Contents

Preface

1. DWI Offenses and Elements

2. Initial Stop, Field Sobriety Testing, and Arrest

3. Implied Consent and Breath and Blood Testing

4. Sentencing

5. Other Alcohol-Related Offenses

Appendices

4.1    Overview

Sentencing for a DWI offense is governed by the applicable statute or ordinance.  While the law specifies the penalties that must (mandatory) or may (within the court’s discretion) be imposed, other factors come into play, such as the degree of the conviction (first, second, etc.) and the court’s jurisdiction.  Finally, court costs and fees also must be included, as appropriate. 

Note that state law imposes significant limitations on a defendant’s option to plead guilty to other charges to avoid a DWI conviction.  Under §66-8-102.1, when a defendant is charged with violating §66-8-102 (the DWI statute) and the defendant’s breath or blood test results are .08 or higher (or .04 or higher when driving a commercial vehicle), any plea entered in satisfaction of the charges must include at least a guilty plea to one of the subsections of §66-8-102.  In other words, in the situations previously outlined, a plea agreement must include the driver entering a plea to some type of DWI offense.  The defendant cannot plead guilty to another charge, such as reckless driving, in order to satisfy the DWI charge.

4.2 Degree of Conviction

The state DWI statute, §66-8-102, sets forth increasingly severe penalties based on the degree of the conviction, from a first conviction to a sixth or subsequent conviction.  The term “conviction" means “an adjudication of guilt and does not include imposition of a sentence.”  §66-8-102(T)(3).  For purposes of determining a second or subsequent conviction, this includes convictions under a municipal or county DWI ordinance or a DWI law in any other jurisdiction, including other states and tribes, if the other law is equivalent to New Mexico's DWI law.  §66-8-102(Q).  The adjudication of guilt may be based on a guilty plea, a no contest plea, or a guilty verdict after a trial.  Any of these outcomes count as a conviction, regardless of whether a sentence was imposed, suspended or deferred.  Also, a conviction under any of the subsections (A) through (D) of §66-8-102 counts as a prior conviction for any subsequent conviction under §66-8-102, even if the later conviction is under a different subsection. 

When a person is convicted of DWI, the trial judge is required to inquire into the past driving record of the person before imposing a sentence.  §66-8-110(G).

4.3 The Impact of Prior Legal Representation on Sentencing for Subsequent DWI

The U.S. Constitution places an important limit on the use of prior convictions to increase the penalty for a current conviction.  If a defendant was previously convicted of DWI and sentenced to jail, that conviction can be used to increase the sentence in a new DWI case only if the defendant was either represented by an attorney or validly waived the right to legal representation.  Under the Sixth Amendment, a court cannot deprive a person of liberty (i.e. impose a jail sentence) unless the person was represented by counsel or validly waived the right to assistance of counsel.  Argersinger v. Hamlin, 407 U.S. 25 (1972).  This constitutional guarantee applies even if a sentence of imprisonment is suspended, for “the sentence itself constitutes the deprivation of liberty necessitating a right to counsel.”  State v. Gonzales, 1997-NMSC-050, ¶ 12.  See also Alabama v. Shelton, 535 U.S. 654 (2002).  The prosecution has the burden of showing the validity of a prior conviction. 

To be valid, a waiver of the right to counsel must be knowing, intelligent and voluntary.  State v. Gonzales, 1997-NMSC-050.  See Criminal Forms 9-401, 9-401A (Waiver of Counsel).  At a minimum, a written and signed waiver of counsel, witnessed and countersigned by a judge, is prima facie evidence of a valid waiver.  Gonzales at ¶ 17.

There is no right to counsel when there is no sentence of imprisonment.  Scott v. Illinois, 440 U.S. 25 (1972).  A prior uncounseled misdemeanor DWI conviction not resulting in a sentence of imprisonment can be used to enhance a subsequent misdemeanor DWI conviction, State v. Woodruff, 1997 NMSC-061, or a subsequent felony DWI conviction.  State v. Hosteen, 1997-NMSC-063; State v. Aragon, 1997-NMSC-062.  If a prior DWI conviction was appealed, the sentence for that prior DWI can be shown, for example, by the prosecution providing the court with a copy of a legal document filed with the appellate court which outlines the facts and states that there was no sentence of incarceration.  Hosteen, at ¶ 7.

4.4    DWI Sentences

See the DWI penalty chart in Appendix B.1 (Tab 7) for an overview of criminal and administrative consequences of DWI convictions.  See also the DWI Sentencing Calculator on the Judicial Education Center web site, http://jec.unm.edu, for sentencing ranges for first, second and third DWI convictions.

Magistrate courts have concurrent jurisdiction with district courts to try defendants for first, second and third DWI offenses under §66-8-102.  §66-8-102(P).  Municipal DWI offenses are governed by city ordinance, which cannot specify an unlawful alcohol concentration level that is different than the alcohol concentration levels set forth in §66-8-102(C) and (D).  §66-8-102.2.  Municipal courts can try defendants for first, second and third DWI offenses under a local ordinance.  Fourth and subsequent DWI offenses, the felony class of DWI, must be prosecuted under state law and only in district court.

4.4.1 First Conviction

A “first conviction” for DWI means:

• The defendant does not have a prior DWI conviction.

or

• The defendant has a prior DWI conviction, but:

• The conviction resulted in a sentence of imprisonment; and

• The defendant was not represented by counsel and did not execute a valid waiver of counsel.

Mandatory.  Under §66-8-102(E), the sentence for a first conviction for DWI must include the following, none of which may be suspended, deferred or taken under advisement:                                   

• 24 hours of community service.

•  “DWI school”--a driver rehabilitation program for alcohol or drugs approved by the Traffic Safety Bureau of the State Department of Transportation.

• Alcohol or drug abuse screening program approved by the Department of Finance and Administration. 

• An ignition interlock driver’s license must be obtained and an ignition interlock device must be installed and operating on all motor vehicles driven by the offender for one year.  Unless the court determines the offender is indigent, the offender must pay all costs associated with having the ignition interlock device installed on the appropriate motor vehicles.  §66-8-102(N).

Discretionary.  Under §66-8-102(E), the sentence for a first conviction for DWI may include the following:

• Imprisonment up to 90 days total.

• Fine up to $500.    

• Additional 24 hours of community service.

• Costs of any court-ordered screening and treatment programs.  §66-8-102(R).

Additional Considerations.

• Any time spent in jail for the offense prior to conviction must be credited to any term of imprisonment imposed by the court.  §66-8-102(E).

• If the defendant fails to complete any court-ordered community service, screening program, treatment program or DWI school, or fails to comply with any other condition of probation, within the time specified by the court, the defendant must be sentenced to at least 48 additional consecutive hours in jail.  Any such jail time shall not be suspended, deferred or taken under advisement.  §66-8-102(E).

• If the sentence is partially or fully suspended or deferred, the period of probation may extend beyond 90 days up to one year.  A deferred sentence is considered a first conviction for determining subsequent convictions.  §66-8-102(E).

• If a defendant, whose sentence was partially or fully suspended or deferred, violates any condition of probation, the court may impose any sentence that it could have originally imposed and credit shall not be given for the time served on probation.  §66-8-102(S).                      

4.4.2 Second Conviction

A “second conviction” for DWI means:

• The defendant has one prior DWI conviction and was represented by counsel, regardless of the sentence.

or

• The defendant has one prior DWI conviction and validly waived counsel, regardless of the sentence.

or

• The defendant has one prior DWI conviction, was not represented by counsel, and the conviction did not result in a sentence of imprisonment.

Mandatory.  Under §66-8-102(F)(1), the sentence for a second conviction for DWI must include the following, none of which can be suspended, deferred or taken under advisement:

• 96 consecutive hours of jail.

• $500 fine.

• 48 hours of community service.

• Alcohol or drug abuse screening program approved by the Department of Finance and Administration.  This cannot be suspended, deferred or taken under advisement.  §66-8-102(K).

• Completion, within a time specified by the court, of one of the following court-approved programs:  (1) an inpatient, residential or in-custody substance abuse treatment program at least 28 days in duration; (2) an outpatient treatment program at least 90 days in duration; (3) a drug court program; or (4) any other substance abuse treatment program.  This requirement shall not be suspended, deferred or taken under advisement.  §66-8-102(L).

• An ignition interlock driver’s license must be obtained and an ignition interlock device must be installed and operating on all motor vehicles driven by the offender for two years.  Unless the court determines the offender is indigent, the offender must pay all costs associated with having the ignition interlock device installed on the appropriate motor vehicles.  §66-8-102(N).

Discretionary.  Under §66-8-102(F), the sentence for a second conviction for DWI may include the following:

• Up to 360 additional days in jail.

• Up to $500 additional fine.    

• Costs of any court-ordered screening and treatment programs.  §66-8-102(R).

Additional Considerations.

• If the defendant fails to complete any court-ordered community service, screening program or treatment program within the time specified by the court, the defendant must be sentenced to at least 7 additional consecutive days in jail and this can not be suspended, deferred or taken under advisement.  §66-8-102(F)(1).

• If the sentence is partially or fully suspended, the period of probation may extend beyond one year up to five years.  §66-8-102(F).

• If a defendant whose sentence was partially or fully suspended or deferred violates any condition of probation, the court may impose any sentence that it could have originally imposed and credit shall not be given for the time served on probation.  §66-8-102(S).           

• While §66-8-102(F) does not require that any pre-conviction time spent in jail be credited against the term of imprisonment imposed by the court, trial courts have inherent discretionary authority to provide presentence credit for second DWI convictions.  State v. Martinez, 1998-NMSC-023, ¶ 15.  Note that presentence credit for in-patient alcohol treatment can be applied only to a sentence of alcohol treatment and not to a sentence of jail.  Martinez at ¶ 16.

4.4.3 Third Conviction

A “third conviction” for DWI means the defendant has two prior DWI convictions, and
for each conviction:

• The defendant was represented by counsel, regardless of the sentence.

      or

• The defendant validly waived counsel, regardless of the sentence.

      or

• The defendant was not represented by counsel, and the conviction did not result in a sentence of imprisonment.

Mandatory.  Under §66-8-102(F)(2), the sentence for a third conviction for DWI must include the following, none of which can be suspended, deferred or taken under advisement:

• 30 consecutive days of jail.

• $750 fine.

• 96 hours of community service.

• Alcohol or drug abuse screening program approved by the Department of Finance and Administration.  This cannot be suspended, deferred or taken under advisement.  §66-8-102(K).

• Completion, within a time specified by the court, of one of the following court-approved programs:  (1) an inpatient, residential or in-custody substance abuse treatment program at least 28 days in duration; (2) an outpatient treatment program at least 90 days in duration; (3) a drug court program; or (4) any other substance abuse treatment program.  This requirement shall not be suspended, deferred or taken under advisement.  §66-8-102(L).

• An ignition interlock driver’s license must be obtained and an ignition interlock device must be installed and operating on all motor vehicles driven by the offender for three years.  Unless the court determines the offender is indigent, the offender must pay all costs associated with having the ignition interlock device installed on the appropriate motor vehicles.  §66-8-102(N).

Discretionary.  Under §66-8-102(F), the sentence for a third conviction for DWI may include the following:

• Up to 334 additional days in jail. 

• Up to $250 additional fine.    

• Costs of any court-ordered screening and treatment programs.  §66-8-102(R).

Additional Considerations.

• If the defendant fails to complete any court-ordered community service, screening program or treatment program within the time specified by the court, the defendant must be sentenced to at least 60 additional consecutive days in jail and this can not be suspended, deferred or taken under advisement.  §66-8-102(F)(2).

• If the sentence is partially or fully suspended, the period of probation may extend beyond one year up to five years.  §66-8-102(F).

• If a defendant, whose sentence was partially or fully suspended or deferred, violates any condition of probation, the court may impose any sentence that it could have originally imposed and credit shall not be given for the time served on probation.  §66-8-102(S).           

• While §66-8-102(F) does not require that any pre-conviction time spent in jail be credited against the term of imprisonment imposed by the court, trial courts have inherent discretionary authority to provide presentence credit for third DWI convictions.  State v. Martinez, 1998-NMSC-023, ¶ 15.  Note that presentence credit for in-patient alcohol treatment can be applied only to a sentence of alcohol treatment and not to a sentence of jail.  Martinez at ¶ 16.

4.4.4 Fourth, Fifth, Sixth, Seventh and Subsequent Convictions

Under §66-8-102, a fourth or subsequent DWI conviction is a felony that must be handled in district court. 

A fourth DWI conviction is a fourth degree felony for which the offender must be sentenced to 18 months of imprisonment, of which 6 months shall not be suspended, deferred or taken under advisement.  §66-8-102(G).  In addition, under §31-18-15(E)(8), a fourth degree felony is subject to a $5000 maximum fine.

A fifth DWI conviction is a fourth degree felony for which the offender must be sentenced to 2 years of imprisonment, of which 1 year shall not be suspended, deferred or taken under advisement.  §66-8-102(H).  In addition, under §31-18-15(E)(8), a fourth degree felony is subject to a $5000 maximum fine.

A sixth DWI conviction is a third degree felony for which the offender must be sentenced to 30 months of imprisonment, of which 18 months shall not be suspended, deferred or taken under advisement.  §66-8-102(I).  In addition, under §31-18-15(E)(8), a third degree felony is subject to a $5000 maximum fine.

A seventh or subsequent DWI conviction is a third degree felony for which the offender must be sentenced to 3 years of imprisonment, of which 2 years shall not be suspended, deferred or taken under advisement.  §66-8-102(J).  In addition, under §31-18-15(E)(8), a third degree felony is subject to a $5000 maximum fine.

Additional Considerations:

• For felony convictions, the Corrections Department is required to provide substance abuse counseling and treatment to offenders in its custody.  When the offender is on probation or parole under its supervision, the Corrections Department must either provide the offender with substance abuse counseling or treatment or require the offender to obtain substance abuse counseling or treatment.  §66-8-102(M).

• For fourth or subsequent DWI convictions, the offender must obtain an ignition interlock driver’s license and install and operate an ignition interlock device on all motor vehicles driven by the offender for the remainder of his or her life.  Unless the court determines the offender is indigent, the offender must pay all costs associated with having the ignition interlock device installed on the appropriate motor vehicles.  §66-8-102(N). 

• Five years from the date of conviction and every five years thereafter, a fourth or subsequent offender may apply to a district court for removal of the ignition interlock device requirement and restoration of a regular driver's license.  A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the regular driver’s license, provided the offender has not been subsequently convicted of DWI.  Good cause may include an alcohol screening and proof from the ignition interlock vendor that the person has not had violations involving the use of the interlock device. §66-8-102(O).

• Based on the requirement in §31-20-12, for presentence credit for felony convictions, trial courts must grant presentence credit for official confinement to defendants convicted of a fourth or subsequent DWI offense.  State v. Martinez, 1998-NMSC-023, ¶ 10.  A defendant released prior to a felony DWI conviction (1) under conditions of house arrest that require the defendant to remain at home except to attend specified events such as treatment, work, or school, and (2) pursuant to a community custody release program that holds the defendant liable to a charge of escape under §30-22-8.1, is entitled to presentence confinement credit for time spent in the program.  State v. Guillen, 2001-NMCA-079.  By contrast, presentence confinement credit cannot be granted against a felony DWI jail sentence for time spent in an in-patient alcohol treatment program that is not court-ordered and which imposes no restrictions or legal consequences on the defendant’s ability to leave.  State v. Clah, 1997-NMCA-091, ¶ 15.

• A fourth or subsequent DWI conviction cannot be enhanced under the habitual offender statute (§31-18-17), State v. Anaya, 1997-NMSC-010, ¶ 33; State v. Gonzales, 1997-NMSC-050, ¶ 20, nor can it be enhanced by aggravating circumstances under §31-18-15.1.  State v. Coyazo, 2001-NMCA-018, ¶ 11.
  

4.5 Presentence Report

A magistrate or district court judge may require a presentence report be prepared by a probation officer prior to the imposition of a sentence, §31-21-9(A), as may a metropolitan or municipal court judge.  The purpose of the pre-sentence report is to provide factual information about the defendant and to assist the court by recommending a sentence based on the information. 

There are no statutory limitations on the contents of a presentence report.  State v. Montoya, 91 N.M. 425 (Ct. App. 1978).  In general, the report should contain the fullest information possible concerning the defendant's life and characteristics, including accurate information regarding prior arrests that did not result in convictions and convictions for which the defendant had the benefit of legal counsel.  Inclusion of such information does not violate the defendant's due process rights.   Montoya.  The judge is not bound by the recommendations contained in the presentence report and must make an independent determination of the proper sentence in each case.  The prosecuting attorney and defense attorney have a right to review the factual information contained in the report prior to the sentencing hearing.

4.6 Sentencing Considerations

It is important to distinguish between mandatory (must) sentencing and discretionary (available to the court in its discretion) sentences, and the proof needed for each.  In order for a mandatory DWI sentence to be imposed, proof beyond a reasonable doubt of each and every prior conviction is necessary.  For example, if a defendant is to be sentenced as a third DWI offender, and the judge plans to impose the mandatory sentence of 30 consecutive days in jail, the prosecution must first produce certified copies of each of the prior convictions, showing the defendant was represented by, or waived, counsel in order to prove both of those prior convictions.  Only then may the judge enter a conviction for a third offense DWI and sentence the defendant to the mandatory 30 days in jail.

However, the prosecution not being able to prove the prior DWI offenses beyond a reasonable doubt does not preclude the judge from sentencing the defendant to that 30 days in jail discussed in the above example.  This may be done as part of the judge’s discretionary sentencing as long as the sentence given is within what is allowed by statute.  For example, for a first offense DWI the jail sentence may be up to 90 days.  §66-8-102(E).  This means that the judge can sentence the defendant anywhere from 0 days to 90 days. 

In deciding what sentence to impose within the allowable statutory range, the judge may take many things into account.  Factors that can be considered include:  how does the driver come across if he or she exercises the right of allocution and makes a statement to the court about the incident; was there an automobile crash; was anyone injured; were any children in the vehicle; does the defendant have a prior criminal history; and does the defendant’s prior driving history include any prior DWI convictions.  Remember, courts are required to review the defendant’s past driving record before imposing a sentence.  §66-8-110(G).  The difference here is that the prior convictions do not have to be proven beyond a reasonable doubt for the judge to consider them in imposing any authorized discretionary sentence.  In a sentencing hearing, the standard for the prosecution is to present matters and prove them to the satisfaction of the judge.  If, for example, because of problems obtaining a certified record, the prior offenses cannot be proven beyond a reasonable doubt, but do appear on the defendant’s driving record, the judge, in his or her discretion, may consider them if it feels the record is correct.

In these situations, the judge does not sentence the defendant as a second or third offender; rather, the sentence is for a first offense.  But taking into account all mitigating and aggravating factors, the judge may impose a sentence anywhere within the allowable statutory range.  “Mitigate” is defined as “to make less severe, violent, cruel, intense, painful; soften, alleviate,” while “aggravate” is defined as “to make worse, more serious, or more severe:  intensify.”  State v. Segotta, 100 N.M. 498, 501 (1983).  Therefore, a defendant with a clean driving record, no past criminal history, a fairly low breath and/or blood alcohol level and no other aggravating factors may get no jail time, or all jail time suspended, while a defendant with two prior uncertified/unproven DWI convictions, five prior speeding tickets, a criminal history of minor crimes, and other factors, may get 30 or even 60 days in jail with no portion suspended.
 
The important thing to remember is that proof of priors beyond a reasonable doubt is only necessary when imposing a mandatory sentence.  The judge always has the discretion to impose up to the statutory maximum allowable sentence if credible and persuasive information is presented during sentencing to warrant it.

4.7 Deferral, Suspension and Probation

In addition to exercising discretion in imposing a sentence within the statutory limits, a judge may (1) suspend the sentence in whole or in part, or (2) only on a first DWI conviction, §66-8-102(E), defer the sentence.  §31-19-1; §31-20-5.  If the sentence is suspended or deferred, the judge may place the defendant on probation for all, or some, of the period of deferment or suspension and may impose conditions that are reasonably related to the defendant’s rehabilitation.  Suspending or deferring a sentence and imposing probation is an act of clemency, not a right of the defendant.  However, keep in mind that sentencing for DWI does contain some mandatory sentencing requirements, as discussed previously. 

In deferring or suspending a DWI sentence, a judge may order probation of up to one year for a first conviction under §66-8-102(E) and up to five years for a second or third conviction under §66-8-102(F). 

If a defendant is convicted on only one charge, the sentence cannot be both deferred and suspended.  If the defendant is convicted on more than one charge, the court may impose (and suspend) a fine and/or jail sentence on one charge and defer the sentence on the other. 

The terms and conditions of probation are at the discretion of the judge and must be reasonably related to the defendant’s rehabilitation.  To be reasonably related, the probation condition must be relevant to the offense for which probation was granted.  As a condition of probation, for example, the court may require attendance at an alcohol treatment program or may order the defendant to make restitution to anyone who was injured as a result of the offense.  The judge has discretion to determine whether supervision is to be a condition of probation.  Probation may be supervised by the court, community and probation services, or county misdemeanor compliance officers under §31-20-5.1.  

If the court defers a sentence or suspends all or part of a sentence without setting the terms and conditions of probation on an original valid judgment and sentence form, it may not later amend it to include the terms and conditions of probation.  The original valid sentence may not be amended by including any conditions such as probation.  The length of the probation period should be specifically entered on the judgment form.  If a fixed probation period is not specified, the probation period will be assumed to be the same as the maximum allowable sentence.  Note:  The court may modify, but not increase, a sentence under Rules 5-801 (district court), 6-801 (magistrate court), 7-901 (metropolitan court) and 8-801 (municipal court).  Changing the sentence from incarceration to probation is a permissible reduction under these rules.

If multiple sentences are ordered to be served consecutively (run one right after the other), the individual probation periods for each sentence will be "stacked" (except in municipal court); that is, imposed one after the other for a combined total period longer than the probation for one offense.  If multiple sentences will be served concurrently (run together at the same time), the probation periods will be effective for the duration of the longest of the individual probation periods. 

If the defendant violates the conditions of probation under a suspended or deferred sentence, the prosecution may file a motion with the court for the revocation of the suspended or deferred sentence.  If such a motion is made, the court must hold a hearing and must give prior notice to the defendant.  The court, on its own initiative, may also start a proceeding to determine whether probation has been violated, and, if so, what sentence to impose.  A hearing must be held in this situation.  The court may also issue an arrest warrant for the alleged probation violator for good cause shown. 

If, after the hearing, the court revokes the probation, a new judgment and sentence form is prepared, with a notation that the probation on the original form has been revoked.  The court may then reinstate the defendant's probation or if sentence was suspended, require the defendant to serve the balance of the sentence imposed or any lesser sentence.  If imposition of sentence was deferred, the court may impose any sentence that might originally have been imposed, crediting time served on probation.  If the court revokes the deferral of sentence, a new judgment and sentence form is prepared, with a notation that the sentence is being imposed as a result of a violation of the conditions of probation under the deferred sentence.  Because a hearing on probation revocation is not a trial, the right to a speedy trial is not applicable.

4.8    Mandatory Court Fees

In addition to the sentencing provisions of §66-8-102, the following fees are mandatory and must be imposed on a defendant convicted of DWI, either by a guilty verdict after trial or by a plea of guilty or no contest.  The fees are mandatory (must always be imposed) for every DWI conviction, even if the defendant receives a deferred or suspended sentence.  The fees cannot be imposed if the defendant is not convicted.  For the state Supreme Court’s order dealing with fines and fees, see Appendix C.3 under tab 8. 

Courts are required to collect these fees and distribute them to the appropriate agencies:

• $65 DWI lab fee (to defray the costs of chemical and other tests used to determine the influence of liquor or drugs).  §31-12-7(A).  This applies to convictions under §66-8-102 and municipal DWI ordinances (see UTO 12-6-12.2(L)).  These fees are sent to the Administrative Office of the Courts, which deposits them in the Crime Laboratory Fund for payment to the Scientific Laboratory Division of the Department of Health, the State Police Crime Laboratory Division and the Albuquerque Police Crime Laboratory.  §31-12-9.

• $75 DWI community prevention fee (to fund comprehensive community programs for the prevention of DWI and for other traffic safety purposes).  §31-12-7(B).  This applies to convictions under §66-8-102 and municipal DWI ordinances (see UTO 12-6-12.2(L)).  These fees are sent to the Administrative Office of the Courts, which deposits them in the Crime Laboratory Fund for payment to the Traffic Safety Bureau of the Highway and Transportation Department.  §31-12-9.

• Docket fee: 

• $35 in district court for criminal appeals from magistrate court decisions.  $10 of this fee must be deposited in the court automation fund.  §35-13-2(B).  Except as otherwise specifically provided by law, docket fees are paid into the General Fund.  §34-6-40(C).
• $20 in magistrate and metropolitan court.  Under §35-6-4(B), the court must attempt to collect a $20 docket fee from a defendant convicted in any criminal action.  The docket fee is charged per criminal complaint, not per conviction of separate criminal offenses in the complaint.  These fees are transferred to the Administrative Office of the Courts for deposit in the Court Facilities Fund.  §§35-6-4(B), 35-6-1(A)
• None in municipal court. 
• Corrections fee:
• $20 in magistrate court and $10 in metropolitan court.  §35-6-1(D)(1).

These fees are deposited in the Local Government Corrections Fund administered by the Administrative Office of the Courts for payment to counties and municipalities in counties with a metropolitan court for county or municipal jailer or juvenile detention training; for construction planning, construction, maintenance and operation of the county or municipal jail or juvenile detention facility; for the costs of housing county or municipal prisoners or juveniles in any detention facility in the state; or for complying with match or contribution requirements for receipt of federal funds relating to jails.  §33-3-25(B).

• $20 in municipal court.  §35-14-11(B)(1).  These fees are deposited in a special fund in the municipal treasury and used for municipal jailer or juvenile detention officer training; construction planning, construction, operation and maintenance of a municipal jail or juvenile detention facility; paying the costs of housing municipal prisoners in a county jail or detention facility or housing juveniles in a detention facility; complying with match or contribution requirements for receipt of federal funds relating to jails or juvenile detention facilities; providing inpatient treatment or other substance abuse programs in conjunction with or as an alternative to jail sentencing; defraying the cost of transporting prisoners to jails or juveniles to juvenile detention facilities; or providing electronic monitoring systems.  §35-14-11(D).

• Court automation fee:

• Of the $35 docket fee, in district court for criminal appeals from magistrate court decisions, $10 is deposited in the court automation fund.  §35-13-2(B).  The Court Automation Fund is administered by the Administrative Office of the Courts and used for service contracts related to court automation systems and the purchase, lease-purchase, financing, refinancing and maintenance of court automation systems in the judiciary.  §34-9-10(B).

• $10 in magistrate and metropolitan court.  §35-6-1(D)(2).  These fees are deposited in the Court Automation Fund, administered by the Administrative Office of the Courts, and used for service contracts related to court automation systems and the purchase, lease-purchase, financing, refinancing and maintenance of court automation systems in the judiciary.  §34-9-10(B).

• $6 in municipal court.  §35-14-11(B)(3).  These fees are deposited in the Municipal Court Automation Fund, administered by the Administrative Office of the Courts, and used for the purchase, maintenance and operation, including personnel costs, of court automation systems in the municipal courts.  §34-9-12(B).
• Traffic safety fee:
• $3 in magistrate and metropolitan court.  §35-6-1(D)(3).  These fees are deposited in the Traffic Safety Education and Enforcement Fund administered by the Traffic Safety Bureau of the Highway and Transportation Department.  §66-7-512
• Municipal judges do not have authority to collect this fee.
• Judicial education fee:

• $2 in magistrate and metropolitan court.  §35-6-1(D)(4).  These fees are deposited in the Judicial Education Fund and administered by the Judicial Education Center, within the Institute of Public Law at the University of New Mexico School of Law, for education, training and instruction for the justices, judges, magistrates and court personnel of the state, municipalities and counties.  §§34-13-1, 34-13-2.   
• $2 in municipal court.  §35-14-11(B)(2).  These fees are handled the same as above.
• Brain injury services fee:
• $5 in magistrate and metropolitan court.  §35-6-1(D)(5).  These fees are deposited in the Brain Injury Services Fund, administered by the Department of Health, and used to institute and maintain a statewide brain injury services program designed to increase the independence of persons with traumatic brain injuries.  §24-1-24.
• Municipal judges do not have authority to collect this fee.

• Court facilities fee:

• $24 in metropolitan court.  §35-6-1(D)(6).  These fees are deposited in the Court Facilities Fund, administered by the Administrative Office of the Courts, and used for acquisition of real property and the design, construction, furnishing and equipping of a new Bernalillo county metropolitan court building and parking facility.  §34-9-14. 
• $10 in magistrate court.  §35-6-1(D)(6).  These fees are handled the same as above.
• Municipal judges do not have authority to collect this fee.

• Domestic violence offender treatment fee:
  
  
  • $5 in magistrate, metropolitan and district court.  These fees are deposited in the domestic violence offender treatment fund.  §34-15-1.
  • Municipal judges do not have authority to collect this fee.

4.9    DWI Conviction Records

Within 10 days of a DWI judgment and sentence, the court must send an abstract of the court case to the Motor Vehicle Division, unless the conviction is appealed to a higher court.  According to §66-8-135(B), the abstract must contain the following information:

• Name and address of the defendant.
• Specific section number and common name of the state statute or local law, ordinance or regulation under which the defendant was tried. 

• The plea, finding of the court and disposition of the charge, including any fine, jail sentence, forfeiture of bail or dismissal of the charge.
• Itemization of costs assessed to the defendant.

• Date of the hearing.

• Court's name and address.

• Whether the defendant was a first or subsequent offender. 

• Whether the defendant was represented by counsel or waived the right to counsel and, if represented, the name and address of counsel. 

This information is usually entered on the court abstract form from the DWI citation provided by the Motor Vehicle Division.  Failure or refusal of any judicial officer to comply with the requirements of §66-8-135 is misconduct in office and grounds for removal.  §66-8-135(F).

A prior DWI conviction will be counted for the purpose of determining subsequent convictions, for charging and sentencing decisions, even if the sentence is deferred.  Therefore, it is important for court abstract information to reach the Motor Vehicle Division in a timely manner.  A DWI conviction stays on a motorist’s driving record for 25 years, unlike other traffic convictions, which drop off after three years.  Although a deferred sentence for other Motor Vehicle Code violations means the offense drops off a motorist’s driving record entirely, that is not the case for DWI convictions that result in deferred sentences. 

4.10  Driver’s License Revocation

License revocation is an administrative action handled exclusively by the Motor Vehicle Division of the New Mexico Taxation and Revenue Department.  A judge may never revoke a defendant’s driver’s license, regardless of the offense.  A judge may never physically take away a motorist’s driver’s license for any reason.

Because license revocation is considered to be an important sanction against DWI offenders, there are two separate systems that operate to make certain a DWI offender loses his or her driver’s license: 

• Revocation Stemming from a DWI Arrest.  The process of administrative revocation begins when the arresting officer, acting as an agent for the MVD, physically removes the driver’s license from a DWI suspect if the suspect either fails the chemical test, by registering a .08 or higher alcohol level (.04 for drivers of commercial vehicles or .02 for under age-21 offenders), or refuses to take the chemical test(s).  The driver receives from the officer a temporary license (the driver’s copy of the “Notice of Revocation”) that is valid for 20 days.  If the driver does not request an administrative hearing on the pending license revocation within 10 days, his or her driver’s license will be automatically revoked, either for six months (no prior DWI administrative revocations) or for a year (a prior DWI administrative revocation, an under-age 21 driver, or a refusal to submit to breath and/or blood testing in the DWI that is the subject matter of the license revocation hearing).  If the driver timely requests a hearing and the administrative license revocation (Implied Consent) hearing officer rules for the driver, the driver’s license will be returned.  The most common reason that a driver would prevail at the Implied Consent hearing is because the law enforcement officer fails to appear at the hearing, or because the hearing officer is convinced that the stop, arrest or chemical testing procedures were deficient in some way.

The Implied Consent administrative hearing, to determine whether a motorist should have their driver’s license revoked for the DWI arrest, must occur within ninety days of the service of the Notice of Revocation paperwork on the motorist.  Therefore, typically, the administrative license revocation hearing is held prior to the completion of the criminal DWI case in court.  Thus, it is not unusual for a DWI defendant’s driver’s license to already be administratively revoked during the criminal DWI case.  On rare occasions, in the DWI criminal case, judges may be presented with the written decision of the administrative license revocation hearing officer.  The prosecution, defense counsel or the pro se driver may ask the court to apply the decision’s reasoning to the criminal case.  Keep in mind that those decisions are not binding in any way on the court, and the judge can decide whether or not to consider the decision.   

• Revocation Stemming from a DWI Criminal Conviction.  After a DWI conviction, the court sends official notice of the conviction to the Motor Vehicle Division, as required by §66‑8‑135(B).  This notice is in the form of the court abstract, which is part of the DWI citation.  When the Motor Vehicle Division receives the court’s notice of a DWI conviction, the defendant’s license will be administratively revoked by MVD for one year from the date of conviction. 

It is possible for the defendant to prevail at the administrative hearing and receive his license back, only to lose it upon the criminal conviction for DWI.  Conversely, the defendant can lose his license administratively and win at the criminal trial, and still be revoked.  In general, what happens at one forum does not affect the other.

If the defendant loses his license administratively and then is also convicted of DWI, the two revocations run concurrently (together, at the same time) for a single year.

Note on Degree of Offense:  If a judge signs a DWI plea agreement that contains language specifying the defendant is a first offender “for all lawful purposes,” the Motor Vehicle Division may be required to revoke the defendant as a first offender.  Compare Collyer v. State Taxation & Revenue Dep't, 121 N.M. 477 (Ct. App. 1995) (holding that a court judgment treating a DWI conviction as first offense bound the Motor Vehicle Division to consider it a first offense under §66-5-29) with Medrow v. State Taxation & Revenue Dep't, 1998-NMCA-173 (holding that a guilty plea to first offense aggravated DWI by a defendant who had a prior license revocation under the Implied Consent Act did not preclude the Motor Vehicle Division from revoking the license for one year under §66-8-111 of the Act).

The New Mexico Supreme Court has ruled the administrative license revocation process and a subsequent criminal prosecution based on the same DWI incident do not violate the constitutional prohibition against double jeopardy.  State ex rel. Schwartz v. Kennedy, 120 N.M. 619 (1995).  That case and the concept of double jeopardy will be discussed in greater detail in the following section.

4.11 DWI and Double Jeopardy

Some municipalities, e.g. Albuquerque, have enacted ordinances providing for the forfeiture of vehicles as a result of a DWI arrest, and other municipalities are considering the passage of similar ordinances.  The general purpose behind such ordinances is to take away from the arrested individual the very instrument, i.e. the vehicle, which allowed the driver to allegedly commit the crime of DWI. 
As more local governing bodies enact forfeiture laws, courts may have double jeopardy arguments presented to them in DWI criminal cases.  The double jeopardy clause of the United States and New Mexico constitutions prohibit the state from seeking to punish citizens twice in separate proceedings for a single incident. 

In State ex rel. Schwartz v. Kennedy, 120 N.M. 619 (1995), the state Supreme Court held the system of a criminal process for DWI and a separate administrative system for revocation of drivers’ licenses for those arrested for DWI does not violate double jeopardy principles.  In reaching its decision, the court concluded the administrative license revocation process is not “punishment” for purposes of double jeopardy but instead has a remedial purpose of removing dangerous drivers from the roads.  In reaching that decision, the court considered the fact that the administrative license revocation proceeding and the criminal proceeding are entirely separate and distinct processes which are pursued independently of each other, before two different fact finders under two different standards of review resulting in two separate judgments.

Based on the analysis in Kennedy, it appears DWI vehicle forfeiture proceedings would likewise not violate double jeopardy principles.  Such proceedings are civil and remedial in nature and therefore similar to the administrative license revocation process.  Additionally, vehicle forfeiture proceedings are pursued independently of the DWI criminal prosecution before different decision makers applying different standards of review and resulting in two separate judgments.
In State v Gomez, No 24,524 (September 7, 2006) (appeal pending), the Court of Appeals dealt with a double jeopardy issue where the prosecution generically charged the defendant with violating Section 66-8-102, the state DWI statute.  In that case, after impaneling of the jury and during the middle of the trial, the district court heard and granted defendant’s motion to exclude the blood draw alcohol test result based on the prosecution’s failure to lay the proper foundation for the admission of the result.  While that ruling prevented the prosecution from being able to secure a conviction for per se DWI, the prosecution refused to make efforts to secure a DWI conviction based on the theory of simple impairment, which does not require any reference to breath or blood draw alcohol test results.  Following that refusal, the district court entered a directed verdict in defendant’s favor acquitting him of DWI.  In its analysis, the Court of Appeals first noted that the prohibition against double jeopardy attached when the jury was empanelled.  Gomez at ¶ 10.  Second, the appellate court held that given the trial court’s express ruling acquitting defendant, the prosecution could not attempt to retry him for DWI.  Gomez at ¶ 13.

The holding and analysis of Gomez is essentially that a trial court’s acquittal of a defendant in a DWI case acts to affirmatively prevent the prosecution from a second effort to secure a DWI conviction, even under the alternative method of proving DWI not initially relied on in the first case.  The real impact of the Gomez case is perhaps on the prosecution and its determination of how it will charge a defendant with DWI and on what theory of the crime, simple impairment or per se DWI, it will pursue in its conviction efforts.

4.1.2 Ignition Interlock Limited Driver’s License

For all DWI arrests June 17, 2005, and forward, the only limited driver’s license available to a motorist, either convicted of DWI and/or administratively revoked under the Implied Consent Act, is the ignition interlock driver’s license.  The “school/work” limited driver’s license is no longer available to motorists who have their driver’s license revoked as a result of a DWI. 

The ignition interlock driver’s license requires a motorist to have installed in any vehicle they will be operating an ignition interlock device.  That device requires the motorist to provide a breath sample in order to start the vehicle and, periodically, when they are driving provide additional breath samples to ensure the motorist is not drinking and driving.  The ignition interlock device is obtained from a private vendor, usually through a leasing agreement.  Once that device is installed, the motorist must obtain an ignition interlock driver’s license from MVD.  The ignition interlock driver’s license, on its face, will advise law enforcement the motorist is driving with the restriction of having to have an ignition interlock device on every vehicle they operate.  Remember, a judge may never revoke a motorist’s driver’s license for any reason whatsoever nor physically remove their driver’s license from them for any reason.