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 Feb. 6, 2015 Original X Amendment Prepared: Bill No: HB 355 Correction Substitute Sponsor: Rod Montoya Agency Code: 264 Short Increase Penalties for DWI s Person Writing Gary Cade Title: GGarfsdfs Anal Phone: cadeabq@gmail.com ysis: : 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: HB 359 Duplicates/Relates to Appropriation in the General Appropriation Act SECTION III: NARRATIVE BILL SUMMARY Synopsis: HB 355 would significantly increase the penalties for driving while intoxicated ( DWI ) and homicide or great bodily harm by vehicle. Mandatory sentences would be imposed for misdemeanor DWI convictions, the felony threshold for DWI would be lowered, to a third conviction, and as the number of subsequent DWI convictions increased, they would be designated as third and second degree felonies and mandatory minimum sentences would also increase with each subsequent felony DWI conviction. The subsection on aggravated DWI would be deleted. Many DWIs are aggravated because the driver refuses to submit to chemical testing. If there is no longer a consequence for refusing chemical testing, it is very reasonable to believe most multiple offenders will refuse. If more drivers refuse, naturally more trials will result. Practically, drivers who refuse to submit to sobriety tests and chemical testing are more likely to go to trial and more likely to avoid a conviction. A person convicted of homicide or great bodily harm by vehicle while under the influence of intoxicating liquor or any drug would be guilty of a second degree felony and subject to the sentences provided in the Criminal Sentencing Act ( CSA ). The basic sentence for a second degree felony is nine years imprisonment but if death of a human being resulted, the basic sentence is fifteen years imprisonment. The maximum penalties for a first DWI conviction penalty would not be changed, but the bill would require convicted offenders to be sentenced to at least thirty days in a treatment facility, or a detention facility if a treatment facility is not available. Any pre-sentence confinement would be credited to any imprisonment set by the court. Failure to timely complete a screening program, treatment program or DWI school ordered by the court, or failure to comply with any other condition of programs would result in an additional mandatory sentence of at least seven days in jail. The possibility of also imposing a fine of $ would be unchanged. The maximum penalties for a second conviction would also not be changed but the bill would require someone convicted of their second DWI to be sentenced to at least ninety days in a detention facility and a fine of five hundred dollars. HB 355 provides that anyone convicted of a third DWI conviction would be guilty of a fourth degree felony and subject to imprisonment for eighteen months, three hundred sixty-four days

3 The bill also provides that a person convicted of their fourth DWI would be guilty of a third degree felony and shall be sentenced to a term of imprisonment of three years, two years The bill further provides that a person convicted of their fifth DWI would be guilty of a second degree felony and shall be sentenced to a term of imprisonment of nine years, five years The bill also provides that a person convicted of their sixth or subsequent DWI would also be guilty of a second degree felony, and shall be sentenced to a term of imprisonment of nine years, plus an additional year for each previous conviction pursuant to this section and seven years HB 355 would also change the required periods for an ignition interlock. An interlock would still be required for one year for a first DWI conviction but the period would increase to five years for a second DWI conviction, to ten years for a third conviction, and, the remainder of the offender s life for a third [?] or subsequent conviction. FISCAL IMPLICATIONS Whenever penalties are increased it is inevitable that more cases are resolved by litigation instead of by pleas because enhanced penalties and certainty they will be imposed mean there is less incentive to plead guilty. If HB 355 is adopted, it would likely result in more jury trials and more appeals and the courts, district attorneys and defenders workloads will all be increased. This is more likely than ever since the proposed penalties are significant increases over the current law and most of them would require someone convicted of DWI be incarcerated. Because every DWI conviction would have a mandatory incarceration period under the bill the population of jails and prisons would almost certainly increase. SIGNIFICANT ISSUES HB 355 would significantly increase the potential penalties for vehicular homicide and great bodily injury if someone was under the influence of intoxicating liquor or drugs, and it would significantly increase the punishment for DWI, including mandatory sentences for every level of offenses from a first conviction through a sixth or subsequent conviction. The only persons now required to be incarcerated after being convicted of a first offense DWI are persons convicted of aggravated DWI : someone who also caused bodily injury (that is not serious); refused to submit to requested chemical testing; or, whose blood or breath alcohol concentration was at least sixteen hundredths. Even with a conviction for aggravated DWI the only mandatory incarceration period is 48 consecutive hours in jail. See, Sect (E, NMSA. HB 355 would require anyone convicted of a regular first offense DWI to be sentenced to not less than 30 days in a treatment facility or a detention center if a treatment facility is not available. There is no information in the bill regarding treatment facility, so it is unknown what would be required components of the treatment, if treatment would have to be as an in-patient, where it would be provided and who would be required to pay for it. It is unclear if someone could not be immediately remanded after conviction into a treatment facility would then have to go to a detention center, or if there could be a waiting period until they were accepted into treatment. Any time someone can receive a different sentence for the same crime, a treatment facility or a detention center if a treatment

4 facility is not available, then application of the law may be challenged on equal protection grounds. See, Amendment XIV of the U.S. Constitution and Art. II, Sect. 18 of the N.M. Constitution. Punishment for a second DWI conviction would be increased from the current mandatory minimums of 96 consecutive hours in jail and 48 hours of community service to a minimum of 90 days in jail. Community service requirements would be abolished as a punishment for DWI so the communities which utilize persons convicted of misdemeanor DWI s to perform those tasks would have to find a different source of labor. Both first and second offense DWI s would be misdemeanors with concurrent jurisdiction in magistrate, metropolitan and district courts. In every other county besides Bernalillo, where DWI trials are done on record, anyone convicted of a DWI in magistrate court would be entitled to a trial de novo in district court. With the significantly increased penalties it is likely that those de novo trials would increase. It is also likely that the on-record appeals in Bernalillo county would also increase. A third offense DWI conviction would be a felony under HB 355, instead of a fourth conviction required before a DWI conviction would be classified as a felony under existing law. In addition to the other issues that come with a felony conviction, the mandatory minimum sentence for a third conviction would be increased from at least 364 days in jail from the 30 consecutive days in jail and 96 hours of community service required under existing law. A fourth offense DWI conviction would be changed from the current fourth degree felony to a third degree felony, and the sentence would be increased from 18 months with a minimum period of incarceration of six months, to a sentence of three years with a mandatory minimum period of incarceration of two years. A fifth offense DWI would be changed from a third degree felony to a second degree felony and the sentencing periods would be increased to nine years with a minimum incarceration period of five years, from two years with one year of mandatory incarceration now required. A sixth offense DWI would also be changed from the current third degree felony to a second degree felony. The sentence for a sixth offense DWI would be increased to nine years, plus an additional year for each previous DWI conviction, with a mandatory minimum period of incarceration of seven years. That would also be the same punishment for any subsequent conviction. Currently a sixth offense DWI is punishable by a sentence of 30 months with a minimum term of incarceration of 18 months. Under current law, a seventh or subsequent DWI conviction is a third degree felony with a sentence of three years, two years of which are mandatory. HB 355 would also substantially increase the potential punishment for vehicular homicide or great bodily injury for someone convicted who was under the influence of intoxicating liquor or drugs. They would be classified as second degree felonies, and punishable by the provisions of the CSA. That means someone convicted of vehicular homicide who was impaired by alcohol or drugs would face a basic term of imprisonment of 15 years plus a potential fine of $12, If they were convicted of great bodily injury by vehicle while impaired by alcohol or drugs the presumptive sentence would be nine years imprisonment and a potential fine of $10, See, Sect (A)(4) and (5), NMSA. However, the incarceration periods set forth in the CSA may be deferred or suspended in whole or in part. See, Sects and , NMSA. Currently vehicular homicide and great bodily injury are classified as third degree felonies with a basic sentence of six years if death of a human being resulted, or three years if it did not. Both

5 also carry a potential fine of $5,000.00, and the sentences can be suspended or deferred. There would be no change in the law for a vehicular homicide or great bodily injury committed by a person who was driving recklessly or evading a peace officer. It seems an anomaly that someone convicted of DWI would have to be incarcerated for what could be a very lengthy period, 30 days to seven years depending upon whether the DWI was their first or up to sixth or subsequent but someone convicted of killing or very seriously injuring someone while driving under the influence of intoxicating liquor or drugs, could receive a suspended or deferred sentence. HB 355 would also amend the Ignition Interlock Act and increase, for second and subsequent DWI convictions, the time periods an interlock would be required. The period of one year for a first offense would be unchanged but it would increase from two years to five years for a second conviction. As drafted, the bill states an interlock would be required for ten years for a third conviction, up from the three years required by the current law. It also states an interlock would be required for, the remainder of the offender s life for a third or subsequent conviction. (Emphasis added.) That is the period now specified for a fourth or subsequent conviction. As noted above, any time the penalties increase the number of cases litigated, instead of being resolved by pleas, goes up. That typically means more motion hearings in addition to more trials. Whenever more cases are tried than pled that also enables more people to pursue an appeal if they are found guilty. Mandatory minimum sentences will almost certainly result in more people being incarcerated and for longer periods than what happens under current law. PERFORMANCE 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