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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 14:34:32 2012.07.05
Certiorari Denied, May 16, 2012, No. 33,593

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-062

Filing Date: March 30, 2012

Docket No. 30,597

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PATRICK GIBSON NATONI,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa C. Schultz, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

CASTILLO, Chief Judge.

{1}     The issue before us is whether the district court was correct in imposing the penalty
for Defendant’s offense of driving an off-road vehicle while intoxicated (DWI) under NMSA
1978, Section 66-8-102 (2008) (amended 2010) (DWI statute), or should the court have
utilized the penalty assessment misdemeanor scheme set out in NMSA 1978, Section 66-3-
1020 (2009), of the Off-Highway Motor Vehicle Act (OHMVA). We hold that the
Legislature intended that the DWI statute control in this instance, and thus we affirm the
sentence imposed by the district court.

BACKGROUND

{2}     While driving his 2006 Polaris All-Terrain Vehicle (ATV) on a public road at 6:30
a.m., Defendant crashed into a telephone pole. He walked away from the accident and into
a nearby house, leaving behind his passenger, who was injured in the collision. A police
officer responded to the accident and looked for the driver but found only the injured
passenger on the ground. Having information that Defendant was the driver and was in the
nearby house, the officer located him there in a bathroom cleaning himself. The officer
discovered that Defendant was the driver of the ATV and that he had been drinking since
9:00 p.m. the previous night. The officer asked Defendant to perform field sobriety tests,
and Defendant failed them. The officer arrested Defendant and asked him to submit breath
samples. Defendant agreed, and his breath samples resulted in blood alcohol level readings
of 0.17 and 0.18.

{3}     Defendant was charged with six violations of the Motor Vehicle Code, including
aggravated DWI. The parties agreed that the ATV constituted an off-highway motor vehicle
and that Defendant violated the OHMVA, NMSA 1978, §§ 66-3-1001 through -1020 (1978,
as amended through 2009). See § 66-3-1001.1(E) (defining an “off-highway motor
vehicle”). The State dismissed five of the six counts, and Defendant pled no contest to the
charge of driving while intoxicated under Section 66-3-1010.3(A)(2) of the OHMVA
(prohibiting the operation of an off-highway motor vehicle while under the influence of
intoxicating liquor). The plea agreement contained no agreement as to sentencing. It set out
the range of penalties beginning with the penalty assessment misdemeanor scheme under the
OHMVA to a high of the penalties imposed under the DWI statute. Defendant’s plea was
conditioned on his right to appeal the district court’s sentencing decision. The district court,
however, concluded that sentencing is governed by the DWI statute because Defendant
admitted to operating an ATV under the influence of alcohol, an accident resulting in injury
occurred as a result of Defendant’s driving, and the penalty assessment misdemeanor scheme
of the OHMVA does not include this violation. The district court sentenced Defendant as
a multiple DWI offender for his two prior DWI convictions and imposed a jail term of three
hundred and sixty-four days and a fine of $1,000, suspending all but ninety days of his
detention and $250 of his fine.

DISCUSSION

{4}    On appeal, Defendant argues that, because he violated a specific provision of the
OHMVA and it contains a comprehensive penalty scheme, he should be sentenced under its
catch-all penalty provision. Defendant also argues that because the Legislature did not give
clear guidance as to his punishment, we should apply the rule of lenity and resolve the
ambiguity in his favor.

{5}     Whether Defendant should have been sentenced under the OHMVA or the DWI
statute presents an issue of statutory construction for which our review is de novo. See State
v. Tafoya, 2010-NMSC-019, ¶ 9, 148 N.M. 391, 237 P.3d 693 (recognizing that where a
dispute as to sentencing requires construction of our statutes the review is de novo). “Our
ultimate goal in statutory construction is to ascertain and give effect to the intent of the
Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (internal
quotation marks and citation omitted). In doing so, “we look first to the plain language of
the statute.” State v. Saiz, 2001-NMCA-035, ¶ 2, 130 N.M. 333, 24 P.3d 365. We will
“apply the plain meaning of the statute unless the language is doubtful, ambiguous, or an
adherence to the literal use of the words would lead to injustice, absurdity or contradiction,
in which case the statute is to be construed according to its obvious spirit or reason.”
Tafoya, 2010-NMSC-019, ¶ 10 (internal quotation marks and citation omitted). Where a
statute is unclear, “we may . . . consider the policy implications of the various constructions
of the statute.” State v. Rivera, 2004-NMSC-001, ¶ 14, 134 N.M. 768, 82 P.3d 939. We will
not “exceed[] the bounds of our role as an appellate court by second-guessing the clear
policy of the Legislature.” Id. We also note that “[w]henever possible, . . . we must read
different legislative enactments as harmonious instead of as contradicting one another.”
Tafoya, 2010-NMSC-019, ¶ 10 (second alteration in original) (internal quotation marks and
citation omitted).

The Penalty Scheme in the OHMVA Does Not Apply to This Case

{6}     Defendant argues that the New Mexico Legislature recently created a comprehensive
penalty scheme specifically for violations of the provisions of the OHMVA. See § 66-3-
1020(B). Defendant observes that Section 66-3-1020(A) states that “[a] person who violates
the provisions of the [OHMVA] is guilty of a penalty assessment misdemeanor.” Defendant
points out that this language was formerly absent from the statute’s penalty provision, which
had stated that “[u]nless the violation is declared a felony, a petty misdemeanor or a citation
under the Motor Vehicle Code, a person who violates the provisions of the [OHMVA] is
guilty of a misdemeanor pursuant to [NMSA 1978,] Section 66-8-7 [(1989)].” N.M. Laws
2005, ch. 325, § 22. Defendant contends that the former provision expressly guided readers
outside the OHMVA for penalties and that the Legislature replaced this language with a
comprehensive penalty scheme, leaving out any such language for violations not specifically
described in the penalty scheme. See § 66-3-1020(B). With the 2009 amendments, the
penalty provision now contains a chart describing violations of the OHMVA, considered
“penalty assessment misdemeanor[s],” groups them into four classes, and assigns them
penalties ranging from $10 to $200 in fines. See § 66-3-1020(B). Defendant recognizes that
the penalty scheme does not include driving an off-highway motor vehicle while intoxicated
among the specifically described violations of the OHMVA. Defendant directs us to Section
66-3-1020(B), which applies to “any violation of the [OHMVA] not otherwise specifically
defined somewhere in this section.” According to Defendant, the absence of a specific
penalty for this offense means that it falls within the catch-all provision and would be
punished as an undefined violation in Class I with a fine of $10. See § 66-3-1020(B).

{7}    We disagree with this reading of the OHMVA. Subsection E of the penalty provision
of the OHMVA clearly excludes those violations that have “caused or contributed to the
cause of an accident resulting in injury or death to a person.” Section 66-3-1020(E).
Because, as found by the district court, the passenger in the ATV was injured in Defendant’s
drunk driving accident, Defendant’s violation is not a “penalty assessment misdemeanor.”
Id. (“The term ‘penalty assessment misdemeanor’ does not include a violation that has
caused or contributed to the cause of an accident resulting in injury or death to a person.”).
Accordingly, by the plain language of the statute, Defendant’s offense is not punishable
under the OHMVA. Defendant, therefore, cannot prevail in his argument that the catch-all
penalty of $10 for undefined violations applies to his violation.

The Penalty for DWI Under the OHMVA Is the Same as for DWI

{8}      Defendant’s next argument is based on a recognition that his offense is not a “penalty
assessment misdemeanor” under the OHMVA because his actions caused an injury. He
observes that there is no direction in the OHMVA “guiding an appropriate punishment for
incidents involving off-highway motor vehicles that result in injury.” Defendant maintains
that because the Legislature did not provide for a punishment in such a situation there is an
ambiguity, and that this ambiguity requires clarification not from the courts but from the
Legislature. Defendant asks us to apply the rule of lenity in his case, resolve the ambiguity
in his favor, and direct the district court to reverse his sentence by assigning him a penalty
under the OHMVA and not under the DWI statute.

{9}     The rule of lenity applies when, despite application of other principles of statutory
construction, an “insurmountable ambiguity persists regarding the intended scope of a
criminal statute” and legislative intent. State v. Davis, 2003-NMSC-022, ¶¶ 13-14, 134 N.M.
172, 74 P.3d 1064. As we have stated, the plain language of Section 66-3-1020(E) removes
accidents involving an injury from penalty under the OHMVA, and this precludes imposition
of Defendant’s desired penalty. Although the district court found this subsection dispositive
of the sentencing issue, our analysis must continue. Even though we have concluded that
the penalties set forth in the OHMVA do not apply in this case, we must answer the question
of which punishment does apply. Based on the following analysis, we do not apply the rule
of lenity but instead hold that the unambiguous legislative intent in enacting Section 66-3-
1010.3(A)(2) is to punish driving an off-highway motor vehicle while intoxicated in
accordance with the DWI statute, regardless of whether there was an injury involved.

{10} We begin our analysis by applying principles of statutory construction. Section 66-3-
1010.3(A) of the OHMVA articulates safety concerns involved in the operation and
equipment of off-highway motor vehicles, listing twelve conditions under which an off-
highway motor vehicle is not to be operated. Included among the prohibited conditions is
operating an off-highway motor vehicle “while under the influence of intoxicating liquor or
drugs as provided by Section 66-8-102.” Section 66-3-1010.3(A)(2) (emphasis added). As
the State observes, this is the only one of the twelve prohibited activities listed in Subsection
A that refers to another statute. The State also points out that driving an off-highway motor
vehicle while intoxicated is the only one of the prohibited activities in all of Section 66-3-
1010.3 that is not specifically addressed by the OHMVA penalty scheme and assigned to a
class of penalty assessments. Compare § 66-3-1010.3(A)(1)-(12), (B), (C), (D), and (E)
(listing prohibited activities involving the safe operation and equipment of off-highway
motor vehicles), with § 66-3-1020(B) (listing the violations described in Section 66-3-
1010.3, except driving under the influence, and including violations of other sections of the
OHMVA).
{11} Defendant, on the other hand, contends that by prohibiting the operation of an off-
highway motor vehicle while intoxicated and using the language “as provided by Section 66-
8-102,” the Legislature intended only to guide readers to the DWI statute to provide the
applicable definitions of “under the influence” of alcohol or drugs, not to provide penalties.
Section 66-3-1010.3(A)(2) (emphasis added). Defendant then directs us to the catch-all
penalty provision of the OHMVA and argues that it applies to violations of Section 66-3-
1010.3 that are “not otherwise specifically defined somewhere in this section.” Operating
an off-highway motor vehicle while intoxicated is prohibited by Section 66-3-1010.3, and
there is no specific penalty for this violation; therefore, Defendant concludes that the catch-
all penalty provision applies to this offense. He also observes that neither the title nor the
content of the penalty provisions of Section 66-3-1020 refers to the DWI statute or any other
part of the Motor Vehicle Code.

{12} We agree with the State that Defendant’s narrow reading of the language “as
provided by Section 66-8-102” is not supported by the plain terms of the OHMVA and
would lead to a result clearly not intended by the Legislature. Section 66-3-1010.3(A)(2)
(emphasis added); see Smith, 2004-NMSC-032, ¶¶ 8-9 (noting that the primary goal of
statutory construction is to discover and effectuate legislative intent, a process which begins
with the language of the statute). Nothing in the plain language of the phrase “as provided
by” indicates that the Legislature referenced the DWI statute for the limited purpose of
defining driving while intoxicated and that it intended the OHMVA to control in all other
respects. See State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (“A criminal
statute is not ‘ambiguous’ for purposes of lenity merely because it [is] possible to articulate
a construction more narrow than that urged by the Government.” (alteration in original)
(internal quotation marks and citation omitted)). Also, we are unpersuaded by Defendant’s
narrow reading because the Legislature singled out DWI from all the other safety violations
by referring to the DWI statute and did not include a description of only this safety violation
in the OHMVA penalty scheme. Although the language of the statute could have been more
artfully drafted, we believe the Legislature’s reference to the DWI statute was for all
purposes, including penalties.

{13} We therefore conclude that our interpretation of the OHMVA, not Defendant’s, leads
to the result intended by the Legislature. See Rivera, 2004-NMSC-001, ¶ 14 (stating that
where there is a lack of clarity in a statute, we consider the policy implications of alternative
interpretations). A review of recent legislative acts shows that the Legislature has enhanced
the penalties for DWI and has created stricter laws related to DWI in various contexts,
evincing a profound legislative interest in “protect[ing] the public from the risk of harm
posed by intoxicated drivers.” State v. Sims, 2010-NMSC-027, ¶ 29, 148 N.M. 330, 236
P.3d 642 (stating the legislative purpose of the DWI statute) (internal quotation marks and
citation omitted); compare § 66-8-102 (2002) (amended 2010), with § 66-8-102 (2004)
(amended 2010) (lowering the lawful blood alcohol level for commercial drivers, increasing
the mandatory jail time for a second and fourth DWI conviction, and adding provisions with
increasing mandatory jail time and fines for fifth, and subsequent DWI convictions). We
also observe that the Legislature enacted these enhancements with immediate effectiveness,
pursuant to an emergency clause, in response to what the New Mexico Supreme Court
characterized as a “perceived public crisis.” Smith, 2004-NMSC-032, ¶ 14. In light of the
strong legislative public policy interest in combating DWI in many contexts, we are not
persuaded that the Legislature intended to punish driving an off-highway motor vehicle
while intoxicated with a $10 fine under the OHMVA.

{14} We also observe that the Legislature has broadly worded the application of the DWI
statute and that nothing therein precludes either its application to the current case or our
reading of the OHMVA. See Ogden, 118 N.M. at 243, 880 P.2d at 854 (“Statutes on the
same general subject should be construed by reference to each other the theory being that
the court can discern legislative intent behind an unclear statute by reference to similar
statutes where legislative intent is more clear.” (citation omitted)). By its language, Section
66-8-102(A) applies to any person under the influence of intoxicating liquor who drives a
“vehicle within this state.” Defendant’s ATV in the current case would qualify as a vehicle
for purposes of Section 66-8-102(A). See NMSA 1978, § 66-1-4.19(B) (2005) (defining
“vehicle” as “every device in, upon[,] or by which any person or property is or may be
transported or drawn upon a highway, . . . except devices moved exclusively by human
power or used exclusively upon stationary rails or tracks”); Saiz, 2001-NMCA-035, ¶ 1
(holding that a moped is a vehicle for purposes of DWI) cf. State v. Richardson, 113 N.M.
740, 741-42, 832 P.2d 801, 802-03 (Ct. App. 1992) (holding that a farm tractor is both a
motor vehicle and a vehicle, and thus an intoxicated person operating a farm tractor on an
unpaved roadway maintained by the county could be charged with violating Section 66-8-
102(A)). In addition, there is no dispute that Defendant was driving on a public road, and
therefore would qualify as driving “within this state” for purposes of applying Section 66-8-
102(A). Cf. State v. Johnson, 2001-NMSC-001, ¶ 21, 130 N.M. 6, 15 P.3d 1233
(recognizing that a similar danger is posed by an intoxicated driver on either a public road
or private property), limited on other grounds by Sims, 2010-NMSC-027, ¶¶ 2-3, 28-31.

{15} For these reasons, we are satisfied that the Legislature intended the application of the
DWI statute to punish the offense of driving an off-highway motor vehicle while intoxicated.

CONCLUSION

{16}   Based on the foregoing, we affirm Defendant’s sentence.

{17}   IT IS SO ORDERED.

                                               ____________________________________
                                               CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
J. MILES HANISEE, Judge
Topic Index

APPEAL AND ERROR
Standard of Review

CRIMINAL LAW
Driving While Intoxicated
Motor Vehicle Violations

STATUTES
Interpretation
Legislative Intent
Rules of Construction
