(dissenting).
I respectfully dissent. I agree with the majority opinion on the issue that the prior convictions on which the district court relied were valid convictions, but I disagree that NMSA 1978, Section 66-8-102 (Cum. Supp.1990) permits consideration of municipal ordinance convictions for enhancement purposes. Therefore, I believe that the district court erred in considering these convictions in enhancing defendant’s sentence.
This case requires us to interpret the meaning of Section 66-8-102(E). The pertinent portion of that section provides in part that “[a] second or subsequent conviction under this section shall be punished ... by imprisonment for not less than ninety days or more than one year____” Id. (emphasis added). All of defendant’s prior DWI convictions were under a Farmington municipal ordinance. Since he has never been convicted of DWI under Section 66-8-102, his present conviction cannot be considered a subsequent conviction under the section.
“Statutes authorizing a more severe punishment as conviction for a second offense are deemed highly penal and therefore must be strictly construed.” State v. Keith, 102 N.M. 462, 465, 697 P.2d 145, 148 (Ct.App.1985). “Doubts about the construction of criminal statutes are resolved in favor of the rule of lenity.” Id.; see also State v. Bybee, 109 N.M. 44, 46, 781 P.2d 316, 318 (Ct.App.1989). This court recently reaffirmed its policy of strictly construing criminal statutes in State v. Leiding, 112 N.M. 143, 812 P.2d 797 (Ct.App.1991). A strict construction of Section 66-8-102 mandates that defendant’s conviction be considered a first conviction under the state statute for sentencing purposes.
The plain words of Section 66-8-102(E) provide for enhanced punishment if the conviction is a second or subsequent conviction under that section. Section 66-8-102(E) does not provide for enhanced punishment if prior convictions were obtained under municipal ordinances. Other sections of the Motor Vehicle Code demonstrate that the legislature will expressly include local ordinance convictions within a statutory scheme if it chooses to do so. See NMSA 1978, §§ 66-5-29 & -35 (Repl.Pamp.1989). Because defendant’s prior convictions were secured pursuant to a Farmington municipal ordinance and not the state DWI statute, defendant should only be sentenced for a first conviction under Section 66-8-102(D).
The majority points out that the trial court considered the municipal ordinance convictions prior convictions under the state statute based on Section 66-8-102(F). The portion relied upon by the majority provides that “[a] conviction under a municipal ordinance prescribing penalties for driving while under the influence of intoxicating liquor or drugs shall be deemed to be a conviction under this section for purposes of determining whether a conviction in magistrate court is a second conviction” Id. (emphasis added). The state argues, and the majority agrees, that although only magistrate courts are mentioned in the subsection, since district courts have concurrent jurisdiction with magistrate courts, the statute should be read to encompass district courts as well. Moreover, the trial court ruled that although the quoted language only specifies that municipal ordinance convictions can be used to enhance a second conviction, such a reading is too limited. The trial court believed the language in Subsection F should be construed to allow enhancement up to a fourth or subsequent conviction, as was done in this case.
I understand that the trial court was confronted with the difficult task of reconciling the limited language of Section 66-8-102(F) with the statute’s overall purpose of preventing drunk driving anywhere in the state. See § 66-8-102(A). However, I believe adopting the construction used by the majority would require us to change the language enacted by the legislature. As our supreme court has stated in the past, we will not change the wording in a criminal statute so that it can be construed against the accused. See State v. Collins, 80 N.M. 499, 502, 458 P.2d 225 228 (1969).
We recognized in State v. Greyeyes, 105 N.M. 549, 553, 734 P.2d 789, 793 (Ct.App.1987) (quoting Burch v. Foy, 62 N.M. 219, 223, 308 P.2d 199, 202 (1957)), that:
“A statute must be read and given effect as it is written by the Legislature, not as the court may think it should be or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration____ Courts must take the act as they find it and construe it according to the plain meaning of the language employed.”
As we said in Greyeyes, we may not invade the legislature’s province to enlarge the penalty for violation of an offense. Id.
The state argues it does not make sense to allow a prosecutor the discretion of securing a greater punishment by filing all DWI charges in magistrate court rather than district court. Whether the state’s concerns are valid, complaints about the “inadequacy of legislation to reach the result desired by the State must ... be addressed to the legislature, not the courts.” See State v. Garcia, 98 N.M. 585, 589, 651 P.2d 120, 124 (Ct.App.1982). “Where the state seeks to broaden the application of the statute beyond the plain wording of the act, the appropriate remedy, however, involves ‘legislative therapy and not judicial surgery.’ ” See State v. Gardner, 112 N.M. 280, 814 P.2d 458 (Ct.App.1991) (quoting City of Albuquerque v. Sanchez, 81 N.M. 272, 273, 466 P.2d 118, 119 (Ct.App.1970), overruled on other grounds, State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986)).
Defendant mentions in his reply brief that the definition of a “subsequent offender” in NMSA 1978, Section 66-l-4.16(Q) (Cum.Supp.1990), may be construed to indicate that the legislature intended municipal court convictions to be considered prior convictions under Section 66-8-102. However, defendant argues that Section 66-1-4.16(Q) did not go into effect until after defendant was arrested for DWI, and is therefore inapplicable to this case. Although the state has not argued this point, we must point out that the language in Section 66-1-4.16(Q) was in effect at the time of defendant’s arrest under NMSA 1978, Section 66-l-4(B)(64) (Repl.Pamp. 1989). Nevertheless, I do not believe the definition of a “subsequent offender” found in Section 66-1-4(B)(64) or Section 66-1-4.16(Q) warrants treating defendant’s current conviction as a fourth conviction under Section 66-8-102(E).
Although a subsequent offender is defined as someone who has been adjudicated guilty of DWI under a state statute, federal law, or municipal ordinance, the precise term “subsequent offender” only appears in the Motor Vehicle Code for license revocation proceedings. See NMSA 1978, §§ 66-5-23, -29, -35 (Repl.Pamp.1989); NMSA 1978, § 66-8-135 (Repl.Pamp.1987). The legislature could have easily used the term “subsequent offender” in Section 66-8-102, but it did not. Aside from the limited use of municipal ordinance convictions allowed by Section 66-8-102(F), the narrow use of the térm “subsequent offender” appears to indicate a legislative intent to limit the use of municipal ordinance convictions to enhancing license revocation penalties rather than more severe criminal penalties.
For the foregoing reasons, I would reverse and remand this case with instructions to vacate defendant’s sentence and resentence him for a first conviction consistent with the provisions of Section 66-8-102(D).