,
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0017| Chapter 216, Section 6, as amended by Laws 1993, Chapter 77,
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0018| Section 9 and also by Laws 1993, Chapter 283, Section 1) is
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0019| amended to read:
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0020| "31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC
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0021| SENTENCE.--
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0022| A. For the purposes of this section, "prior felony
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0023| conviction" means:
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0024| (1) a conviction for a prior felony committed
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0025| [within] in New Mexico whether within the Criminal Code or
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0001| not, but not including a prior felony DWI conviction pursuant
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0002| to the provisions of Section 66-8-102 NMSA 1978; or
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0003| (2) [any] a prior felony for which the
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0004| person was convicted other than an offense triable by court
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0005| martial if:
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0006| (a) the conviction was rendered by a
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0007| court of another state, the United States, a territory of the
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0008| United States or the commonwealth of Puerto Rico;
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0009| (b) the offense was punishable at the
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0010| time of conviction by death or a maximum term of imprisonment
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0011| of more than one year; or
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0012| (c) the offense would have been
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0013| classified as a felony in this state at the time of
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0014| conviction.
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0015| B. [Any] A person convicted of a noncapital
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0016| felony in this state whether within the Criminal Code or the
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0017| Controlled Substances Act or not who has incurred one prior
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0018| felony conviction [which] that was part of a separate
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0019| transaction or occurrence or conditional discharge [under]
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0020| pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a
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0021| habitual offender and his basic sentence shall be increased by
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0022| one year and the sentence imposed by this subsection shall not
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0023| be suspended or deferred.
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0024| C. [Any] A person convicted of a noncapital
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0025| felony in this state whether within the Criminal Code or the
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0001| Controlled Substances Act or not who has incurred two prior
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0002| felony convictions [which] that were parts of separate
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0003| transactions or occurrences or conditional discharge [under]
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0004| pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a
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0005| habitual offender and his basic sentence shall be increased by
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0006| four years, and the sentence imposed by this subsection shall
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0007| not be suspended or deferred.
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0008| D. [Any] A person convicted of a noncapital
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0009| felony in this state whether within the Criminal Code or the
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0010| Controlled Substances Act or not who has incurred three or
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0011| more prior felony convictions [which] that were parts of
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0012| separate transactions or occurrences or conditional discharge
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0013| [under] pursuant to Section [31-20-7] 31-20-13 NMSA
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0014| 1978 is a habitual offender and his basic sentence shall be
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0015| increased by eight years and the sentence imposed by this
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0016| subsection shall not be suspended or deferred."
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0017| Section 2. Section 66-8-102 NMSA 1978 (being Laws 1953,
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0018| Chapter 139, Section 54, as amended by Laws 1997, Chapter 43,
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0019| Section 1 and also by Laws 1997, Chapter 205, Section 1) is
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0020| amended to read:
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0021| "66-8-102. PERSONS UNDER THE INFLUENCE OF INTOXICATING
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0022| LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE
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0023| OF INTOXICATING LIQUOR OR DRUGS--PENALTY.--
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0024| A. It is unlawful for [any] a person who is
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0025| under the influence of intoxicating liquor to drive [any]
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0001| a vehicle [within] in this state.
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0002| B. It is unlawful for [any] a person who is
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0003| under the influence of [any] a drug to a degree that
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0004| renders him incapable of safely driving a vehicle to drive
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0005| [any] a vehicle [within] in this state.
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0006| C. It is unlawful for [any] a person who has
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0007| an alcohol concentration of eight one-hundredths or more in
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0008| his blood or breath to drive [any] a vehicle [within]
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0009| in this state.
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0010| D. Aggravated driving while under the influence of
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0011| intoxicating liquor or drugs consists of a person who:
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0012| (1) has an alcohol concentration of sixteen
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0013| one-hundredths or more in his blood or breath while driving
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0014| [any] a vehicle [within] in this state;
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0015| (2) has caused bodily injury to a human being
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0016| as a result of the unlawful operation of a motor vehicle while
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0017| driving under the influence of intoxicating liquor or drugs;
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0018| or
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0019| (3) refused to submit to chemical testing, as
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0020| provided for in the Implied Consent Act, and in the judgment
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0021| of the court, based [upon] on evidence of intoxication
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0022| presented to the court, was under the influence of
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0023| intoxicating liquor or drugs.
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0024| E. Every person under first conviction [under]
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0025| pursuant to this section shall be punished, notwithstanding
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0001| the provisions of Section 31-18-13 NMSA 1978, by imprisonment
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0002| for not more than ninety days or by a fine of not more than
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0003| five hundred dollars ($500) or both; provided that if the
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0004| sentence is suspended in whole or in part or deferred, the
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0005| period of probation may extend beyond ninety days but shall
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0006| not exceed one year. Upon a first conviction [under]
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0007| pursuant to this section, an offender may be sentenced to
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0008| not less than forty-eight hours of community service or a fine
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0009| of three hundred dollars ($300). The offender shall be
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0010| ordered by the court to participate in and complete a
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0011| screening program described in Subsection [H] K of this
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0012| section and to attend a driver rehabilitation program for
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0013| alcohol or drugs, also known as a "DWI school", approved by
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0014| the traffic safety bureau of the state highway and
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0015| transportation department and also may be required to
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0016| participate in other rehabilitative services as the court
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0017| shall determine to be necessary. In addition to those
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0018| penalties, when an offender commits aggravated driving while
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0019| under the influence of intoxicating liquor or drugs, the
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0020| offender shall be sentenced to not less than forty-eight
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0021| consecutive hours in jail. If an offender fails to complete,
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0022| within a time specified by the court, any community service,
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0023| screening program, treatment program or DWI school ordered by
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0024| the court, the offender shall be sentenced to not less than an
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0025| additional forty-eight consecutive hours in jail. [Any] A
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0001| jail sentence imposed [under] pursuant to this subsection
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0002| for failure to complete, within a time specified by the court,
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0003| any community service, screening program, treatment program or
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0004| DWI school ordered by the court or for aggravated driving
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0005| while under the influence of intoxicating liquor or drugs
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0006| shall not be suspended, deferred or taken under advisement.
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0007| On a first conviction [under] pursuant to this section,
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0008| any time spent in jail for the offense prior to the conviction
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0009| for that offense shall be credited to any term of imprisonment
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0010| fixed by the court. A deferred sentence [under] pursuant
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0011| to this subsection shall be considered a first conviction for
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0012| the purpose of determining subsequent convictions.
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0013| F. A second or third conviction [under]
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0014| pursuant to this section shall be punished, notwithstanding
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0015| the provisions of Section 31-18-13 NMSA 1978, by imprisonment
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0016| for not more than three hundred sixty-four days or by a fine
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0017| of not more than one thousand dollars ($1,000) or both;
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0018| provided that if the sentence is suspended in whole or in
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0019| part, the period of probation may extend beyond one year but
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0020| shall not exceed five years. Notwithstanding any provision of
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0021| law to the contrary for suspension or deferment of execution
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0022| of a sentence:
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0023| (1) upon a second conviction, each offender
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0024| shall be sentenced to a jail term of not less than seventy-two
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0025| consecutive hours, forty-eight hours of community service and
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0001| a fine of five hundred dollars ($500). In addition to those
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0002| penalties, when an offender commits aggravated driving while
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0003| under the influence of intoxicating liquor or drugs, the
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0004| offender shall be sentenced to a jail term of not less than
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0005| ninety-six consecutive hours. If an offender fails to
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0006| complete, within a time specified by the court, any community
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0007| service, screening program or treatment program ordered by the
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0008| court, the offender shall be sentenced to not less than an
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0009| additional seven consecutive days in jail. A penalty imposed
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0010| pursuant to this paragraph shall not be suspended or deferred
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0011| or taken under advisement; and
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0012| (2) upon a third conviction, an offender
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0013| shall be sentenced to a jail term of not less than thirty
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0014| consecutive days and a fine of seven hundred fifty dollars
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0015| ($750). In addition to those penalties, when an offender
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0016| commits aggravated driving while under the influence of
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0017| intoxicating liquor or drugs, the offender shall be sentenced
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0018| to a jail term of not less than sixty consecutive days. If an
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0019| offender fails to complete, within a time specified by the
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0020| court, any screening program or treatment program ordered by
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0021| the court, the offender shall be sentenced to not less than an
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0022| additional sixty consecutive days in jail. A penalty imposed
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0023| pursuant to this paragraph shall not be suspended or deferred
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0024| or taken under advisement.
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0025| G. Upon a fourth [or subsequent] conviction
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0001| [under] pursuant to this section, an offender is guilty of
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0002| a fourth degree felony [as provided in] and,
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0003| notwithstanding the provisions of Section 31-18-15 NMSA 1978,
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0004| [and] shall be sentenced to a [jail] term of
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0005| imprisonment of [not less than] eighteen months, six
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0006| months of which shall not be suspended or deferred or taken
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0007| under advisement.
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0008| H. Upon a fifth conviction pursuant to this
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0009| section, an offender is guilty of a fourth degree felony and,
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0010| notwithstanding the provisions of Section 31-18-15 NMSA 1978,
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0011| shall be sentenced to a term of imprisonment of two years, one
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0012| year of which shall not be suspended or deferred or taken
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0013| under advisement.
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0014| I. Upon a sixth conviction pursuant to this
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0015| section, an offender is guilty of a fourth degree felony and,
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0016| notwithstanding the provisions of Section 31-18-15 NMSA 1978,
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0017| shall be sentenced to a term of imprisonment of thirty months,
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0018| eighteen months of which shall not be suspended or deferred or
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0019| taken under advisement.
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0020| J. Upon a seventh or subsequent conviction
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0021| pursuant to this section, an offender is guilty of a third
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0022| degree felony and, notwithstanding the provisions of Section
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0023| 31-18-15 NMSA 1978, shall be sentenced to a term of
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0024| imprisonment of three years, two years of which shall not be
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0025| suspended or deferred or taken under advisement.
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0001| [H.] K. Upon any conviction [under]
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0002| pursuant to this section, an offender shall be required to
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0003| participate in and complete, within a time specified by the
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0004| court, an alcohol or drug abuse screening program and, if
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0005| necessary, a treatment program approved by the court. The
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0006| penalty imposed pursuant to this subsection shall not be
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0007| suspended, deferred or taken under advisement.
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0008| [I.] L. In the case of a first, second or
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0009| third offense [under] pursuant to this section, the
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0010| magistrate court has concurrent jurisdiction with district
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0011| courts to try the offender.
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0012| [J.] M. A conviction under a municipal or
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0013| county ordinance in New Mexico or a law of any other
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0014| jurisdiction, territory or possession of the United States
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0015| that is equivalent to New Mexico law for driving while under
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0016| the influence of intoxicating liquor or drugs, prescribing
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0017| penalties for driving while under the influence of
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0018| intoxicating liquor or drugs shall be deemed to be a
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0019| conviction [under] pursuant to this section for purposes
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0020| of determining whether a conviction is a second or subsequent
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0021| conviction.
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0022| [K.] N. In addition to any other fine or fee
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0023| [which] that may be imposed pursuant to the conviction or
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0024| other disposition of the offense [under] pursuant to this
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0025| section, the court may order the offender to pay the costs of
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0001| [any] court-ordered screening and treatment programs.
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0002| [L.] O. As used in this section:
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0003| (1) "bodily injury" means an injury to a
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0004| person that is not likely to cause death or great bodily harm
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0005| to the person, but does cause painful temporary disfigurement
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0006| or temporary loss or impairment of the functions of [any]
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0007| a member or organ of the person's body; and
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0008| (2) "conviction" means an adjudication of
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0009| guilt and does not include imposition of a sentence."
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0010| Section 3. EFFECTIVE DATE.--The effective date of the
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0011| provisions of this act is July 1, 1998.
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