SECTION I: GENERAL INFORMATION {Indicate if analysis is on an original bill, amendment, substitute or a correction of a previous bill}

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1 LFC Requester: AGENCY BILL ANALYSIS 2015 REGULAR SESSION WITHIN 24 HOURS OF BILL POSTING, ANALYSIS TO: and {Include the bill no. in the subject line, e.g., HB2, and only attach one bill analysis and related documentation per message} SECTION I: GENERAL INFORMATION {Indicate if analysis is on an original bill, amendment, substitute or a correction of a previous bill} Check all that apply: Date Jan. 20, 2015 Original X Amendment Bill No: HB131 Correction Substitute Sponsor: Tim Lewis Agency Code: 264 Short DWI Sentencing and Person Writing Gary Cade Title: Interlocks Phone: SECTION II: FISCAL IMPACT APPROPRIATION (dollars in thousands) FY15 Appropriation FY16 Recurring or Nonrecurring REVENUE (dollars in thousands) Estimated Revenue FY15 FY16 FY17 Recurring or Nonrecurring

2 ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands) FY15 FY16 FY17 3 Year Total Cost Recurring or Nonrecurring Total Duplicates/Conflicts with/companion to/relates to: Duplicates/Relates to Appropriation in the General Appropriation Act SECTION III: NARRATIVE BILL SUMMARY Synopsis: HB 131 would increase the time that an adult, or delinquent child, convicted of driving while intoxicated ( DWI ) has their driver s license revoked, and had to drive with an ignition interlock device, depending upon what the concentration of alcohol in their blood or breath ( BAC ) was, with threshold percentage levels of less than.16,.16 to less than.24, and.24 or above. The bill would add a new subsection that anyone who refuses a breath or blood alcohol test will be presumed to have a.16 BAC for purpose of the ignition interlock requirements. It further provides that if someone did not obtain an ignition interlock device and had not obtained an ignition interlock driver s license, they would be required to maintain sobriety and to participate in a court-approved sobriety monitoring program for the same period as the as the ignition interlock requirement Their sobriety would have to be monitored daily for at least the first 12 months. HB 131 also states that anyone convicted of their first DWI, who gets the sentence suspended in whole or in part, or deferred, can be placed on probation for up to four years. The current law limits the maximum probationary term for a first offense DWI to one year. FISCAL IMPLICATIONS HB 131 would increase the period of time that someone s driver s license could be revoked and that they would have to use an ignition interlock or be in a court-approved sobriety program, and extend the time they could be on probation for a first DWI conviction so it is very likely that more cases will be litigated at trial and on appeal which will require more financial and personnel resources for the courts, district attorneys offices and defenders. The increased probationary period for a first offense DWI can extend supervision four times beyond what is the current law. The requirement for a sobriety monitoring program to include daily monitoring, for at least 12 months, of persons who do not obtain an ignition interlock will have a fiscal impact on any agency with that responsibility, whether it is the county or the courts. See, Sec (A), and Sec. 34-8A-6, NMSA. The bill states that the costs should be borne by the offender unless they are indigent. Many DWI offenders are indigent or become indigent after their conviction. In addition to the costs required to operate or pay for a sobriety monitoring program, additional costs for the courts and probation officers who have to deal with persons who do not maintain sobriety and face at least 48 hours incarceration for each failure to stay sober or

3 comply with the monitoring program can reasonably be expected. Since the increased monitoring is likely to result in detecting more persons failing to maintain sobriety for the prescribed period and the minimum punishment specified for that is at least 48 hours incarceration, jails will also have additional expenses. SIGNIFICANT ISSUES HB 131 links the concentration of alcohol in their blood or breath to the period of time an adult, or a delinquent child, would have their driver s license revoked and the period of time they would be required to have an ignition interlock driver s license and be limited to only driving vehicles equipped with an interlock. The bill specifies BAC percentage levels of less than.16,.16 to less than.24, and.24 and above. For a first DWI conviction: license revocation periods and required interlock periods for both adults and children, are one year for a BAC of less than.16, two years for a BAC of.16 to less than.24, and four years for a BAC of.24 or above. For a second DWI conviction: the periods are doubled to two years and four years for a BAC of less than.16 and.16 to less than.24. If the driver had a BAC of.24 or above, then their revocation and interlock required periods are for life for their second DWI conviction. For a third DWI conviction: license revocation periods and required interlock periods are three years if their BAC was less than.16. If their BAC was.16 or above, the revocation and required interlock periods would be increased to life. For a fourth DWI conviction: license revocation and interlock requirements would be lifetime, regardless of what their BAC levels were. The BAC level provided in HB 131 of less than.16,.16 to less than.24 and.24 or above compare to the per se levels of.08 now provided for conviction of regular DWI and.16 for aggravated DWI. See, Sec (C)(1) and Sec (D)(1), NMSA. Significantly, the bill has no provisions regarding persons convicted of DWI who were under the influence of drugs. See, Sec (B), NMSA. The current license revocation and required ignition interlock periods are one year for a first DWI conviction, two years for a second DWI conviction and three years for a third DWI conviction, no matter what BAC was the basis for conviction. If HB 131 is passed, depending upon the offender s BAC, those periods could range from one to four years for a first DWI conviction, two years to life for a second DWI conviction, and three years to life for a third DWI conviction. A fourth DWI conviction currently provides for lifetime bans so there would be no change in the revocation and interlock requirements. Significantly HB 131 states that someone who refuses a blood or breath test to determine the alcohol concentration in their blood will be presumed to have had a.16 BAC for purposes of establishing an ignition interlock requirement period. Persons who have a lifetime license revocation and lifetime ignition interlock requirement can now apply to district court five years after the date of their fourth conviction, and every five years thereafter, to have the interlock requirement removed and restoration of their license. The petition for relief would be changed to their last conviction, and every five years thereafter, under HB 131 to address persons who may have more than four DWI convictions.

4 HB 131 does not indicate whether the blood or breath containing alcohol at the specified levels must have been ascertained within a specified time period of their driving a motor vehicle and if the alcohol was consumed before or while driving the vehicle, both of which are required elements for proving a DWI. Cf., Sec C)(1) and (2) and Sec (D)(1), NMSA (driving a vehicle in this state with an alcohol concentration of eight/sixteenth one hundredths or more in the person s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.) Failure to clarify that could lead to litigation. See, e.g., State v. Baldwin, 2001 NMCA 063 and State v. Day, 2008 NMSC 007. The bill also does not indicate who will determine the alcohol concentrations. Presumably it is meant to adopt the facts regarding the DWI offender s BAC determined at trial, but unless there are special findings made by the judge or jury deciding the DWI case that may not be determined. Persons convicted of DWI may challenge any determination not made by the trier of facts. Cf., Apprendi v. New Jersey, 530 U.S. 466 (2000). (Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.) The bill s provisions for potentially much longer required interlocks or enrollment in a courtapproved sobriety monitoring program with mandatory daily monitoring for at least 12 months, will almost certainly be more expensive than current programs. The bill would pass the costs of the sobriety monitoring program on to the offenders unless they are determined to be indigent by the court. In reality, most persons with a DWI, and especially those with multiple DWI s, are indigent, or become so after their DWI conviction(s). The agency that will bear those costs will have a significant fiscal burden. See, Sec and 34-8A-6, NMSA. The increased monitoring is very likely to detect more persons who do not maintain their sobriety and so there will be more court hearings and more persons being incarcerated for at least 48 hours, if not longer, for violations of the sobriety program. Increasing the probationary period from one to four years for someone convicted of a first offense DWI is also likely to impact the courts and probation officers. ERFORMANCE IMPLICATIONS ADMINISTRATIVE IMPLICATIONS CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP TECHNICAL ISSUES OTHER SUBSTANTIVE ISSUES ALTERNATIVES WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL Status quo. AMENDMENTS

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