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Armijo v. State2/2/2001
Petitioner-Appellant (Driver) appeals from the revocation of his driving privileges for a period of ten years pursuant to NMSA 1978, § 66-5-5(D) (1999). The issue on appeal is whether the Motor Vehicle Division (MVD) erred in applying Section 66-5-5(D) against Driver, given the form of the negotiated plea agreement. For the reasons discussed herein, we affirm.
FACTS AND PROCEDURAL POSTURE
Driver has been convicted of driving while intoxicated (DWI) on three separate occasions. The third conviction, the subject of this appeal, was pursuant to a plea and disposition agreement by which Driver pleaded guilty to DWI, "first offense pursuant to Section 66-8-102 . . . for all lawful purposes." The metropolitan court accepted the plea and entered the judgment and sentence convicting Driver of DWI, "1st offense," on February 23, 1998.
Thereafter, based on the existence of the three DWI convictions, MVD revoked Driver's license to drive. Driver challenged the revocation, and the MVD Director sustained the revocation, pursuant to Section 66-5-5(D).
Driver then petitioned the district court for review of MVD's decision. The district court concluded that Driver had been convicted of DWI three times within a ten-year period, as contemplated by Section 66-5-5(D), and therefore affirmed. In so ruling, the district court specifically determined that the "first offense" designation appearing in the plea agreement and in the metropolitan court's judgment and sentence did not preclude MVD from revoking Driver's license, because the application of Section 66-5-5(D) depends upon the number of convictions, rather than their sequence or status, and because no intent to preserve Driver's driving privileges is evinced by the relevant documents. This appeal followed.
DISCUSSION
Driver argues that the "first offense . . . for all lawful purposes" designation appearing in the plea agreement and the judgment and sentence should preclude MVD from revoking his license pursuant to Section 66-5-5(D), as a matter of due process. The issue presents a mixed question of fact and law. See State v. Gaede, 2000-NMCA-004, 7, 128 N.M. 559, 994 P.2d 1177. In determining whether Driver's due process rights have been violated, we conduct an independent review of the record and the applicable law. See id.
This Court has addressed similar circumstances in two recent cases. In Collyer v. State Taxation & Revenue Department, 1996-NMCA-029, 121 N.M. 477, 913 P.2d 665, Collyer challenged the revocation of his license pursuant to NMSA 1978, § 66-5-29(A)(3) (1993), which provides for the mandatory revocation of the license of any "subsequent offender" under the Motor Vehicle Code. Because Collyer's second conviction was entered pursuant to a plea agreement whereby the conviction was adjudicated as a "first offense" for the acknowledged purpose of preserving Collyer's driving privileges, this Court held that MVD's revocation of Collyer's license was in disregard of the terms of the judgment and sentence, and therefore reversed. See Collyer, 1996-NMCA-029, 4-7. Importantly, in Collyer, the only source of statutory authority for a license revocation of a person twice convicted of DWI was Section 66-5-29(A)(3). We also held that the district attorney had the authority to bind MVD by the plea agreement, pursuant to which the State expressly agreed not to revoke Collyer's license. See Collyer, 1996-NMCA-029, 8-12.
In the case of Gaede, 2000-NMCA-004, the defendant challenged his sentencing as a fourth-time DWI offender pursuant to NMSA 1978, § 66-8-102(G) (1997). He asserted with regard to his first conviction that the sentencing judg
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