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State v. Hernandez6/22/2001
There are no comparable provisions in the general criminal sentencing statute or in the habitual offender act. See NMSA 1978, § 31-18-15 (1999). Since 1990, NMSA 1978, § 31-18-22 (1990) has provided for screening and treatment in a "special incarceration alternative program" run and controlled by the corrections department. Participation in the program is limited, however, and is not designed to reach every convicted criminal the way the DWI screening is intended to affect all DWI offenders. Thus, the deterrence and reform theory of the Linam/Koonsman rule is not undercut by the operation of Section 31-18-22. In contrast, the comprehensive-if not effective-reach of DWI screening and treatment indicates that reform is dealt with directly, obviating any need to import the Linam/Koonsman approach to the DWI arena.
Finally, there is another feature that distinguishes the DWI progressive punishment schema from the habitual offender act. Enhancement under the habitual offender act is a set time ranging from one to eight years imposed over and above the sentence for the principal crime. An offender thus can receive an habitual sentence which is much more severe than the sentence for principal crime committed. For example, a fourth degree felony could result in a suspended sentence of eighteen months for the principal crime and an eight year habitual offender enhancement which "shall not be suspended or deferred." Section 31-18-17(D) and Section 31-18-15(A)(6). In this sense, the habitual offender statute is highly punitive and the rationale of Linam/Koonsman makes sense.
The DWI sentencing schema simply does not carry the same punitive baggage. DWI sentences based on repeat convictions do not impose a separate sentence on top of a basic sentence. Instead, repetition of offense is accounted for by increasing the basic punishment per numbered conviction. The Linam/Koonsman idea of punishing separately for the failure to reform simply does not fit easily into the DWI sentencing format.
Given these differences between the DWI statute and the habitual offender act, and heeding Judge Learned Hand's suggestion to "put ourselves in the place of those who uttered the words," we hold that the legislature did not intend the Linam/Koonsman rule to apply to DWI sentencing. Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944).
Defendant urges us to apply the rule of lenity. We decline to do so because we do not perceive in the statute the sort of "insurmountable ambiguity" normally required for application of the rule. State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994).
CONCLUSION
For the reasons stated, we affirm Defendant's conviction for felony fourth degree DWI.
IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
M. CHRISTINA ARMIJO, Judge
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