State v. LewisState v. Lewis
{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
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, thе 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
{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
DISCUSSION
{4} Defendant raises two issues on appeal: (1) whether
{5} Defendant first contends that the Colorado offense of DWAI cannot be used to enhance his DWI penalty under
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,
{9} In
{10} The specific penalty provision at issue in this appeal is
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 intoxicatingliquor or drugs, shall be deemed to be a conviction pursuant to this section for purposes of determining whether a conviсtion is a second or subsequent conviction.
{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
{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
{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
{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
{15} In Nelson, we rejected the State’s argument. Id. We determined that the reference to “subsequent offender,” which was not found in
{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
[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 conviction.
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 amendеd 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
{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 at issue in Nelson was to change the words “under this section” to “pursuant to this section” in reference to the
{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 case, including, among other things, the fact that the recommended resolutions and the court’s acceptance of it wаs 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
{20} We remain persuaded that by amending
{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,
{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
{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
{24} For the purpose of this equivalency discussion, we note that the parties rely on the current version of Colorado’s DWAI statute,
{25} Turning to our statute,
{26} In Colorado, it is a misdemeanor to drive a vehicle while undеr the influence of alcohol or drugs or while impaired by alcohol or drugs.
{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.
{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} Disrеgarding 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
{32} In Barnes v. People,
{33} Similarly,
{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 morе 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 Defendant’s view, because the Colorado statute punishes сonduct 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 undеr New 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 imрaired, the elements are the same, 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, thecourt 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.