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.