119 N.M. 707, 895 P.2d 229 (N.M. Ct. App. 1995)
In June 1994, the defendant was charged with driving while under the influence of intoxicating liquor under NMSA 1978, Section 66-8-102, based on an incident that occurred on June 17, 1994.1 The State gave notice that it would seek to enhance the charge pursuant to the 1993 amendment to the statute so that the defendant could be found guilty of a fourth degree felony.2 The defendant admitted to the DWI charge but objected to the use of previous convictions to enhance his sentence.3
At the sentencing phase, the State introduced evidence of three prior DWI convictions along with a proper showing of counsel or waiver in those cases.4 The defendant contended that he could only be punished as a first offender under Subsection E of the amended statute because he had only one conviction under the current version.
The judgment appealed from was filed on September 28, 1994.5 The notice of appeal was filed on October 4, 1994, and the docketing statement was filed on October 6, 1994.6 The Court of Appeals of New Mexico issued a calendar notice proposing summary affirmance.7 The defendant responded with a memorandum in opposition filed December 5, 1994, after receiving an extension of time.8
Whether the phrase 'under this section' in the 1993 amendments to NMSA 1978, Section 66-8-102 limits the use of prior DWI convictions for sentence enhancement to only those obtained under the amended statute?9
The legislature intended NMSA 1978, Section 66-8-102 to be read as a whole, such that prior DWI convictions under previous enactments of the state statute may be used to enhance a sentence under the 1993 amendments, consistent with the provision allowing municipal ordinance convictions to be used for determining subsequent offenses.10
No. Defendant admitted to the DWI charge based on the June 17, 1994 incident but objected to enhancement using prior convictions. The State introduced evidence of three prior DWI convictions with proper showing of counsel or waiver. Because the statute specifically allows municipal convictions to count as subsequent offenses, it follows that prior convictions under the state DWI statute can be used for enhancement to a fourth degree felony under the amended provisions.11
The phrase 'under this section' does not limit the use of prior DWI convictions to only those obtained under the amended statute.12
Whether enhancing a sentence for a DWI offense committed after the 1993 amendments based on pre-amendment convictions violates ex post facto or due process protections?13
A sentence enhanced because of a predicate conviction occurring before the enhancement of the penalty provisions does not violate the constitutional prohibitions against ex post facto laws or due process. Such statutes increase the penalty for repetition of criminal conduct. The defendant had fair warning that prior convictions could be used for enhancement.14
No. Defendant's actions occurred six months after the new DWI statute was enacted, providing fair warning that previous convictions could enhance the sentence. Defendant's conduct was criminal under the previous DWI statute and remains criminal under the new statute, with no changed construction of the statute. The enhancement punishes the current offense more severely due to repetition rather than punishing the earlier offenses.15
Enhancing the defendant's sentence based on pre-amendment convictions does not violate ex post facto or due process protections.16