0001| HOUSE BILL 284
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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| GARY K. KING
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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 CRIMINAL LAW; CLARIFYING THAT A FELONY DWI
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0012| CONVICTION MAY BE USED AS A PRIOR FELONY CONVICTION FOR THE
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0013| PURPOSE OF SENTENCING A HABITUAL OFFENDER; AMENDING SECTIONS
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0014| OF THE NMSA 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977,
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0018| Chapter 216, Section 6, as amended by Laws 1993, Chapter 77,
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0019| Section 9 and also by Laws 1993, Chapter 283, Section 1) is
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0020| amended to read:
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0021| "31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC
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0022| SENTENCE.--
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0023| A. For the purposes of this section, "prior felony
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0024| conviction" means:
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0025| (1) a conviction for a prior felony committed
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0001| [within] in New Mexico whether within the Criminal Code or
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0002| not, including a prior felony DWI conviction pursuant to the
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0003| provisions of Section 66-8-102 NMSA 1978; or
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0004| (2) [any] a prior felony for which the
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0005| person was convicted other than an offense triable by court
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0006| martial if:
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0007| (a) the conviction was rendered by a
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0008| court of another state, the United States, a territory of the
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0009| United States or the commonwealth of Puerto Rico;
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0010| (b) the offense was punishable, at the
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0011| time of conviction, by death or a maximum term of imprisonment
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0012| of more than one year; or
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0013| (c) the offense would have been
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0014| classified as a felony in this state at the time of
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0015| conviction.
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0016| B. [Any] A person convicted of a noncapital
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0017| felony in this state whether within the Criminal Code or the
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0018| Controlled Substances Act or not who has incurred one prior
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0019| felony conviction [which] that was part of a separate
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0020| transaction or occurrence or conditional discharge [under]
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0021| pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a
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0022| habitual offender and his basic sentence shall be increased by
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0023| one year, and the sentence imposed by this subsection shall
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0024| not be suspended or deferred.
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0025| C. [Any] A person convicted of a noncapital
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0001| felony in this state whether within the Criminal Code or the
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0002| Controlled Substances Act or not who has incurred two prior
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0003| felony convictions [which] that were parts of separate
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0004| transactions or occurrences or conditional discharge [under]
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0005| pursuant to Section [31-20-7] 31-20-13 NMSA 1978 is a
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0006| habitual offender and his basic sentence shall be increased by
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0007| four years, and the sentence imposed by this subsection shall
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0008| not be suspended or deferred.
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0009| D. [Any] A person convicted of a noncapital
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0010| felony in this state whether within the Criminal Code or the
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0011| Controlled Substances Act or not who has incurred three or
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0012| more prior felony convictions [which] that were parts of
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0013| separate transactions or occurrences or conditional discharge
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0014| [under] pursuant to Section [31-20-7] 31-20-13 NMSA
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0015| 1978 is a habitual offender and his basic sentence shall be
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0016| increased by eight years, and the sentence imposed by this
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0017| subsection shall not be suspended or deferred."
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0018| Section 2. Section 66-8-102 NMSA 1978 (being Laws 1953,
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0019| Chapter 139, Section 54, as amended by Laws 1997, Chapter 43,
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0020| Section 1 and also by Laws 1997, Chapter 205, Section 1) is
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0021| amended to read:
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0022| "66-8-102. PERSONS UNDER THE INFLUENCE OF INTOXICATING
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0023| LIQUOR OR DRUGS--AGGRAVATED DRIVING WHILE UNDER THE INFLUENCE
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0024| OF INTOXICATING LIQUOR OR DRUGS--PENALTY.--
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0025| A. It is unlawful for [any] a person who is
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0001| under the influence of intoxicating liquor to drive [any]
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0002| a vehicle [within] in this state.
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0003| B. It is unlawful for [any] a person who is
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0004| under the influence of [any] a drug to a degree that
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0005| renders him incapable of safely driving a vehicle to drive
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0006| [any] a vehicle [within] in this state.
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0007| C. It is unlawful for [any] a person who has
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0008| an alcohol concentration of eight one-hundredths or more in
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0009| his blood or breath to drive [any] a vehicle [within]
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0010| in this state.
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0011| D. Aggravated driving while under the influence of
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0012| intoxicating liquor or drugs consists of a person who:
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0013| (1) has an alcohol concentration of sixteen
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0014| one-hundredths or more in his blood or breath while driving
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0015| [any] a vehicle [within] in this state;
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0016| (2) has caused bodily injury to a human being
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0017| as a result of the unlawful operation of a motor vehicle while
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0018| driving under the influence of intoxicating liquor or drugs;
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0019| or
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0020| (3) refused to submit to chemical testing, as
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0021| provided for in the Implied Consent Act, and in the judgment
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0022| of the court, based [upon] on evidence of intoxication
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0023| presented to the court, was under the influence of
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0024| intoxicating liquor or drugs.
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0025| E. Every person under first conviction [under]
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0001| pursuant to this section shall be punished, notwithstanding
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0002| the provisions of Section 31-18-13 NMSA 1978, by imprisonment
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0003| for not more than ninety days or by a fine of not more than
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0004| five hundred dollars ($500), or both; provided that if the
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0005| sentence is suspended in whole or in part or deferred, the
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0006| period of probation may extend beyond ninety days but shall
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0007| not exceed one year. Upon a first conviction [under]
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0008| pursuant to this section, an offender may be sentenced to
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0009| not less than forty-eight hours of community service or a fine
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0010| of three hundred dollars ($300). The offender shall be
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0011| ordered by the court to participate in and complete a
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0012| screening program described in Subsection H of this section
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0013| and to attend a driver rehabilitation program for alcohol or
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0014| drugs, also known as a "DWI school", approved by the traffic
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0015| safety bureau of the state highway and transportation
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0016| department and also may be required to participate in other
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0017| rehabilitative services as the court shall determine to be
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0018| necessary. In addition to those penalties, when an offender
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0019| commits aggravated driving while under the influence of
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0020| intoxicating liquor or drugs, the offender shall be sentenced
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0021| to not less than forty-eight consecutive hours in jail. If an
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0022| offender fails to complete, within a time specified by the
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0023| court, any community service, screening program, treatment
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0024| program or DWI school ordered by the court, the offender shall
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0025| be sentenced to not less than an additional forty-eight
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0001| consecutive hours in jail. [Any] A jail sentence imposed
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0002| [under] pursuant to this subsection for failure to
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0003| complete, within a time specified by the court, any community
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0004| service, screening program, treatment program or DWI school
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0005| ordered by the court or for aggravated driving while under the
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0006| influence of intoxicating liquor or drugs shall not be
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0007| suspended, deferred or taken under advisement. On a first
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0008| conviction [under] pursuant to this section, any time
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0009| spent in jail for the offense prior to the conviction for that
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0010| offense shall be credited to any term of imprisonment fixed by
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0011| the court. A deferred sentence [under] pursuant to this
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0012| subsection shall be considered a first conviction for the
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0013| purpose of determining subsequent convictions.
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0014| F. A second or third conviction [under]
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0015| pursuant to this section shall be punished, notwithstanding
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0016| the provisions of Section 31-18-13 NMSA 1978, by imprisonment
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0017| for not more than three hundred sixty-four days or by a fine
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0018| of not more than one thousand dollars ($1,000), or both;
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0019| provided that if the sentence is suspended in whole or in
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0020| part, the period of probation may extend beyond one year but
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0021| shall not exceed five years. Notwithstanding any provision of
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0022| law to the contrary for suspension or deferment of execution
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0023| of a sentence:
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0024| (1) upon a second conviction, each offender
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0025| shall be sentenced to a jail term of not less than seventy-two
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0001| consecutive hours, forty-eight hours of community service and
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0002| a fine of five hundred dollars ($500). In addition to those
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0003| penalties, when an offender commits aggravated driving while
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0004| under the influence of intoxicating liquor or drugs, the
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0005| offender shall be sentenced to a jail term of not less than
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0006| ninety-six consecutive hours. If an offender fails to
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0007| complete, within a time specified by the court, any community
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0008| service, screening program or treatment program ordered by the
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0009| court, the offender shall be sentenced to not less than an
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0010| additional seven consecutive days in jail. A penalty imposed
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0011| pursuant to this paragraph shall not be suspended or deferred
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0012| or taken under advisement; and
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0013| (2) upon a third conviction, an offender
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0014| shall be sentenced to a jail term of not less than thirty
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0015| consecutive days and a fine of seven hundred fifty dollars
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0016| ($750). In addition to those penalties, when an offender
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0017| commits aggravated driving while under the influence of
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0018| intoxicating liquor or drugs, the offender shall be sentenced
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0019| to a jail term of not less than sixty consecutive days. If an
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0020| offender fails to complete, within a time specified by the
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0021| court, any screening program or treatment program ordered by
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0022| the court, the offender shall be sentenced to not less than an
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0023| additional sixty consecutive days in jail. A penalty imposed
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0024| pursuant to this paragraph shall not be suspended or deferred
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0025| or taken under advisement.
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0001| G. Upon a fourth or subsequent conviction
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0002| [under] pursuant to this section, an offender is guilty of
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0003| a fourth degree felony, as provided in Section 31-18-15 NMSA
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0004| 1978, and shall be sentenced to a [jail] term of
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0005| imprisonment of not less than six months, which shall not be
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0006| suspended or deferred or taken under advisement.
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0007| H. Upon any conviction [under] pursuant to
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0008| this section, an offender shall be required to participate in
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0009| and complete, within a time specified by the court, an alcohol
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0010| or drug abuse screening program and, if necessary, a treatment
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0011| program approved by the court. The penalty imposed pursuant
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0012| to this subsection shall not be suspended, deferred or taken
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0013| under advisement.
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0014| I. In the case of a first, second or third offense
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0015| [under] pursuant to this section, the magistrate court has
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0016| concurrent jurisdiction with district courts to try the
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0017| offender.
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0018| J. A conviction under a municipal or county
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0019| ordinance in New Mexico or a law of any other jurisdiction,
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0020| territory or possession of the United States that is
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0021| equivalent to New Mexico law for driving while under the
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0022| influence of intoxicating liquor or drugs, prescribing
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0023| penalties for driving while under the influence of
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0024| intoxicating liquor or drugs, shall be deemed to be a
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0025| conviction [under] pursuant to this section for purposes
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0001| of determining whether a conviction is a second or subsequent
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0002| conviction.
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0003| K. In addition to any other fine or fee [which]
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0004| that may be imposed pursuant to the conviction or other
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0005| disposition of the offense [under] pursuant to this
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0006| section, the court may order the offender to pay the costs of
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0007| any court-ordered screening and treatment programs.
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0008| L. As used in this section:
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0009| (1) "bodily injury" means an injury to a
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0010| person that is not likely to cause death or great bodily harm
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0011| to the person, but does cause painful temporary disfigurement
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0012| or temporary loss or impairment of the functions of [any]
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0013| a member or organ of the person's body; and
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0014| (2) "conviction" means an adjudication of
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0015| guilt and does not include imposition of a sentence."
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0016| Section 3. EFFECTIVE DATE.--The effective date of the
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0017| provisions of this act is July 1, 1998.
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