DWI: Mandatory jail for a first offense?

Governor Richardson recently let it be known that he'll seek to change existing law to make those convicted of DWI, driving while under the influence (first offense), face mandatory jail time. Here's my two cents:

First of all, prior to seeking such a severe penalty for a simple first offense, our legislature should focus on defining driving. Like I blogged about several months ago, New Mexico needs to define "driving" better in order to prosecute the offenders it is trying to target. Under our current law, you are considered driving for the purposes of our DWI statute if you have your keys near the ignition of your car and you are in the driver's seat. This is true if the car works or not, if you are asleep or not, and even if you sought to use your car as a tent to avoid driving while too intoxicated. I don't know what you all think, but I think I know what driving is, and sleeping in your car should never be considered driving. I can recount horror story after horror story about this issue, but will just recount one case: I represented a Mexican national (a single father) in a pro bono case that was charged with DWI. He walked fifteen steps outside of his studio apartment door and turned on the radio in his van to listen to a soccer game and drink a cold one. The neighbors called the cops, reporting of a suspicious person in a van. The client was arrested for DWI. Why was he listening to his radio in his van? His daughter had school the next morning and he didn't want to be too loud. Sad isn't it? Back to today's topic...

Secondly, studies generally show that an increase in penalties does not decrease the occurrences of a crime. The exception being if the crime carries a drastically different punishment. That's not what we are looking at in the case at hand.

Next, I'd just like to point out that we are, after all, dealing with jail overcrowding, huge budget shortfalls, and a slumping economy. Do we really want to put people in jail that don't necessarily need to be there? Come on now. We have dangerous felony convicts that are out of jail with an ankle bracelet because they qualify to be out of jail. In order to qualify to be out of jail on an ankle bracelet, generally speaking, you need to be sentenced to more than a thirty-day jail sentence. So, should the measure pass, people who should be in jail will be out of jail, making room (I don't mean "room" literally) for people who don't need to be in jail to be guaranteed to go to jail. Wow.

Lastly, it would be demoralizing to our judiciary and intrusive concerning their functions. It is the judiciary's job to determine what a fair sentence should be in any given case. I've had several cases where judges have had to make both easy and tough decisions regarding what the appropriate sentence should be in a DWI case. The last thing I'd want to happen would be to devalue the importance of sentencing. I appreciate the process of informing the court of what I feel that a fair sentence should be and then watching the judge impose sentence after taking into account all the information it is supplied with. Who is better to gauge the appropriate sentence, a legislator that makes law, or a judge that sees criminal defendants daily and has been able to study the results of similarly situated defendants? I'd say a judge.

DWI: Using cellular telephones while driving

Many stops are perfected by police officers for drivers failing to maintain their lanes of travel. I have to say that about a third of the driving while intoxicated (DWI) cases I see start with a simple traffic stop alleging a lane violation. Sometimes, drivers do not stay within their lanes when driving because they are talking or sending text messages on their cellular telephones. Under current law, this is legal in most of New Mexico.

Yes, it's true that people are driving and talking on their cell phones --some even sending text messages while they drive. Who cares? Everyone cares if the person cannot drive properly while doing so.

The Governor's office recently issued a press release letting us know that he'll seek a ban on driving while using a cellular telephone. People who do so would be guilty of a misdemeanor and be required to fill the state's coffers with $200 each occurrence. The proposal has been seen by some as an attempt to get some positive press, a new secret tax, and an enormous waste of time.

An old saying goes something like this: No one cares if a tree falls, but everyone cares if it falls on someone. The saying summarizes my views regarding using a cellular telephone while driving. Some people can pull it off. Some people can't.

What's important to remember is that there is already a law on the books that protects us from the people who can't use their cellular telephone and drive correctly. It's called careless driving: "Any person who operates a vehicle in a careless, inattentive or imprudent manner, without due regard for the width, grade, corners, traffic, weather and road conditions and all other attendant circumstances is guilty of a misdemeanor." §66-8-114 NMSA 1978 (2009).

Make no mistake, I am not a fan of many people who drive while using their cellular telephones. Many of them drive too slow, delay in proceeding forward when the lights cycle, drive into your lane of travel, etc., etc. But, at the same time, there are an equal amount of drivers that can pull it off just fine. I don't see why the Governor doesn't just encourage the enforcement of existing law instead of proposing additional law.

I also believe that Albuquerque's City Ordinance that prohibits the use of cellular telephones while driving, as written, is unconstitutional. I've yet to have the opportunity to argue it, but I think it is poorly written, or at least it ignores that constitution thing. Who cares about that old worn out document anyway....

I had a discussion with a colleague yesterday about the proposed state-wide law and he argued that the Governor's office probably wanted to throw something into the press quickly to get New Mexican's minds off of his boating debacle. Some of you might remember that he was on a house boat in Elephant Butte this summer that wrecked into another boat. At least one person accused the boat's driver of being drunk. The governor reported that he was asleep during the accident --the accident having taken place at about 5:15 p.m. We should all be grateful instead of inquisitive: Early to sleep, early to rise keeps the Governor healthy and wise!

By the way, I think the proposed cell phone law will pass and become law.