The Christmas and New Year’s Holiday Season always brings with it a rise and calls to crack down on DWI offenders. 2021 has been no different. Since Christmas Eve, there have been 14 DWI’s in the metro alone, but frankly that is probably one of the lowest figures in years. In its heyday when the DWI unit was fully up and running, DWI check points would produce hundreds of citations.
Close to 1,800 DWI citations have been given out this year in the Albuquerque metro area . Many were first time offenses, but many were repeat offenders. The blunt truth is, APD is not doing its job on DWI enforcement and it is no longer a priority and neither are arrests in general. On of the biggest factors for this is that the number of sworn police patrolling the streets of Albuquerque is down by the hundreds.
A few of the more notable DWI arrests from this past year include 49-year-old Marlene Whitegoat who was driving 103 mph per hour down I-40 in May, and she was arrested for her 5th DWI offense. 59-year-old Steven Casias had 7 DWI arrests with the latest happening in March when he hit a concrete pillar. 42-year-old Jennifer Whitey has her 7th DWI arrests, with four happening within the past two years and with cases dismissed.
When you look at the outcome of Whitey’s case, one of the charges was dismissed because the officer failed to appear in court. Officer’s failing to appear in court has been a chronic problem for years, if not decades, where DWI cases and other types of cases are dismissed. The sworn police officer shortage has a lot do “failure to appear”.
People who have lost loved one’s in DWI tragedies are once again demanding changes to DWI laws. Jackie Copeline, whose father was killed by a repeat drunk driver offender when she was 7 years old has started a petition asking for stricter DWI enforcement and treatment laws. Copland had this to say:
Growing up without a dad is hard. … It has an effect on anybody. … I don’t think that DWI laws are being enforced. People are getting the minimum sentence, and I don’t think that’s okay.”
CHRONIC PROBLEM
New Mexico continues to rank among the worst states for drunk driving. U.S. Drug Test Centers found New Mexico had 460 DWI arrests per 100,000 residents last year. That’s the sixth-worst rate in the country. The state has been in the top 10 every year since 2009. The Dakotas, Wyoming, North Carolina and Mississippi all ranked worse than New Mexico.
https://www.krqe.com/news/new-mexico/new-mexico-ranks-among-worst-states-for-drunk-driving/
NEW MEXICO LAW ON DWI CONVICTION SENTENCINGS
When you look into the sentencing for DWI conviction, your first DWI could land you a minimum of 2 days behind bars. With an 8th DWI conviction, you could be facing 10 years in jail, but that does not translate into people spending all of the time a person is sentenced to in jail.
Then there is the problem of people doing the time but not getting the drug and intervention treatment needed. Prominent criminal defense attorney Ahmad Assed called it “people falling through the cracks” and put it this way:
“We’ve been talking about this topic for decades and quite frankly we still find ourselves almost in the same position. … The mandatory sentences can be completed through an ankle bracelet process or home arrest rather than actually serving out their time at Bernalillo County at MDC. A lot of time you are dealing with a medical issue [that no one gets treatment.]”
CITY 2022 ADOPTED APD BUDGET CONTAINS TOTAL ARRESTS FOR 2019 AND 2020
The City’s 2022 adopted budget for APD on page 151 contains APD’s arrests statistics for 2019 and 2020. APD’s budget is called a “performance-based budget” because each department is required to submit statistics to justifying its budget. Arrest numbers for felonies, misdemeanors as well as DWI are revealed in the APD budgets.
APD statistics for the budget years of 2019 and 2020 reflect that APD is not doing its job of investigating and arresting people. APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%. Bookings at the jail have plummeted from 38,349 in 2010 to 17,734 in 2020. To have booking, there must be arrests, to have sentences, there must be convictions.
Following is the breakdown of arrest for the years 2019 and 2020 as gleaned from the city budget:
NUMBER OF DWI ARRESTS
2019: 1,788
2020: 1,230 (DOWN 26%)
NUMBER OF MISDEMEANOR ARRESTS
2019: 19,440
2020: 16,520 (DOWN 15%)
NUMBER OF FELONY ARRESTS
2019: 10,945
2020: 6,621 (DOWN 39.51%
TOTAL NUMBER OF ARRESTS FOR 2019: 32,173
TOTAL NUMBER OF ARREST FOR 2020: 24,371
DOWN 25%
(2022 APD Budget, page 151)
The link to the budget is here:
https://documents.cabq.gov/budget/fy-22-proposed-budget.pdf
NEW 911 PRIORITY CALL DISPATCH SYSTEM AN DWI
For decades, APD had a 3 priority 911 dispatch system. On March 7, 2019, APD announced a major change in the way it was dispatching police officers to 911 calls and expanded priority the list from 3 to 5 categories. Call priorities on the scale of 1 to 5 with 1 being the highest or most important type of call.
A major goal of the 5-priority call system is to determine what calls do and do not require a police officer. The goal was to reduce the number of 911 emergency calls for service responded to by APD sworn police. The addition of 2 new priority call types did in fact result in the desired goal of reducing the number of sworn dispatch but also resulted in fewer felony, misdemeanor and DWI arrests.
For the Fiscal Years of F/Y 14 to F/Y 20 the total number of 911 calls for service were:
FY/14 # of Calls for service: 518,553
FY/15 # of Calls for service: 518,751
FY/16 # of Calls for service: 547,854
FY/17 # of Calls for service: 564,610
FY/18 # of Calls for service: 580,303
FY/19 # of Calls for service: 543,574
FY/20 # of Calls for service: 524,286
The sure volume of calls for service are staggering and always cited by APD upper command as to why they are overburden but the raw numbers are easily misinterpreted. Without clarification, the raw statistics imply that sworn police were sent to every single call where arrests could be made. The numbers must be tempered with the actual number of dispatches of police and the number of sworn and that in turn ultimately result in arrests in 3 major categories of felony, misdemeanor and DWI.
For the Fiscal Years of F/Y 14 to F/Y 20 the total number of calls for service compared to arrests in each of the 3 major categories and the sworn police who were employed in all capacities and positions are as follows:
FY/14 # of Calls for service: 518,553
FY/14: Arrests: Felony 9,507, Misdemeanor 27,127, DWI 2,704,
FY/14: Total Sworn: 913
FY/15 # of Calls for service: 518,751
FY/15 Arrests: Felony 9,049, Misdemeanor 22,639, DWI 2,213,
FY/15 Total Sworn: 879
FY/16 # of Calls for service: 547,854
FY/16 Arrests: Felony 8,744, Misdemeanor 19,857, DWI 1,720
FY/16 Total Sworn: 833
FY/17 # of Calls for service: 564,610
FY/17 Arrests: Felony 9,527, Misdemeanor 18,562, DWI 1,338,
FY/17 Total Sworn: 870
FY/18 # of Calls for service: 580,303
FY/18 Arrests: Felony 11,257, Misdemeanor 19,923, DWI 1,403,
FY/18 Total Sworn: 941
FY/19 # of Calls for service: 543,574)
FY/19 Arrests: Felony 10,945, Misdemeanor 19,440, DWI 1,788,
FY/19Total Sworn: 924
FY/20 # of Calls for service: 524,286
FY/20 Arrests: Felony 6,621, Misdemeanor 16,520, DWI 1,230
FY/20 Total Sworn: 1,004
The links to the approved city budgets from 2007 to 2022 that contain the statistics can be found here:
https://www.cabq.gov/dfa/budget/annual-budget
There was a dramatic decline in the number arrests in 2019 to 2020, the same time when the new priority calls were added. APD felony arrests went down from 2019 to 2020 by 39.51% going down from 10,945 to 6,621. Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%. In 2019 APD had 924 full time police. In 2020, APD had 1,004 sworn police or 80 more sworn in 2020 than in 2019, yet arrests went down during the first year of the pandemic and response times went up.
NEW MEXICO CRIMINAL DWI LAW
It is Section 66-8-102 of the New Mexico statute that defines “driving under the influence of intoxicating liquor or drugs” as well as defining “aggravated driving under the influence of intoxicating liquor or drugs”. The statute also outlines the penalties that can be imposed by the courts.
The statute is as straight forward as it gets and states:
“It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.
“It is unlawful for a person who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state.”
“ It is unlawful for … a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person’s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle. … ”
“It is unlawful for a person to drive a commercial motor vehicle in this state if the person has an alcohol concentration of four one hundredths or more in the person’s blood or breath within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.”
AGGRAVATED DWI
The statute also defines “aggravated driving under the influence of intoxicating liquor or drugs” as:
“1) driving a vehicle in this state with an alcohol concentration of sixteen one hundredths or more in the driver’s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle;
(2) causing bodily injury to a human being as a result of the unlawful operation of a motor vehicle while driving under the influence of intoxicating liquor or drugs; or
(3) refusing to submit to chemical testing, as provided for in the Implied Consent Act and in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor or drugs.”
Eliminating the “lawyer speak” from the statute language Aggravated DWI can be charged under 3 circumstances:
1. When a person has a breath alcohol test (BAC) that reveals 0.16 percent or higher blood alcohol level.
2. When a person causes bodily harm to someone while Driving Under the Influence
3. When a person refuses to have a blood alcohol test.
The consequences of being convicted of Aggravated DWI in New Mexico and can be severe. In a nutshell the consequence can be as follows:
1st aggravated DWI/DUI offense: Mandatory 48 hours in jail
2nd aggravated DWI/DUI offense: Mandatory 8 days of jail time
3rd aggravated DWI/DUI offense: Mandatory minimum of 90 days in jail.
QUOTING THE LAW
The state statute for Aggravated DWI provides as follows:
“In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than 48 consecutive hours in jail. If an offender fails to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or fails to comply with any other condition of probation, the offender shall be sentenced to not less than an additional 48 consecutive hours in jail. Any jail sentence imposed for failure to complete … within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or for aggravated driving under the influence of intoxicating liquor or drugs shall not be suspended, deferred or taken under advisement.
On a first conviction … any time spent in jail for the offense prior to the conviction for that offense shall be credited to any term of imprisonment fixed by the court. A deferred sentence pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.
A second or third conviction … shall be punished … by imprisonment for not more than 364 days or by a fine of not more than one thousand dollars ($1,000), or both. If the sentence is suspended in whole or in part, the period of probation may extend beyond 1 year but shall not exceed 5 years.
“Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence:
(1) Upon a second conviction, an offender shall be sentenced to a jail term of not less than 96 consecutive hours, not less than 48 hours of community service and a fine of $500. In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than 96 consecutive hours. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional 7 consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.
(2) Upon a third conviction, an offender shall be sentenced to a jail term of not less than 30 consecutive days, not less than 96 hours of community service and a fine of $750. In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than 60 consecutive days. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional 60 consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.”
CRIMINAL PENALTIES PROVIDED
Following are the penalties for DWI upon conviction as outlined in the statute:
“A first conviction … shall be punished … by imprisonment for not more than 90 days or by a fine of not more than $500, or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond ninety days but shall not exceed one year.
Upon a first conviction … an offender shall be sentenced to not less than 24 hours of community service. In addition, the convicted offender may be required to pay a fine of $300. The convicted offender shall be ordered by the court to participate in and complete an [alcohol treatment] screening program [and ordered] to attend a driver rehabilitation program for alcohol or drugs, also known as a “DWI school”, approved by the bureau and also may be required to participate in other rehabilitative services as the court shall determine to be necessary.”
FELONY DWI
“A fourth or subsequent DWII charge … constitutes a felony. The charge depends on the number of prior valid convictions the prosecution can prove to the court. A felony DWI results in significant mandatory incarceration time and felony probation requirements. In a nutshell, the following penalties apply to felony DWI:
A DWI FOURTH conviction is a fourth-degree felony, with a mandatory minimum of six months imprisonment and a maximum sentence of 18 months
A DWI FIFTH conviction is also a fourth-degree felony. However, it carries a mandatory one year of imprisonment with a maximum of two years imprisonment.
A DWI SIXTH conviction is a third-degree felony, with a mandatory eighteen months of imprisonment with a maximum of thirty months.
A DWI SEVENTH conviction is also a third-degree felony. However, it carries a mandatory minimum of two years with a maximum of three years imprisonment.
A DWI EIGHTH or subsequent conviction is a second-degree felony, with a mandatory MINIMUM OF TEN YEARS incarceration and a maximum of twelve years.”
The state statute for Aggravated DWI provides as follows:
Upon a fourth conviction … an offender is guilty of a 4th degree felony and, shall be sentenced to a term of imprisonment of 18 months, 6 months of which shall not be suspended, deferred or taken under advisement.
Upon a fifth conviction pursuant to this section, an offender is guilty of a 4th degree felony and … shall be sentenced to a term of imprisonment of 2 years, one year of which shall not be suspended, deferred or taken under advisement.
Upon a sixth conviction pursuant to this section, an offender is guilty of a 3rd degree felony and shall be sentenced to a term of imprisonment of 30 months, eighteen months of which shall not be suspended, deferred or taken under advisement.
Upon a seventh conviction pursuant to this section, an offender is guilty of a 3rd degree felony and … shall be sentenced to a term of imprisonment of 3 years, two years of which shall not be suspended, deferred or taken under advisement.
Upon an eighth or subsequent conviction pursuant to this section, an offender is guilty of a 2nd degree felony and … shall be sentenced to a term of imprisonment of 12 years, 10 years of which shall not be suspended, deferred or taken under advisement.
Upon any conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program approved by the department of finance and administration and, if necessary, a treatment program approved by the court. The requirement imposed … shall not be suspended, deferred or taken under advisement.
Upon a second or third conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court:
(1) not less than a 28-day inpatient, residential or in-custody substance abuse treatment program approved by the court;
(2) not less than a 90-day outpatient treatment program approved by the court;
(3) a drug court program approved by the court; or
(4) any other substance abuse treatment program approved by the court.
The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.
Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender in its custody.
While the offender is on probation or parole under its supervision, the corrections department shall also provide substance abuse counseling and treatment to the offender or shall require the offender to obtain substance abuse counseling and treatment.
Upon a conviction pursuant to this section, an offender shall be required to obtain an ignition interlock license and have an ignition interlock device installed and operating on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the bureau to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. The offender shall operate only those vehicles equipped with ignition interlock devices for:
(1) a period of one year, for a first offender;
(2) a period of two years, for a second conviction pursuant to this section;
(3) a period of three years, for a third conviction pursuant to this section; or
(4) the remainder of the offender’s life, for a fourth or subsequent conviction pursuant to this section.
APPLICATION TO REMOVE IGNITION INTERLOCK
The state law also provides as follows:
“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 provided in this section and for restoration of a driver’s license.
A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the license; provided that the offender has not been subsequently convicted of driving a motor vehicle under the influence of intoxicating liquor or drugs. Good cause may include an alcohol screening and proof from the interlock vendor that the person has not had violations of the interlock device.
An offender who obtains an ignition interlock license and installs an ignition interlock device prior to conviction shall be given credit at sentencing for the time period the ignition interlock device has been in use.
In the case of a first, second or third offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.
A conviction pursuant to a municipal or county ordinance in New Mexico or a law of any other jurisdiction … [and] when that ordinance or law is equivalent to New Mexico law for driving under the influence of intoxicating liquor or drugs, and prescribes penalties for driving 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.
In addition to any other fine or fee that may be imposed pursuant to the conviction or other disposition of the offense under this section, the court may order the offender to pay the costs of any court-ordered screening and treatment programs.
… [I] f an offender’s sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation.”
https://law.justia.com/codes/new-mexico/2018/chapter-66/article-8/section-66-8-102/
LOSING YOUR DRIVER’S LICENSE
There is also a “civil side” to being convicted of DWI and it takes thethe form of losing your driver’s license and it is totally separate from criminal charge.
New Mexico has enacted an Implied Consent Act. Under the law, it is not a right but a privilege to be licensed to drive. As condition of being given a license to, a license driver is by law giving implied consent to be tested if stopped under the suspicion of driving while under the influence. If you refuse to take a breath test, or if your breath analyzer test is above the legal limit, the arresting officer is authorized to confiscate your license upon arrest. The arresting officer will provide a Notice of Revocation. The officer also sends the notice to the Motor Vehicle Division, which automatically revokes your driver’s license 20 days after your arrest.
AGE AFFECTING HOW LONG YOU LOSE DRIVER’S LICENSE
When your driver’s license is revoked for DWI, the length of time of license revocation will depend on your age and if you have previously had your license revoked.
Over 21 years of age with a blood alcohol at or above 0.08% results in the following:
1st offense: 6 months for failing a chemical test, or one year for refusing a chemical test
2nd or subsequent offense: One year for failing or refusing a chemical test
Under 21 years of age (at or above 0.02%):
1st and subsequent: One year for failing or refusing a blood alcohol test.
CONVICTION RESULTING IN REVOCATION
Under New Mexico law, if you are convicted of a DWI you can lose your license. The period for losing a license is also tied to criminal conviction history as follows
For a first offense, 1 year
For second offense, 2 years
For a third offense: 3 years
For a fourth or subsequent offense: permanent loss or lifetime.
The link to quoted source material is here:
https://www.granolaw.com/blog/what-are-dwi-or-dui-penalties-new-mexico/
COMMENTARY AND ANALYSIS
It is often said that incarceration and warehousing criminals is not the solution to bringing crime down and there is a need to solve the root causes of crime of poverty, drug addiction, and joblessness. That is true, but that does not mean the solution is simply not to arrest, convict and sentence criminals for crimes they have committed. As it stands in Albuquerque, APD is simply not getting the job done in the arrest category.
DWI in New Mexico has been a chronic problem for decades. It is understood when families who have been affected by DWI and who have lost a loved one and want to increase penalties and try do more. Year after year the New Mexico legislature tries and tries again to deal with DWI and the state is still has some of the highest DWI rates in the country.
Based on the statistics, and the declining number of DWI arrests, increasing the penalties is not likely going to solve much of anything. What the real problem is law enforcement failing to make arrests, then failing to convict and then imposing the maximum sentences under the law.
Unless laws are actually enforced, there is really not much going to happen in bringing down DWI rates as well as any other crime rates.