State v. Lewis

• Decision Date: 06 February 2008
• Docket Number: No. 27,316.,27,316.
• Citation: 184 P.3d 1050,2008 NMCA 070
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Darell L. LEWIS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

184 P.3d 1050

2008 NMCA 070

STATE of New Mexico, Plaintiff-Appellee, v. Darell L. LEWIS, Defendant-Appellant.

No. 27,316.

Court of Appeals of New Mexico.

February 6, 2008.

Certiorari Denied, No. 30,970, April 3, 2008.

Gary K. King, Attorney General, Santa Fe, NM, James W. Grayson, Assistant Attorney General, Albuquerque, NM, for Appellee.

John A. McCall, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Chief Judge.

{1} This appeal presents the question whether a Colorado conviction for driving while ability impaired (DWAI) can be used to enhance a defendant's sentence for driving while under the influence of intoxicating liquor or drugs (DWI) under NMSA 1978, § 66-8-102 (2005) (amended 2007). Defendant Darell L. Lewis challenges his conviction for felony DWI based on a fourth offense, claiming that he has only two prior convictions. See § 66-8-102(G) (providing that an offender is guilty of a fourth degree felony upon a fourth conviction for DWI). Defendant argues that the Colorado offense of DWAI cannot be used for sentencing purposes under Section 66-8-102 because (1) it occurred outside New Mexico, and (2) DWAI is not equivalent to a New Mexico DWI. We hold that Section 66-8-102 requires that equivalent out-of-state convictions be used to enhance a defendant's sentence for repeated DWI convictions. We also hold that Defendant's Colorado conviction for DWAI is equivalent to a New Mexico DWI conviction. We therefore affirm.

BACKGROUND

{2} The State charged Defendant with DWI (fourth or subsequent offense), aggravated battery, and false imprisonment. Defendant pleaded guilty in the alternative to felony or misdemeanor DWI and no contest to false imprisonment. The district court accepted the plea. In its amended judgment, the district court noted that, pursuant to no contest pleas accepted by the court, Defendant was convicted of DWI, a fourth degree felony, and false imprisonment. During sentencing, the State informed the district court that Defendant had three prior DWIs. Defendant conceded that he had two prior DWI convictions, but argued that his Colorado conviction for DWAI could not be used to enhance his sentence under Section 66-8-102. The district court disagreed and found that Defendant had three prior DWI convictions, two in municipal court in New Mexico and one in Colorado. The information in the record concerning the Colorado conviction is that Defendant was convicted on September 9, 1994, in Cause No. 93-001944, for an offense in La Plata County, Colorado, occurring on or about November 22, 1993. The district court sentenced Defendant to eighteen months as provided for by statute for his fourth conviction. See § 66-8-102(G) (providing that "[u]pon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and . . . shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended, deferred or taken under advisement").

{3} On appeal, Defendant challenges the district court's use of his Colorado DWAI conviction in determining that his present DWI conviction is his fourth within the meaning of Section 66-8-102(G), contending instead that this is his third conviction under Section 66-8-102(F), which carries a punishment of no more than 364 days, constituting a misdemeanor.

DISCUSSION

{4} Defendant raises two issues on appeal: (1) whether Section 66-8-102 permits the use of DWI convictions from other states in determining the number of a defendant's prior DWI convictions, and (2) whether Defendant's Colorado conviction for DWAI constitutes an equivalent DWI conviction under Section 66-8-102.

The District Court Did Not Err in Sentencing Defendant to Felony DWI When One of His Prior Convictions Was a Conviction for DWAI in the State of Colorado

{5} Defendant first contends that the Colorado offense of DWAI cannot be used to enhance his DWI penalty under Section 66-8-102 because it is an out-of-state conviction. In response, the State argues that the language and history of Section 66-8-102 clearly demonstrate that the Legislature intended that DWI convictions from other states be used to determine the appropriate punishment for a violation of the statute.

Standard of Review and Canons of Construction

{6} The interpretation of a statute is a question of law we review de novo. State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. The primary aim of statutory construction is to "give effect to the intent of the Legislature." Id. (internal quotation marks and citation omitted). "We begin by looking at the language of the statute itself." Id. ¶ 9. When "the meaning of a statute is truly clear—not vague, uncertain, ambiguous, or otherwise doubtful—it is of course the responsibility of the judiciary to apply the statute as written." State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994).

{7} In the event there is any doubt as to the meaning of the words of a statute, we also consider the statute's history and background. See id. at 353, 871 P.2d at 1359 (noting that a statute's history and background may help clarify an ambiguity). We construe a statute in the context of its history and legislative objectives, reading statutes in pari materia to ascertain legislative intent. See State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 23. When a statute has been amended, "[t]he amended language must be read within the context of the previously existing statute." See State ex rel. Stratton v. Serna, 109 N.M. 1, 3, 780 P.2d 1148, 1150 (1989).

{8} Finally, New Mexico courts apply a rule of strict interpretation of penal statutes. State v. Nelson, 1996-NMCA-012, ¶ 7, 121 N.M. 301, 910 P.2d 935. Statutes defining criminal conduct, and providing for additional or enhanced penalties for criminal conduct, "are strictly construed and any doubts regarding construction of criminal statutes are resolved in favor of lenity." Id. "If it is not clear that the legislature intended an enhanced sentence, no enhancement will be applied." Id. (alteration omitted) (internal quotation marks and citation omitted). However, even with respect to the rule of lenity, the language of penal statutes must be given a reasonable construction. Id.

Section 66-8-102

{9} In Section 66-8-102, the Legislature clearly expressed its intent to increase penalties for the crime of DWI based on the number of times an offender has been convicted of DWI. See State v. Hernandez, 2001-NMCA-057, ¶¶ 23-26, 130 N.M. 698, 30 P.3d 387 (noting that DWI sentencing is tied to recurrence of the offense). "[R]epetition of offense is accounted for by increasing the basic punishment per numbered conviction." Id. ¶ 30. Misdemeanor penalties steadily increase for the first, second, and third convictions, while punishment at the felony level similarly increases for the fourth through seventh convictions. See § 66-8-102(E)-(J). The penalty provisions of Section 66-8-102 were "intended to enhance the sentence for repeat offenders rather than to create a new offense with discrete elements." State v. Anaya, 1997-NMSC-010, ¶ 18, 123 N.M. 14, 933 P.2d 223.

{10} The specific penalty provision at issue in this appeal is Section 66-8-102(G). Section 66-8-102(G) provides that "[u]pon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony." In another subsection under Section 66-8-102, the Legislature further provides:

A conviction pursuant to a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States or of a tribe, when that ordinance or law is equivalent to New Mexico law for driving while under the influence of intoxicating liquor or drugs, and prescribes penalties for driving while under the influence of intoxicating liquor or drugs, shall be deemed to be a conviction pursuant to this section for purposes of determining whether a conviction is a second or subsequent conviction. § 66-8-102(Q).

{11} Based on the plain language, we agree with the State that the meaning of the statute is clear. Subsection (G) provides that an offender is guilty of a fourth degree felony upon a fourth conviction pursuant to Section 66-8-102. Subsection (Q) expressly establishes which prior convictions are to be used in determining the appropriate penalty level. Under Subsection (Q), a DWI-equivalent conviction from another state shall constitute a DWI conviction under Section 66-8-102 in determining whether the current conviction in New Mexico is a second or subsequent conviction, as long as the out-of-state conviction is based on a law that is equivalent to Section 66-8-102 and prescribes penalties for DWI. Thus, when a defendant has three prior convictions, a defendant must be sentenced for a fourth DWI conviction pursuant to 66-8-102(G), even though not all of the convictions occurred in New Mexico. Subsection (Q) requires a sentencing court to give effect to a defendant's out-of-state convictions. Because the statute is clear, it should be applied as written.

{12} Despite the express language in Subsection (Q) relating to out-of-state convictions, Defendant contends that the Legislature has never clearly indicated its intent to include convictions from other jurisdictions for the purposes of criminal enhancement pursuant to Section 66-8-102. To support this argument, Defendant points to the language in Subsection (G) which states "pursuant to this section." Defendant argues that by using the phrase "pursuant to this section" without elaboration, the Legislature did not expressly provide for the use of out-of-state convictions for enhancement purposes. Rather, in Defendant's view, the Legislature limited prior convictions that could be considered to those obtained pursuant to Section 66-8-102, in other words, convictions obtained in New Mexico.

{13} Defendant argues that this issue is still controlled by Nelson. In Nelson, this Court determined that...