OPINION
{1} This аppeal 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 convictiоns 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 Defendаnt 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 “[ujpon 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,
{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,
{8} Finally, New Mexico courts apply a rule of strict interpretation of penal statutes. State v. Nelson,
Section 66-8-102
{9} In Section 66-8-102, the Legislature clearly expressed its intеnt 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,
{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 subsequеnt 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 pri- оr 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 language similar to “pursuant to this section” in a previous version of Section 66-8-102(G) did not clearly indicate legislative intent to count prior convictions from other states. See Nelson,
{14} We reject Defendant’s reliance on Nelson. Although we perceive little room for doubt concerning the Legislature’s intent given the plain language of Section 66-8-102, the history of the statute makes clear that the Legislature intended to require out-of-state convictions to be counted as prior convictions. In Nelson, this Court examined a version of Section 66-8-102 that was enacted in 1993. See Nelson,
{15} In Nelson, we rejected the State’s argument. Id. We determined that the reference to “subsequent offender,” which was not found in Section 66-8-102, was limited to license revocation proceedings. Nelson,
{16} In light of subsequent statutory amendments, we conclude that a completely different legislative intent is clear today. Following our decision in Nelson, the Legislature amended Section 66-8-102 in an act titled in part, “Authorizing the Use of Convictions from Other Jurisdictions for Driving While Under the Influence of Intoxicating Liquor or Drugs as Prior Convictions.” 1997 N.M. Laws ch. 43, § 1. That new version of the statute included Subsection (J), which provided that:
[a] conviction under a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States which is equivalent to New Mexico law for driving under the influence of intoxicating liquor or drugs, prescribing penalties for driving while under the influence of intoxicating liquor or drugs shall be deemed to be a conviction under this section for purposes of determining whether a conviction is a second or subsequent cоnviction.
Id. In 2002 the Legislature enumerated the 1997 Subsection (J) as (M), and changed “under this section” to “pursuant to this section.” 2002 N.M. Laws ch. 82, § 1. In 2003 the Legislature further amended this subsection to include convictions pursuant to the jurisdiction of tribes. 2003 N.M. Laws ch. 164, § 10. Although the Legislature has subsequently amended the statute, the subsection defining prior convictions remains a part of Section 66-8-102, currently codified as Subsection (Q). See § 66-8-102(Q).
{17} Despite the addition of a subsection defining convictions from other jurisdictions as prior convictions, Defendant urges us to adopt the reasoning of a federal magistrate judge that found Nelson remained valid. See Manzanares, No. CIV-05-1105 JH/KBM at 10. Based on Manzanares, Defendant continues to argue that the Legislature’s only change to the key language аt issue in Nelson was to change the words “under this section” to “pursuant to this section” in reference to the Section 66-8-102(G) enhancement. Defendant contends that the statute still states, pursuant to our interpretation in Nelson, that only convictions obtained in New Mexico courts may be used as priors in determining the number of DWI convictions a defendant has under Section 66-8-102 for purposes of criminal punishment. Defendant argues that if the Legislature had intended to include convictions from other jurisdictions, it would have inserted that language into Subsection 66-8-102(G) when it amended the statute after Nelson. Because the Legislature did not make that change to Subsection (G), Defendant asserts that the Legislature took no action to add the language necessary to each of the criminal penalty enhancements now at Subsections (F)(J) to make prior out-of-state convictions applicable to those sections. Thus, Defendant contends that the enhancement portion of New Mexico’s DWI statute does not apply to the felony enhancement aspect of the conviction but simply to administrative aspects of punishment. In Defendant’s view, the federal court in Manzanares correctly found that Nelson has not been abrogated.
{18} Defendant has not provided us with the full pertinent record of the Manzanares case. The State indicates that there were proceedings that could cast doubt on the validity of the magistrate judge’s recommended resolution in that cаse, including, among other things, the fact that the recommended resolutions and the court’s acceptance of it was interlocutory, and the fact that the case was ultimately dismissed for lack of prosecution. We see no reliable basis on which to agree with or to give any weight to any analysis in Manzanares.
{19} Further, we cannot accept Defendant’s construction of Section 66-8-102. Defendant would have us completely ignore the Legislature’s decision after Nelson to add a subsection to our DWI statute defining prior convictions to include out-of-state DWI convictions. See 1997 N.M. Laws eh. 43, § 1; § 66 — 8—102(Q). Although the Legislature did not amend Subsection (G) in the manner discussed in Nelson, it clearly expressed its intention to broaden the definition of prior convictions starting with the title of the act it passed in 1997 (“Authorizing the Use of Convictions from Other Jurisdictions for Driving While Under the Influence of Intoxicating Liquor or Drugs as Prior Convictions”). See Smith,
{20} We remain persuaded that by amending Section 66-8-102 to include what is now Subsection (Q), and by including the phrase “pursuant to this section” in both subsections, the Legislature clearly indicated its intent to include out-of-state convictions as prior convictions for enhancement purposes. Further, we reject Defendant’s argument that Nelson remains valid because the Legislature and this Court have not explicitly overruled it. Contrary to Defendant’s assertions, the Legislature clearly abrogated our holding in Nelson by expressly providing a subsection that defined out-of-state convictions as prior convictions under Section 66-8-102. See 1997 N.M. Laws eh. 43, § 1; § 66-8-102(Q). Thus, Defendant has been on notice since 1997 that his prior out-of-state DWI conviction would count for sentence enhancement in New Mexico.
{21} Finally, Defendant wrongly asserts that this Court and the Legislature “have spoken with [our] silent acquiescence in the logic of the Nelson holding.” This Court has once cited Nelson for the rule that courts should apply the plain meaning of a statute when it is clear. See State v. Rios,
Defendant’s Colorado Conviction for DWAI Is Equivalent to DWI in New Mexico
{22} Having concluded that a valid out-of-state conviction must be considered a prior conviction, we now address whether Defendant’s Colorado conviction for DWAI is an equivalent offense to the New Mexico crime of DWI for the purpose of sentencing Defendant as a repeat offender pursuant to Section 66-8-102.
{23} Defendant argues that it was impermissible to use his Colorado conviction to enhance his crime to a felony because it does not satisfy the equivalency requirements of Section 66-8-102(Q). Relying on Commonwealth v. Bolden,
{24} For the purpose of this equivalency discussion, we note that the parties rely on the current version of Colorado’s DWAI statute, Colo.Rev.Stat. § 42-4-1301 (2006). The only significant difference we see between the current version and Colorado’s statute at the time of Defendant’s Colorado DWAI, then codified at Colo.Rev.Stat. § 42-4-1202 (1993), see 1994 Colo. Legis. Serv. Sen. Bill No. 94.1, is that in Subsection (1.5)(а), the blood or breath alcohol content (BAC) limit was 0.10, whereas the comparable provision in Section 42-4-1301 is Subsection (2)(a), which set the BAC limit at 0.08. Because we do not believe this difference in the BAC limit is significant for the purpose of our equivalency analysis, we will compare Colo. Rev.Stat. § 42-4-1301 with New Mexico’s Section 66-8-102 throughout this discussion.
{25} Turning to our statute, Section 66-8-102(Q) provides that a conviction pursuant to a law of another state shall be deemed a conviction pursuant to Section 66-8-102 for purposes of determining whether a conviction is a second or subsequent offense when that law is equivalent to New Mexico law and prescribes penalties for DWI. § 66-8-102(Q). Our statute does not further define equivalency. However, we agree with Defendаnt that the focus of our inquiry in determining whether two statutes are equivalent should be on the elements of the statutes. See Bolden,
{26} In Colorado, it is a misdemeanor to drive a vehicle while under the influence of alcohol or drugs or while impaired by alcohol or drugs. Colo.Rev.Stat. § 42-4-1301(1)(a), (b). Colorado law defines “[d]riving under the influence” (DUI) as consuming sufficient alcohol or drugs to affect the person to a degree that the person “is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” Colo.Rev.Stat. § 42-4-1301(1)(f). The offense of DWAI is dеfined as consuming sufficient alcohol or drugs that affect the person “to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” Colo.Rev.Stat. § 42-4-1301(1)(g). DWAI is a lesser included offense of DUI. Thompson v. People,
{27} In New Mexico, driving under the influence of intoxicating liquor is prohibited in two ways. A person can commit a “per se” violation of the DWI statute by driving a vehicle while having a BAC of 0.08 or more. § 66-8-102(C)(1). In the alternаtive, “[i]t is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” § 66-8-102(A). A person is “under the influence” of intoxicating liquor if the person “was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public.” UJI 14-4501 NMRA; see State v. Neal,
{28} Focusing on the elements, the statutes are equivalent. The offense of driving under the influence, Section 66-8-102(A), addressed by our case law and jury instructions, is almost identical to the offense of DWAI in Colorado. See Colo.Rev.Stat. § 42-4-1301(1)(b), (g). Both statutes prohibit driving a vehicle while impaired to the slightest degree.
{29} The statutes are also equivalent under the test for equivalency described in Bolden. According to Bolden, an offense is equivalent if its elements are substantially identical in nature and definition when compared to each other. See
{30} Disregarding the similarity between the two statutes, Defendant argues that the Colorado DWAI statute is not equivalent to New Mexico’s DWI statute because the Colorado statute contains presumptions that the New Mexico statute does not. Defendant asserts that the presumptions that exist under Colorado law constitute a different element not present in the New Mexico offense. We therefore examine those presumptions.
{31} In addition to defining DWAI as prohibiting impairment to the slightest degree, the Colorado statute in effect at the time Defendant committed his offense provided that the amount of alcohol in a defendant’s blood or breath “shall give rise” to certain presumptions. See Colo.Rev.Stat. § 42-4-1202(2). The statute provided that a BAC in excess of 0.05 but less than 0.10 “shall give rise to the presumption that the defendant’s ability to operate a vehicle was impaired.” Colo.Rev.Stat. § 42-4-1202(2)(b). The statute further provided in the same subsection that these presumptions “shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not his ability to operate a vehicle was impaired by the consumption of alcohol.” Colo.Rev.Stat. § 42-4-1202(2)(d).
{32} In Barnes v. People,
{33} Similarly, Section 66-8-102(A) proscribes driving “under the influence.” Blood or breath alcohol is not an element of the crime. As in Colorado, per se DWI is a separate crime. See Colo.Rev.Stat. § 42-4-1301(2)(a); § 66-8-102(0(1). Thus, evidence of blood or breath alcohol is not necessary in proving DWAI in Colorado, nor is it necessary to prove DWI in New Mexico under Section 66-8-102(A). Under New Mexico law, a BAC of 0.05 but less than 0.08 does not give rise to a presumption that a person was or was not under the influence of intoxicating liquor. NMSA 1978, § 66-8-110(B)(2)(a) (2003) (amended 2007). However, “the amount of alcohol in the persons’s blood or breath may be considered with other competеnt evidence in determining whether the person was under the influence of intoxicating liquor[.]” § 66-8-110(B)(2)(b); § 66-8-110(A) (providing that the results of blood or breath alcohol tests may be introduced into evidence). Thus, in both states, a BAC of more than 0.05 and less than 0.08 may be used as evidence of being under the influence of intoxicating liquor. Accordingly, a defendant’s BAC is an evidentiary means of proving impairment, but it is not necessarily an element of the crime.
{34} Under these circumstances, we disagree with Defendant’s contention that the existence of presumptions in the Colorado statute at the time of Defendant’s DWAI requires us to find that the statutes are not equivalent. Contrary to Defendant’s assertion, DWAI is not a per se crime based on an alcohol percentage in a defendant’s blood or breath. It is instead a crime defined by the element of impairment.
{35} We note that other courts comparing DWAI statutes with DWI statutes have focused on the degree of impairment in determining whether statutes are equivalent. In People v. Crane,
{36} For similar reasons, the Montana Supreme Court reached the same conclusion in State v. McNally,
{37} In contrast to California, Montana, and Pennsylvania, the New Mexico Legislature has defined driving under the influence more broadly. In other states that also define driving under the influence more broadly, courts have found that DWAI statutes can be used as prior convictions for sentencing repeat offenders. See, e.g., McAdam v. State,
{38} Defendant asserts that we should not rely on eases that have upheld the use of various DWAI offenses as prior convictions, and argues that the courts in these states either did not engage in an equivalency analysis or used a lesser standard of “substantially similar” or “substantially equivalent.” To the extent that Defendant argues that a DWAI statute must be identical to a DWI statute to be equivalent, we disagree. As the cases we have cited indicate, the critical factor for a court to determine is whether the elements are equivalent. In particular, the focus must be on the degree of impairment prohibited by the statute. See Parisi,
{39} Defendant, in effect, asserts that the test for equivalency must be even broader than an inquiry into the elements. Defendant argues that an equivalency test must take into consideration whether the conduct for which Defendant was convicted in another state would be prohibited under our law. Pointing once again to the permissible inferences allowed under Colorado law, Defendant contends that a defendant in Colorado can be convicted based on a presumption arising at a BAC of 0.051, while a defendant in New Mexico is not subject to the same presumption. Thus, in Dеfendant’s view, because the Colorado statute punishes conduct that would not necessarily be a crime in New Mexico, the potential exists for enhancement based on facts that could result in an acquittal in New Mexico.
{40} For several reasons, we are not persuaded by Defendant’s argument. First, we note that our statute only requires that a statute from another jurisdiction be equivalent and prescribe penalties. See § 66-8-102(Q). For the proposition that an equivalency test must take into consideration whether the conduct for which a defendant was convicted would be prohibited in New Mexico, Defendant again relies on Crane,
{41} Moreover, Defendant has given us no reason to doubt whether his DWAI conviction from Colorado would be a crime under Nеw Mexico law if committed in New Mexico. While Defendant argues that he could have been convicted in Colorado on facts that would not result in a conviction under New Mexico law, such as having a 0.051 BAC, we find this suggestion completely speculative. Defendant does not challenge his actual conviction in Colorado on grounds that it was based on a certain BAC without other evidence of impairment. Defendant does not argue that he would not have been convicted in New Mexico for the same conduct for which he was convicted in Colorado. Nothing in the record indicates otherwise. While Colorado may have different evidentiary standards with respect to whether a person is impaired, the elements are the sаme, which if proven in New Mexico would justify a conviction for the offense of DWI.
{42} In reaching this conclusion, we recognize that Defendant believes the burden should be on the State to ensure that the conduct underlying his Colorado conviction would meet all the elements of the New Mexico offense. To support this argument, Defendant quotes the following from Crane:
If the statutory definition of the crime in the foreign jurisdiction contains all of the necessary elements to meet the California definition, the inquiry ends. If the statutory definition of the crime in the foreign jurisdiction does not contain the necessary elements of the California offense, the court may consider evidence found within the record of the foreign conviction in determining whether the underlying conduct would have constituted a qualifying offense if committed in California, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation. Where the record presented at trial does not competently disclose the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.
{43} Both statutes at issue here require impairment to the slightest degree. Thus, the Colorado offense of DWAI is equivalent to the New Mexico offense of DWI under Section 66-8-102(A). We therefore hold that the district court properly enhanced Defendant’s DWI conviction based in part on a prior Colorado conviction.
CONCLUSION
{44} We affirm Defendant’s conviction for felony DWI based on his fourth offense.
{45} IT IS SO ORDERED.