{ "id": 1561283, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Alfred Ray HALL, Defendant-Appellant", "name_abbreviation": "State v. Hall", "decision_date": "1995-01-19", "docket_number": "No. 15873", "first_page": "707", "last_page": "710", "citations": [ { "type": "official", "cite": "119 N.M. 707" }, { "type": "parallel", "cite": "895 P.2d 229" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "108 N.M. 633", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592852 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "634" }, { "page": "1253" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0633-01" ] }, { "cite": "675 P.2d 421", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "opinion_index": 0 }, { "cite": "100 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "year": 1984, "opinion_index": 0 }, { "cite": "100 N.M. 694", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588669 ], "weight": 2, "pin_cites": [ { "page": "697" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0694-01" ] }, { "cite": "432 U.S. 282", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178615 ], "weight": 8, "year": 1977, "pin_cites": [ { "page": "298" }, { "page": "2300" }, { "page": "298" }, { "page": "2300-01" } ], "opinion_index": 0, "case_paths": [ "/us/432/0282-01" ] }, { "cite": "107 L.Ed.2d 79", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "110 S.Ct. 118", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1989, "opinion_index": 0 }, { "cite": "493 U.S. 837", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11374689, 11374404, 11374565, 11374790, 11374342, 11374857, 11374249, 11374636, 11374189, 11374286, 11374000, 11373936, 11374131, 11374484, 11374073 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/493/0837-13", "/us/493/0837-09", "/us/493/0837-11", "/us/493/0837-14", "/us/493/0837-08", "/us/493/0837-15", "/us/493/0837-06", "/us/493/0837-12", "/us/493/0837-05", "/us/493/0837-07", "/us/493/0837-02", "/us/493/0837-01", "/us/493/0837-04", "/us/493/0837-10", "/us/493/0837-03" ] }, { "cite": "875 F.2d 681", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10532744 ], "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/f2d/875/0681-01" ] }, { "cite": "96 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577388 ], "weight": 2, "pin_cites": [ { "page": "353" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0352-01" ] }, { "cite": "1 L.Ed. 648", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 11738091 ], "year": 1798, "opinion_index": 0, "case_paths": [ "/us/3/0386-01" ] }, { "cite": "378 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166404 ], "weight": 10, "year": 1964, "pin_cites": [ { "page": "353", "parenthetical": "quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)" }, { "page": "1702", "parenthetical": "quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)" }, { "parenthetical": "quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)" }, { "page": "349" }, { "page": "1700" }, { "page": "361" }, { "page": "1706" }, { "page": "361" }, { "page": "1706-07" } ], "opinion_index": 0, "case_paths": [ "/us/378/0347-01" ] }, { "cite": "111 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715049 ], "weight": 10, "pin_cites": [ { "page": "300" }, { "page": "1119" }, { "page": "1117" }, { "page": "300" }, { "page": "1119" }, { "page": "300" }, { "page": "1119", "parenthetical": "Due Process Clause prevents retroactive applications of changed construction of statute" }, { "page": "299" }, { "page": "1118" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0297-01" ] }, { "cite": "113 N.M. 121", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723242 ], "weight": 10, "pin_cites": [ { "page": "123-26" }, { "page": "923-26" }, { "page": "122" }, { "page": "922" }, { "page": "126" }, { "page": "926" }, { "page": "128" }, { "page": "928", "parenthetical": "Chavez, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0121-01" ] } ], "analysis": { "cardinality": 529, "char_count": 8999, "ocr_confidence": 0.73, "pagerank": { "raw": 9.337365704722762e-08, "percentile": 0.5136172031651266 }, "sha256": "f2901f5e0661873c76c5dbc5e388217eedcdb2e709c728bb5f1340980dd2fe92", "simhash": "1:f506f02e2428fabf", "word_count": 1472 }, "last_updated": "2023-07-14T22:42:52.429175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and BLACK, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Alfred Ray HALL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\nDefendant pled guilty to driving while under the influence of intoxicating liquor (DWI). The judgment appealed from was filed on September 28, 1994. The notice of appeal was timely filed on October 4, 1994, and the docketing statement was timely filed on October 6, 1994. Defendant appeals the enhancement of his sentence pursuant to his conviction for DWI. The calendar notice proposed summary affirmance. Defendant has responded with a timely memorandum in opposition which was filed December 5 pursuant to an extension of time granted by this Court. We are not persuaded by Defendant\u2019s memorandum and therefore affirm.\nFACTS\nThe facts giving rise to the issue raised on appeal are uncontested. Defendant was charged with DWI under NMSA 1978, Section 66-8-102 (Repl.Pamp.1994), based on an incident that occurred on June 17,1994. Defendant was given notice that the State would seek to enhance the charge of DWI pursuant to the 1993 amendment to Section 66-8-102 (the new DWI statute), where Defendant could be found guilty of a fourth degree felony. Defendant admitted to the charge of DWI, but objected to use of previous DWI convictions to enhance his sentence. At the sentencing phase, the State introduced evidence of three prior DWI convictions with proper showing of counsel or waiver.\n-DISCUSSION\nDefendant contends that the words \u201cunder this section\u201d without more, limit the State\u2019s use of prior convictions; he can only be punished under Subsection E of the amended DWI statute, because he has only one conviction \u201cunder this section.\u201d Defendant cites State v. Russell, 113 N.M. 121, 823 P.2d 921 (Ct.App.1991), to support his interpretation of \u201cunder this section.\u201d\nIn Russell, this Court discussed an interpretation of \u201cunder this section\u201d in the context of DWI law. Id. at 123-26, 823 P.2d at 923-26. Russell involved three previous DWI convictions under a municipal ordinance and a fourth conviction under Section 66-8-102. Id. at 122, 823 P.2d at 922. Although Russell held that the three convictions under the municipal ordinance were valid and could be used to distinguish between a first offender and a subsequent offender, this Court was not persuaded that these previous convictions could be used as offenses under Section 66-8-102 for purposes of imposing a mandatory jail sentence not to be suspended, deferred, or taken under advisement for a fourth or subsequent conviction. Id. at 126, 823 P.2d at 926; see also 1988 N.M. Laws, ch. 56, \u00a7 8.\nThe ease at present is different. We note that the legislature enacted a provision in the new DWI statute specifically stating that DWI convictions under a municipal ordinance can be used to determine whether a DWI conviction is a second or subsequent conviction under the new DWI statute (emphasis added). See NMSA 1978, \u00a7 66-8-102(J) (Cum.Supp.1993). The term \u201csubsequent offender\u201d was added to the new DWI statute and is defined as someone who has been convicted of DWI under a federal law, state statute, or municipal ordinance. Russell, 113 N.M. at 128, 823 P.2d at 928 (Chavez, J., dissenting). If previous convictions under DWI municipal ordinances can be used for enhancement purposes, then it clearly follows that previous convictions under the state DWI statute can be used under the new DWI statute for enhancement purposes. Accordingly, we hold that the term \u201cunder this section\u201d means under Section 66-8-102.\nDefendant also argues that the enhancement of his sentence under the new DWI statute constitutes an ex post facto application of the amendments to the DWI statute and is therefore a denial of due process. \u201cAn ex post facto law has been defined ... as one \u2018that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,\u2019 or \u2018that aggravates a crime, or makes it greater than it was, when committed.\u2019\u201d State v. Alderette, 111 N.M. 297, 300, 804 P.2d 1116, 1119 (Ct.App.1990) (quoting Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964) (quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798))).\nStatutes imposing additional punishments upon persons previously convicted of crimes do not punish habitual criminals for their earlier offenses, but merely increase the penalty for repetition of further acts of criminal conduct. State v. Oglesby, 96 N.M. 352, 353, 630 P.2d 304, 305 (Ct.App.1981). A sentence that is statutorily enhanced because of a predicate conviction, even though occurring before the enhancement of the penalty provisions, does not violate the constitutional prohibitions against ex post facto laws. United States v. Ahumada-Avalos, 875 F.2d 681, 684 (9th Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989).\nDefendant relies on Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), and Bouie. In Dobbert, the United States Supreme Court examined whether a new criminal statute violated constitutional prohibitions against ex post facto laws. Dobbert, 432 U.S. at 298, 97 S.Ct. at 2300. The Court held that \u201cthe existence of the statute served as an \u2018operative fact\u2019 to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted\u201d and was \u201cin sufficient compliance with the ex post facto provision of the United States Constitution.\u201d Id. In Bouie, the United States Supreme Court examined whether the construction of a criminal statute violated defendants\u2019 due process rights. Bouie, 378 U.S. at 349, 84 S.Ct. at 1700. The Court, in holding that the construction of the criminal statute violated the Due Process Clause, stated that the criminal statute provided \u201cno fair warning of the criminal prohibition under which [the defendants] now stand convicted.\u201d Id. at 361, 84 S.Ct. at 1706.\nIn Alderette, this Court held that due process prevented retroactive application of the changed construction to a statute concerning escapes from jail. Id., Ill N.M. at 298, 804 P.2d at 1117. The change involved construing a statute so as to encompass escapes by persons held on criminal charges as well as those persons held on civil contempt charges. Id.\nIn the present case there was no such changed construction of the DWI statute. Under the amendments to the DWI statute, if a person is convicted of a fourth offense, that person is guilty of a fourth degree felony punishable by a jail term of not less than six months which shall not be suspended or deferred or taken under advisement. See \u00a7 66-8-102(G). This provision is also contained in the previous enactment of Section 66-8-102(E)(2) (Cum.Supp.1993). Defendant\u2019s conduct under the previous DWI statute was criminal, and remains criminal under the new DWI statute. See Alderette, 111 N.M. at 300, 804 P.2d at 1119.\nSince Defendant\u2019s actions occurred six months after the new DWI statute was enacted, Defendant had \u201cfair warning\u201d that if he violated the new DWI statute his previous convictions for DWI could be used to enhance his sentence. See Dobbert, 432 U.S. at 298, 97 S.Ct. at 2300-01; cf. Bouie, 378 U.S. at 361, 84 S.Ct. at 1706-07. Therefore, Defendant was not denied due process. Cf. Alderette, 111 N.M. at 300, 804 P.2d at 1119 (Due Process Clause prevents retroactive applications of changed construction of statute).\nDefendant attempts to argue that he must be punished as a \u201cfirst offender\u201d under Subsection E of the new DWI statute, because he has only one conviction \u201cunder this section.\u201d See \u00a7 66-8-102(E). We disagree, and believe that the legislature intended that the new DWI statute should be read as a whole. See State v. Sinyard, 100 N.M. 694, 697, 675 P.2d 426, 429 (Ct.App.1983) (each section or part should be construed in connection with every other part or section and read as a whole), cert. denied, 100 N.M. 689, 675 P.2d 421 (1984). Moreover, to adopt Defendant\u2019s interpretation of the statute would defeat its intended purpose, achieve an absurd result by providing a \u201cDWI amnesty\u201d for those convicted under previous enactments of the DWI statute, and contravene the public policy behind the DWI statute, which is to get drunk drivers off the road. See Alderette, 111 N.M. at 299, 804 P.2d at 1118; Incorporated County of Los Alamos v. Johnson, 108 N.M. 633, 634, 776 P.2d 1252, 1253 (1989).\nWe hold that the trial court\u2019s enhancement of Defendant\u2019s sentence neither constituted an ex post facto application of the new DWI statute nor a denial of Defendant\u2019s due process rights. We therefore affirm the enhancement of Defendant\u2019s sentence, and the judgment and sentence entered below.\nIT IS SO ORDERED.\nDONNELLY and BLACK, JJ., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.", "Sammy J. Quintana, Chief Public Defender, Rita LaLumia, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "895 P.2d 229\nSTATE of New Mexico, Plaintiff-Appellee, v. Alfred Ray HALL, Defendant-Appellant.\nNo. 15873.\nCourt of Appeals of New Mexico.\nJan. 19, 1995.\nCertiorari Denied Feb. 27, 1995.\nTom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.\nSammy J. Quintana, Chief Public Defender, Rita LaLumia, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0707-01", "first_page_order": 799, "last_page_order": 802 }