(concurring in part and dissenting in part).
MINZNER, Justice.
(39) I CONCUR IN PART and DISSENT IN PART. An opinion in this case was filed originally on May 31, 1996, prior to the retirement of Chief Justice Stanley F. Frost. See State v. Anaya, Vol. 35, No. 31, SBB 13 (N.M.1996). In that opinion, this Court unanimously held that the most recent amendment to the basic statute criminalizing driving under the influence of alcohol or drugs (DWI), see NMSA 1978, § 66-8-102 (Repl.Pamp.1994) (creating felony DWI), did not alter the elements required to establish the offense of DWI and thus that proof of prior convictions is not an element of felony DWI. Today the Court reaffirms that holding in the opinion authored by Justice Franchini. I concur in that portion of the opinion filed today. However, the Court also concludes that the Legislature did not intend that defendants convicted of felony DWI should be subject to enhancement under NMSA 1978, § 31-18-17 (Repl.Pamp.1994) (authorizing enhancement of a felony conviction and providing different levels of enhancement for various numbers of prior felony convictions). For the following reasons, I respectfully dissent from that portion of the opinion.
(40) Defendants argue that such enhancement would constitute an impermissible double enhancement. Defendants note that conviction under the felony DWI statute itself involves an enhancement from misdemeanor to felony. They argue that a second enhancement as a habitual offender is improper in the absence of clear evidence that the Legislature intended to authorize that result. The State, on the other hand, asserts that there is no conflict between Section 66-8-102(G) and Section 31-18-17 (the habitual offender statute) and that the plain language of these statutes mandates application of both enhancements. The State points out that Section 66-8-102(G) makes a specific reference to NMSA 1978, § 31-18-15 (Repl. Pamp.1994), the felony sentencing provision. Section 31-18-15 in turn refers to Section 31-18-17.
(41) I continue to believe, as I did in May, that the State has the better argument. Nothing in the motion for rehearing has persuaded me that this Court misapprehended the Legislature’s intent in the opinion filed May 31. See generally Rule 12-404(A) NMRA 1996 (“The motion [for rehearing] shall state ... the points of law or fact which in the opinion of the movant the court has overlooked or misapprehended.”)
I.
(42) All parties agree that resolution of this issue requires us to ascertain and effectuate the intent of the Legislature. See State v. Lujan, 76 N.M. 111, 117, 412 P.2d 405, 409 (1966); State v. Keith, 102 N.M. 462, 463, 697 P.2d 145, 146 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985). Four fundamental principles of statutory interpretation are relevant. First, in discerning legislative intent, courts rely primarily upon the language used by the Legislature. E.g., V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993). Second, courts will give unambiguous statutes effect as written. Id. Third, courts will, if possible, apply two statutory provisions so as to give effect to each and avoid conflicts between them. See State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575-76, 855 P.2d 562, 564-65 (1993). Fourth, courts will presume that the Legislature acts “with full knowledge of relevant statutory and common law.” Id. at 575, 855 P.2d at 564. Each of these tenets has been frequently repeated by this Court and is firmly established in our jurisprudence. Application of these principles to the issue before us leads to the conclusion that those convicted of felony DWI should be subject to habitual offender enhancement in the same manner as other felons.
(43) The majority suggests that there is no particular approach that enables us “to facilitate and promote legislative purpose.” Opinion at 232. The majority states that “[t]he judicial branch simply must select the rationale that most likely accomplishes the legislative purpose — or best fills a void not addressed by the legislature.” Id. The majority assumes “that the legislature would have expressly stated any intention to add as much as eight habitual-felon years to its fourth-degree-felony enhancement of the misdemeanor of driving while intoxicated without personal injury.” Id. I think that in making such an assumption, the majority has decided the case. While I agree that there may be no particular approach that enables us to determine the legislature’s intent in every case that might be brought to us, I do not believe that there' are not some approaches that are helpful sometimes nor do I believe that there is no useful approach in this case. Rather, I think the available approaches yield the same result and that the majority’s assumption about the Legislature’s intent is unwarranted.
(44) The Legislature might have made its intention to permit enhancement of a felony DWI conviction under Section 31-18-17 express and thus clearer. Nevertheless, based on the language and structure of the relevant statutes, keeping in mind prior case law interpreting Section 31-18-17 and cases from other jurisdictions, and considering legislative action in response to older cases interpreting predecessor statutes, I believe we should conclude that the Legislature intended the habitual offender enhancement to apply-
A. The Language and Structure of the Relevant Statutes
(45) In addition to their other arguments, Defendants assert that a felony DWI conviction should be treated differently from other felony convictions for sentence enhancement purposes because DWI is a misdemeanor that becomes felonious solely by virtue of repetition. In effect, Defendants argue that felony DWI is not a “real felony.” Defendants offer very little authority to support this proposition, and the language of the DWI statute does not permit the distinction.
(46) The felony provision in our DWI statute provides: “Upon a fourth or subsequent conviction under this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months which shall not be suspended or deferred or taken under advisement.” Section 66-8-102(G) (emphasis added). Section 31-18-15 provides that the basic sentence for a fourth-degree felony is 18 months’ imprisonment, subject to enhancement or mitigation by up to one-third. Section 31-18-15 contains the same phrase contained in Section 31-18-17: “person ... convicted of a noncapital felony.” Section 31-18-17 further provides an increased sentence for “[a]ny person convicted of a noncapital felony in this state ... who has incurred one prior felony conviction.” Section 31-18-17(B).
(47) I have considered the possibility that Defendants have not been “convicted” of a felony within the meaning of Section 31-18-17 because each was convicted initially of a misdemeanor, and I have viewed the existence of prior convictions not as elements of the offense of felony DWI, but rather as facts requiring an enhanced penalty under Section 66-8-102(G). That is, I have considered the possibility that Defendants were sentenced on the basis of their status as habitual offenders rather than convicted of a felony within the meaning of Section 31-18-17. However, because Section 66-8-102(G) refers to Section 31-18-15, which itself applies only to a person convicted of a felony, I think it would be unduly technical to refuse to apply Section 31-18-17 on that basis. The wording the Legislature used is not as clear as it might have been, but I think it is clear enough to preclude application of the rule of lenity. Interpreting the plain language of Section 66-8-102(G) together with that of Section 31-18-15, I conclude that the Legislature intended felony DWI to be punished by a basic sentence of 18 months, 6 of which must be served.
(48)Defendants argue that the Legislature’s use of the word “jail” in Section 66-8-102(G) evinces an intent to punish persons convicted under that statute by incarceration in county jails and that the maximum permissible sentence is therefore less than one year. See NMSA 1978, § 31-20-2 (RepLPamp. 1994) (providing that persons sentenced to less than one year are to be confined in the county jail; those sentenced to one year or more are to be confined in a correctional facility); see also State v. Ruiz, 109 N.M. 437, 438, 786 P.2d 51, 52 (Ct.App.1989), cert. denied, 109 N.M. 419, 785 P.2d 1038 (1990). Defendants’ argument on this point does not withstand analysis. If the presence of the word “jail” evinces legislative intent to set the maximum punishment at less than one year, then Section 66-8-102(G)’s reference to Section 31-18-15 becomes superfluous. Courts will avoid an interpretation that renders a statutory provision surplusage. Vaughn v. State Taxation & Revenue Dep’t, 98 N.M. 362, 366, 648 P.2d 820, 824 (Ct.App. 1982). Moreover, under Defendants’ theory, the maximum sentence for a fourth offense would be the same (364 days) as for a second or third offense. See § 66-8-102(F). The only difference in punishment would be that a fourth offense would involve a mandatory 6-month jail term that could not be suspended or deferred. If the Legislature intended that this should be the only difference between third and fourth DWI offenses, then there would be no point in designating fourth DWI offenses as felonies.
(49) The problem with Defendants’ argument that fourth offense DWI is not a “real felony” is that the offense is a felony under all of the recognized definitions of felony. At common law, an offense is a felony if it may be punished by death, imprisonment for more than one year, or imprisonment in the state prison. 1 Charles E. Torcía, Wharton’s Criminal Law § 19 (15th ed. 1993). Some courts have defined felony in yet another manner: An offense is a felony if it has been so designated by the Legislature. See Mack v. State, 312 A.2d 319 (Del.Super.Ct.1973). Our Legislature has embraced two of these three definitions.
(50) The Criminal Procedure Act defines felony as “any crime so designated by law or if upon conviction thereof a sentence of death or imprisonment for a term of one year or more is authorized.” NMSA 1978, § 31-1-2(D), (K) (Repl.Pamp.1984);1 see also § 31-18-17(A)(2)(b), (c). The Legislature has designated fourth-offense DWI as a felony, see § 66-8-102(G), punishable by up to 2 years’ imprisonment, see § 31-18-15 (prescribing the punishment for fourth-degree felonies as a basic sentence of 18 months, which can be aggravated by up to one-third). Furthermore, a fourth-offense DWI may result in incarceration in the state prison. See § 31-20-2(A) (providing that persons sentenced to “imprisonment for a term of one year or more” shall be imprisoned in a corrections facility); see also Ruiz, 109 N.M. at 438, 786 P.2d at 52. Thus, fourth-offense DWI constitutes a felony under any of the three recognized definitions of felony. Apart from these accepted approaches, I am not aware of any other method of distinguishing between felonies and misdemeanors. I conclude that fourth-offense DWI constitutes a “felony” as that term is used in the habitual offender statute. Cf. State v. Charlton, 115 N.M. 35, 40, 846 P.2d 341, 346 (Ct.App.1992) (stating that the firearm enhancement provision applies to all noncapital felonies), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993).
(51) In short, the presence of the word “jail” in Section 66-8-102(G) is insufficient evidence that fourth-offense DWI’s should be punishable by less than one year imprisonment and that they are therefore not felonies. This interpretation is contrary to the statute’s express designation of the offense as a “felony,” as well as the statute’s reference to Section 31-18-15. A more plausible interpretation is that the Legislature intended a fourth-offense DWI to constitute a fourth-degree felony to be punished in the same manner as other fourth-degree felonies. Accordingly, I would hold that a conviction under Section 66-8-102(G) constitutes a “felony conviction” within the meaning of the habitual offender statute. Any doubt about the language used is eliminated when one considers prior New Mexico case law, changes in the habitual offender statute as a result of that case law, and cases from other jurisdictions.
B. Prior Case Law
(52) In arguing that double enhancement is impermissible under New Mexico law, Defendants cite a line of cases going back to this Court’s decision in Lujan, 76 N.M. at 111, 412 P.2d at 405. In Lujan the Court convicted the defendant of a violation of the Narcotic Drug Act in which the defendant had two prior felony convictions — one drug-related and one not. The trial court sentenced him under a provision of the Narcotic Drug Act that provided more severe penalties for second and subsequent violations of the Act. See NMSA 1953, § 54-7-15(B). Additionally, the trial court sentenced the defendant as a third-time felon pursuant to the habitual offender statute. In overturning that sentence, this Court held that the defendant could not be subject to enhanced sentences under both the Narcotic Drug Act and the habitual offender statute. This conclusion rested on a determination that the provisions of the two statutes were in conflict and could not be reconciled:
The enhancement provisions of the Narcotic Drug Act differ appreciably from the enhancement provisions of the Criminal Code. In § 54-7-15(C) of the Narcotic Drug Act, there is provision for “the third or subsequent offense.”[2] But [the habitual offender statute] provides life imprisonment as the penalty for conviction for a fourth felony, which would qualify only as a “subsequent offense” under the Narcotic Drug Act.
While the habitual criminal statute ... does not consider a case where the offender is a minor, § 54-7-15(D), supra, provides for a penalty of a fine up to $10,000 and imprisonment for 20 years to life, in case of an adult offender. The latter portion of § 54-7-15 provides for hospitalization in certain cases, as well as for the disallowance of any suspension or parole until the minimum imprisonment provided for the offense has been served. The habitual criminal statute has no such provision. These factors indicate to us that the legislature intended the “object” of providing special punishment for violators of the Narcotic Drug Act when it passed § 54-7-15, supra, and a different “object” when it passed [the habitual offender statute],
Lujan, 76 N.M. at 116, 412 P.2d at 408 (citation omitted). In short, the Lujan Court concluded that the two enhancement provisions — the habitual offender statute and that in the Narcotic Drug Act — were in conflict. The Court found that it could not apply both statutes in a manner that would give effect to all of the provisions of each. Accordingly, this Court applied the more specific statute, the Narcotic Drug Act. Id, at 117, 412 P.2d at 408-09. This Court’s decision in Lujan did not, as Defendants suggest, rest on the notion that multiple enhancements are always impermissible. Rather, it rested upon the principle that, when there is conflict between a specific and a general statute, courts will give effect to the specific statute. That rule is applicable only when conflict cannot be avoided. See State v. Gabaldon, 92 N.M. 230, 234, 585 P.2d 1352, 1356 (Ct.App.) (“the special-general statute rule comes into play only when the two statutes conflict and cannot be harmonized”), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978); State v. Roland, 90 N.M. 520, 523, 565 P.2d 1037, 1040 (Ct. App.) (second conviction of armed robbery, enhanced to first degree felony within the armed robbery statute, may be further enhanced under the habitual offender statute because the two statutes do not conflict), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). Here there is no irreconcilable conflict.
(53) Defendants further rely upon a line of Court of Appeals cases that has grown out of Lujan. These cases in fact support application of the habitual offender statute under the circumstances presented by this appeal.
(54) In Keith the trial court convicted the defendant of armed robbery, and because it was his second armed robbery conviction, he was guilty of a first-degree felony. 102 N.M. at 463, 697 P.2d at 146. See § 30-16-2. The trial court sentenced the defendant for a first-degree felony and then enhanced his sentence pursuant to the habitual offender statute. The trial court based the enhancement on two prior felony convictions — the earlier armed robbery conviction and a burglary conviction. The Court of Appeals, relying on Lujan, held that the first armed robbery conviction could not be a basis for enhancement under both the armed robbery and the habitual offender statutes. However, the Court did not hold that the habitual offender statute was inapplicable. To the contrary, the Keith court made it clear that the sentence was subject to enhancement under the habitual offender statute for the prior burglary conviction. Id. at 465, 697 P.2d at 148. Accordingly, the Keith court concluded that the defendant had one — instead of two — prior felonies for purposes of the habitual offender statute.
(55) The Court of Appeals relied upon Keith in State v. Haddenham, 110 N.M. 149, 793 P.2d 279 (Ct.App.), cert. denied, 110 N.M. 72, 792 P.2d 49, and cert. denied, 110 N.M. 183, 793 P.2d 865 (1990). Haddenham involved a prosecution for the crime of felon in possession of a firearm, an essential element of which is that the defendant previously have been convicted of a felony. The Haddenham Court held that the State may not use the fact of the prior conviction both to prove that element of the crime and as a basis for enhancement under the habitual offender statute. Id. at 152-53, 793 P.2d at 282.
(56) The Court of Appeals explicitly recognized the limited scope of the Keith-Haddenham line of cases in State v. Peppers, 110 N.M. 393, 796 P.2d 614 (Ct.App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990). As the Peppers court noted, these precedents stand for the limited proposition that the same fact may not be used twice, both as an element of the crime and as a basis for enhancement or as a basis for two separate enhancements, unless the Legislature specifically authorizes such double use. Id. at 401, 796 P.2d at 622. These decisions do not represent, as Defendants suggest, a broad prohibition against double enhancement.
(57) Keith, Haddenham, and Peppers do not preclude double enhancement on the facts of this case. Each of the two enhancements — under the DWI statute and under the habitual offender statute — rests upon different facts. The basis for the enhancement from misdemeanor DWI to felony DWI is the fact of three or more prior DWI convictions. Prior DWI convictions do not contribute to the habitual offender enhancement. In contrast, the basis for the habitual offender enhancement is the existence of prior non-DWI felony convictions. Prior felony convictions in no way contribute to the enhancement from misdemeanor DWI to felony DWI. Thus each enhancement rests on distinct facts — one on prior misdemeanor DWI’s and the other on prior felonies. Such dual enhancement is permissible under the KeithHaddenham-Peppers line of decisions. See State v. Yparrea, 114 N.M. 805, 808, 845 P.2d 1259, 1262 (Ct.App.1992), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993); State v. Hubbard, 113 N.M. 538, 541, 828 P.2d 971, 974 (Ct.App.), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992); Peppers, 110 N.M. at 401, 796 P.2d at 622; Keith, 102 N.M. at 465, 697 P.2d at 148.
C. Legislative Action in Response to Our Case Law
(58) The line of judicial decisions that rejected enhancement under both the Controlled Substances Act and the habitual offender statute provides no support to Defendants’ position. As explained above, this Court determined in Lujan, 76 N.M. at 117, 412 P.2d at 408-09, that the sentence of a defendant convicted for a violation of the Narcotic Drug Act could not be enhanced under the general habitual offender statute. The Lujan decision rested upon the conclusion that the two enhancement schemes were in conflict; accordingly, the specific statute prevailed over the general statute.
(59) Following our decision in Lujan, the Legislature repealed the Narcotic Drug Act and replaced it with the Controlled Substances Act (the CSA), and thereafter the Court of Appeals decided State v. Alderete, 88 N.M. 150, 538 P.2d 422 (Ct.App.1975). Alderete involved the issue of whether a defendant’s third conviction under the CSA for felony possession of heroin was subject to enhancement pursuant to the general habitual offender statute. The Alderete court concluded that Lujan was inapplicable because there was not a prior drug-related conviction involved and because the CSA did not specify that successive convictions for possession of heroin should involve enhancement. 88 N.M. at 151, 538 P.2d at 423. Moreover, the Court reasoned that there was no conflict between the CSA and the habitual offender statute as there had been in Lujan. Id. at 151-52, 538 P.2d 422. Nevertheless, the Alderete court held that enhancement under the habitual offender statute was improper. In reaching this conclusion, the Court recognized that (1) the CSA provided for enhanced penalties for repeated possession convictions for certain drugs, but not for heroin; and (2) in enacting the CSA, the Legislature “substantially reduced the penalty for all possessory offenses,” id, at 152, 538 P.2d at 424, thus evincing an intent to punish drug possession offenses less severely than had been the case under the former Narcotic Drug Act. On the basis of these grounds as well as the CSA’s legislative history, the Court concluded that “the Legislature did not intend that the habitual offender law was to apply to second or subsequent [convictions for possession of heroin].” Id.; see also State v. Hey-ward, 90 N.M. 780, 781-82, 568 P.2d 616, 617-18 (Ct.App.1977) (relying upon Alderete to reach the same result under factually similar cases).
(60) Viewed broadly, Lujan, Alderete, and Heyward might be seen as standing for the principle that the habitual offender statute is inapplicable whenever the Legislature has devised a specific enhancement scheme for a narrow class of crimes. But see Roland, 90 N.M. at 522-23, 565 P.2d at 1039-40 (holding habitual offender statute applicable to armed robbery conviction, even though armed robbery statute contained its own enhancement). Under such a view, application of the habitual offender statute would be inappropriate here where the Legislature has provided in the Motor Vehicle Code for enhanced punishment of repeat DWI offenses. Even under such an expansive view of these cases, a 1983 amendment to the habitual offender statute precludes application of such a rule to this ease.
(61) The Legislature enacted the current version of our habitual offender statute in 1977 as part of the Criminal Sentencing Act. In its original form, the statute provided for an enhanced penalty for “[a]ny person convicted of a non-capital felony in this state who has incurred [one, two, three or more] prior felony convictions.” 1977 N.M. Laws, eh. 216, § 6(B), (C), (D). This language is similar to the language that appeared in the earlier version of the habitual offender statute that was in effect when Lujan, Alderete, and Heyward were decided. See 1963 N.M.Laws, ch. 303, § 29-5. In 1983, the Legislature amended this language by inserting the phrase “whether within the Criminal Code or the Controlled Substances Act or not” immediately after the phrase “convicted of a noncapital felony in this state.” 1983 N.M. Laws, ch. 127, § 1. The presence of this phrase in our current statute thus distinguishes it from the statute that was in effect when Lujan, Alderete, and Heyward were decided. See generally Minner v. Kerby, 30 F.3d 1311, 1317 (19th Cir.1994) (New Mexico habitual offender statute could be applied to defendant convicted of narcotics offense, because of 1983 statutory amendment to habitual offender statute).
(62) The 1983 amendment thus provides an important indicator of legislative intent that was absent when these three cases were decided. The amendment’s reference to the Controlled Substances Act indicates that the Legislature intended to overrule Lujan, Alderete, and Heyward. In view of the Legislature’s apparent rejection of these cases, they provide no basis for a general rule that the habitual offender statute is inapplicable whenever the Legislature has devised an enhancement scheme for a specified class of crimes. The statute’s language has a history that is relevant in understanding the Legislature’s intent. As a result of the 1983 amendment, the current statute is not as flexible as the statute Lujan, Alderete, and Heyward construed and applied. The Legislature’s use of the phrase “whether within the Criminal Code or the Controlled Substances Act or not” does not permit the inference that this provision applies to some, but not all, felonies. Indeed, it is difficult to imagine more comprehensive language. I presume that the Forty-First Legislature was aware of Section 31-18-17(B)’s comprehensive language when it drafted the felony DWI statute. See Schnedar, 115 N.M. at 575, 855 P.2d at 564. I would therefore conclude that the Legislature intended that persons convicted of felony DWI should be subject to the provisions of New Mexico’s habitual offender statute in the same manner as other felons.
D. Cases from Other Jurisdictions
(63) Appellate courts in at least six states have recently upheld the application of habitual offender enhancements under circumstances similar to those presented by this appeal. See State v. Campa, 168 Ariz. 407, 814 P.2d 748, 751 (1991) (en banc); Brown v. State, 475 N.W.2d 3, 5 (Iowa 1991); Corman v. Commonwealth, 908 S.W.2d 122, 123-24 (Ken.Ct.App.1995); People v. Bewersdorf, 438 Mich. 55, 475 N.W.2d 231, 237-38 (1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1214, 117 L.Ed.2d 452 (1992); State v. Ewanchen, 799 S.W.2d 607, 609-10 (Mo.1990) (en banc); State v. Brooks, 137 N.H. 541, 629 A.2d 1347, 1349 (1993). As in New Mexico, the statutory schemes in each of these states provide for enhancement, on the basis of repetition, of DWI offenses from misdemeanor to felony status. Each of these states also has a general habitual offender statute that provides for enhanced punishment for multiple felony convictions.
(64)The Supreme Courts of Arkansas, Indiana, and Nebraska, on the other hand, have reached a contrary result. Cf. Freeman v. State, 658 N.E.2d 68 (Ind.1995) (no enhancement under general habitual substance offender statute of repeat conviction for operating a vehicle while intoxicated) with Star nek v. State, 603 N.E.2d 152 (Ind.1992) (no enhancement under general habitual offender statute for conviction of habitual traffic law violator). See also Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988); State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980). However, the language of the statute at issue in Chapman distinguishes that case from the present appeal. The Nebraska felony DWI statute provided a maximum punishment of three years for third or subsequent offenses. This language indicated to the Court that the Legislature intended the punishment of felony DWI to be the same, irrespective of the number of a defendant’s felony DWI convictions. The Nebraska Supreme Court recognized that enhancement of successive felony DWI convictions under Nebraska’s habitual offender statute would be inconsistent with this language. See 287 N.W.2d at 699. I discern no similar legislative pronouncement in New Mexico’s felony DWI statute. To the contrary, our felony DWI statute provides that, upon conviction, “an offender is guilty of a fourth degree felony, as provided in Section 31-18-15.” Section 66-8-102(G). Section 31-18-15(A)(6) in turn provides that the appropriate sentence for a fourth degree felony is 18 months’ imprisonment “unless the court alters such sentence pursuant to the provisions of [the habitual offender statute].” Section 31-18-15(B).
(65) In fact, the legislative intent in Chapman is reminiscent of that in Lujan. As in Lujan, the more specific statute provided a maximum penalty for the offense prescribed, and thus it was viewed as being in conflict with the more general statute. Under those circumstances, this Court held that the more specific statute controlled. Lawson is similar.
(66) A close examination of Indiana’s comprehensive sentencing statute reveals a more complex legislative purpose than discernible in New Mexico’s statutes. Indiana’s laws dictate a progressive punishment scheme for repeat DWI offenders. Freeman, 658 N.E.2d at 70-71; see Ind.Code Ann. § 9-30-5-3 (Michie 1991) (designating felony status to second or subsequent DWI conviction within five years); Ind.Code Ann. § 9-30-10-4 (Michie 1991 & Cum.Supp.1996) (habitual traffic violator). Additionally, a separate but similar scheme exists for punishing “habitual substances offenders.” Ind.Code Ann. § 35-50-2-10 (Michie 1994 and Cum.Supp. 1996). Since “substance offense” as broadly defined includes the crime of DWI, a person convicted of DWI may arguably be subject to the progressively severe punishments of both statutes. Because “[t]he two punishment schemes ... are markedly different,” the Indiana court concluded that the two statutes cannot be harmonized, and as such the more specific statute should supersede the general one. Freeman, 658 N.E.2d at 71. To the contrary, New Mexico’s two statutes that enhance punishment do not conflict. When read together, the DWI statute imposes increased punishment for repeated DWI conduct and characterizes a fourth or subsequent conviction as a fourth degree felony. The habitual offender statute contemplates prior non-DWI-related offenses as a basis for enhanced punishment of a noncapital felony. As such, the statutes are complementary rather than conflicting.
(67)Freeman and Stanek might be read to provide a rule that discrete and independent enhancement statutes will be construed as specific and controlling over more general habitual offender statutes. See Stanek, 603 N.E.2d at 153-54. However, in New Mexico, unlike Indiana, there is a specific reference to the sentencing act within the more specific statute containing a particular enhancement, and there is no apparent conflict between the two statutes. Cf. Bourn, 475 N.W.2d at 5-6 (refusing to apply “rule of statutory construction that specific statutes exclude application of general statutes,” because no “stacking of sentences” occurred). Rather, New Mexico’s statutory scheme is analogous to that of Arizona, see Campa, 814 P.2d at 751, and Iowa, see Bourn, 475 N.W.2d at 6. Although “a general rule does not really emerge from these cases because of the differences in the individual state statutes interpreted,” Bourn, 475 N.W.2d at 6, I am persuaded that more recent decisions are moving away from the older general rule reflected in Lawson and Chapman. Id. I think it is more likely than not that the Legislature adopted recent changes in New Mexico’s DWI law based on the law of other states. I find support for this result in cases construing similar schemes in other states.
E. Rule of Lenity
(68) Defendants also rely on the cases from other jurisdictions, cited above for the proposition that, in interpreting criminal statutes, the rule of lenity should preclude application of both enhancements. The majority opinion argues that the rule of lenity applies. I respectfully disagree.
(69) We have stated that the rule of lenity only applies in situations where overwhelming ambiguity persists or evidence of conflict creates a doubt as to legislative intent after considering the policies, language, structure, and history of the legislation. See State v. Ogden, 118 N.M. 234, 880 P.2d 845, cert. denied, 513 U.S. 936, 115 S.Ct. 336, 130 L.Ed.2d 294 (1994). In such a scenario, the rule operates to prevent enforcement of the harsher result. See Keith, 102 N.M. at 465, 697 P.2d at 148. While sound policy underlies the rule of lenity, we may not read ambiguity into the statutes for the sole purpose of applying the rule. “The rule is not applicable simply because it is possible to construe a criminal statute more narrowly than urged by the State.” State v. Rowell, 121 N.M. 111, 908 P.2d 1379 (1995). In these cases, the two statutes at issue do not conflict, but operate together harmoniously. Thus the rule of lenity on which Defendants have relied ought not be applied. See generally id.; Yparrea, 114 N.M. at 808, 845 P.2d at 1262 (discussing the rule of lenity). The Legislature’s designation of felony status to DWI offenders implicates the habitual offender statute to effectuate a policy of punishing as repeat felons incorrigible drunk drivers with prior felony convictions. Application of the rule of lenity defeats the legislature’s apparent intent.
F. Cruel and Unusual Punishment
(70) Defendants finally argue that enhancement under both the DWI statute and the habitual offender statute constitutes cruel and unusual punishment. See U.S. Const, amend. VII; N.M. Const, art. II, § 13. Defendants appeal from the following sentences: Anaya 9’/¿ years (1 \ years of which was suspended); Gonzales 9% years; Martinez 5% years (1& years of which was suspended); and Nakai 2)k years.
(71) Defendants recognize that the imposition of penalties is a legislative function that will normally receive deference from the courts. However, relying on State v. Arrington, 115 N.M. 559, 855 P.2d 133 (Ct.App. 1993), they argue that a sentence of 9% years for an offense that would be a misdemeanor but for its repetition constitutes cruel and unusual punishment. The Arrington court recognized that in “exceedingly rare cases” a term of imprisonment may be inherently cruel. Id. at 561, 855 P.2d at 135. Accordingly, the Arrington court affirmed the trial court’s determination that a mandatory prison term that would deprive a severe asthma sufferer of special medical needs would constitute cruel and unusual punishment. Id. at 562, 855 P.2d at 136. These cases do not present the sort of “exceedingly rare” circumstances that were present in Arrington. Furthermore, this Court has been very reluctant to second-guess the Legislature’s judgment concerning the appropriate punishment for a particular crime. See State v. Archibeque, 95 N.M. 411, 622 P.2d 1031 (1981) (affirming a sentence of life imprisonment, under the former habitual offender statute, upon a conviction for burglary); see also Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (plurality opinion) (upholding a sentence of life imprisonment without possibility of parole for a conviction of possession of 672 grams of cocaine where defendant had no prior felony convictions). Finally, even in Indiana, which has adopted a rule of construction that favors a more specific over a more general enhancement statute, such arguments have found no sympathy. See Stanek, 603 N.E.2d at 154. The argument that Defendants have been the focus of cruel and unusual punishment seems to me to lack support in the case law.
II.
(72) For all of these reasons I respectfully dissent from the Court’s holding on the second issue addressed. However, I concur in the Court’s resolution of the first issue.
(73) I believe that Defendant Anaya’s judgment and sentence should be vacated and the cause remanded for resentencing. The State having conceded that it failed to prove three prior DWI convictions in sequence, he must be resentenced for misdemeanor DWI. Defendants Kilgore and Irish each raised issues other than the sentencing issues discussed in this opinion. I would remand their causes to the Court of Appeals for resolution of those other issues. I would affirm Defendant Gonzales’ judgment and sentence. I would also affirm Defendant Martinez’ judgment and sentence. In the case of Defendant Nakai, I would affirm the decision of the Court of Appeals, which affirmed his judgment and sentence.
BACA, C.J., concurs.. The statutory definition of felony appears in the Criminal Procedure Act. The habitual offender statute, on the other hand, is part of the Criminal Sentencing Act, NMSA 1978, §§ 31-18-12 to -24 (Repl.Pamp.1994 & Cum.Supp.1996). Moreover, Section 66-8-102(G) appears in the Motor Vehicle Code. While the statutory definition of "felony” that appears in the Criminal Procedure Act may not control the meaning of that term whenever it appears in other statutes, it supports the construction of Section 66-8-102(G) as increasing punishment by classifying a fourth or subsequent DWI conviction as a felony.
2. C. For the third or subsequent offense, or if the offender shall previously have been convicted two [2] or more times in the aggregate of any violation of the laws of the United States or any state, territory or district of the United States, relating to narcotic drugs, or marijuana, the offender shall be fined not less than two thousand dollars ($2,000) and shall be imprisoned not less than ten [10] years nor more than forty [40] years.
Lujan, 76 N.M. at 115, 412 P.2d at 407 (quoting NMSA 1953, § 54-7-15(0).