Misperceptions about DWI Sentencing

By Linda Atkinson
Executive Director
DWI Resource Center
latkinson@dwirc.org

Career drinking drivers……way too many of them are out there.

Over the years I have analyzed sentencing data, observed sentencings in the courtrooms and performed many case studies. I believe there has always been a misperception among the general public about the sentences DWI offenders receive versus what sentences could actually be given according to the current law.

A (true) first DWI offense (non-aggravated) allows up to 90 days in jail and up to a $500 fine, which are never given in our courts, rather the most common sentence is just the mandatory sanctions of DWI School, ignition interlock (and that might not happen If the offender says he doesn’t have a car or won’t be driving), alcohol screening, and 24 of hours community service.

If the offender is actually convicted of an aggravated 1^st offense there is a mandatory 48 hours jail, however, the majority of DWI (true) 1^st offenders are pled down to non-aggravated and no jail other than time in jail when first arrested is served. The law also mandates 48 hours jail time if the offender fails to complete all sanctions, again, in practice this does not happen as it should. The one court where I observed the judges actually imposing the 48 hours jail for failure to complete the sentence was the Santa Fe magistrate court – very impressive. I just wish ALL the courts followed suit.

With a DWI second offense (non-aggravated) the law allows up to 364 days in jail and a $1,000 fine. And once again the most common sentence will be just the mandatory minimum sanctions required by law: four days in jail, a $500 fine, alcohol screening and treatment, 48 hours of community service, 2 years using a ignition interlock (and that might not happen If the offender says he doesn’t have a car or won’t be driving). If an offender is convicted of an aggravated 2^nd offense there is an additional mandatory four days jail time. If the offender fails to complete the sentence there is to be a mandatory seven days.

Case Study of a ‘Career Drinking Driver’

 Let’s examine the case of F. Q., who, according to his driver’s license was a Hobbs resident for all the DWI incidents researched and listed below:

• 1^st arrest,  Santa Fe,  April 28, 1989          Municipal Court
  • No disposition info.
• 2^nd arrest,  Santa Fe,  December 24, 1998  Municipal Court
  • Conviction, (Sentence unknown – assume 1^st offender program)
• 3^rd arrest,  Santa Fe, February 26, 2000[1]    Municipal Court
  • No disposition info
• 4^th arrest,Grants,  January 6, 2004    Magistrate Court
  • Pled to DWI 1^st conviction, BAC .19, mandatory minimum sanctions imposed, did not complete 24 hrs. CS or install ignition interlock, court lost jurisdiction; no penalties for non-compliance.
• 5^th arrest,Grants, December 26, 2007  Magistrate Court
  • Pled to non-aggravated DWI 3^rd conviction, BAC .27, Mandatory minimum sanctions imposed
• 6^th arrest,Grants, January 12, 2008      Municipal Court
  • Pled to DWI conviction, sentence to be served concurrent with his conviction on the non-aggravated 3^rd DWI (see above DWI 5^th)
• 7^th arrest,Hobbs, October 17, 2009      Municipal Court
  • Pled to DWI (unknown to which level) sentence (unknown)
• 8^th arrest,Hobbs, November 30, 2009   District Court
  • Pled to DWI 4^th conviction, BAC .32, sentenced to 18 months in DOC.

Prior to his 5^th DWI arrest and conviction, it appears no significant sanctions were imposed (4 days jail time and a $500 fine on his 4^th arrest, yet non-compliant on two of the other sanctions imposed). In his 6^th DWI arrest, the court basically ‘combined’ the sentence with the 5^th DWI arrest judgment and the sentence was to run concurrent. On March 10, 2009 he “met all obligations” (as noted in the (nmcourts.gov) website case look up).  Mr. Q evidently could not curtail his drinking and driving. He again is arrested on Oct. 17, 2009 in Hobbs and cited into the Municipal court and convicted on Nov. 16, 2009. This author could not ascertain the sentence, but it is very clear that he was out drinking and driving, yet again, as he was arrested on Nov. 30, 2009 by a Lea County Sheriff’s deputy. He is charged with his DWI 6^th offense and pleads guilty to a 4^th offense DWI on April 15, 2010 in District Court. Q is sentenced to 18 months confinement (given 130 days credit for time served prior to sentencing), one year of parole after release, pay various fees, ignition interlock for life (the mandatory minimums of screening and treatment did not appear to be ordered).  As of this report date (3/2010), Mr. Q had served his incarceration (in the Department of Corrections(DOC) – inmates earn meritorious deductions – approx. one day served is equal to one day off sentence) and is currently under the supervision of the DOC, Parole division in Hobbs, where he presumably is residing.

There will be many more of these cases in the weeks to come.

If you always do what you always did, you always get what you always got. (Anon)