For a crime to be a “burglary” it comes down to one word: “entry.”
What a victim may think was a burglary, by law in some cases turns out not to be. And perpetrators who don’t actually enter a vehicle — like Abdul Muqqdin who allegedly punched a hole in a gas tank to steal fuel — can’t be tried on that charge.
A recent unanimous New Mexico Supreme Court ruling — which overturned a state Court of Appeals decision that had said the burglary law applied to Muqqddin — now has prosecutors re-evaluating when a burglary charge applies.
Burglary is a felony offense that requires “unauthorized entry to a vehicle, watercraft, aircraft, dwelling or other structure … with the intent to commit any felony or theft therein.” It is punishable by up to three years in prison.
According to the opinion authored by Justice Richard C. Bosson, the state’s lower courts over time have “expanded significantly the reach of the burglary statute … without any parallel change in the statute.”
Bosson wrote that the Legislature did not intend for burglary to be used as an enhancement for crimes that carry lesser penalties. “This can easily lead to a punishment that may not fit the actions of the accused,” he wrote.
However, Joe Q. Citizen, looking at his car sans new mag wheels or toting up how much it will cost to have a new gas tank installed, might not appreciate the distinction of what may be mere inches of penetration of the vehicle’s skin.
Property crimes are a real concern to average citizens. You don’t have to live in one of Albuquerque’s high crime areas to have experienced a break-in or to have heard of one in your generally safe neighborhood. A newly released FBI annual crime report shows property crime in Albuquerque rose about 6 percent.
Still, the high court has spoken. So John Q.’s recourse is to ask the Legislature either to reaffirm the law as written or expand it as some other states have done by including language about “parts” of vehicles or structures in their laws covering burglary.
Similarly, the Legislature is the only recourse for families of victims and bicycle safety advocates who think sentencing options for drivers who kill or severely injure bicyclists are inadequate.
Case in point: Carol Svinarich, who struck and killed a bicyclist with her SUV in January — could have gotten 90 days in jail and a $300 fine for her no contest plea to a misdemeanor charge of careless driving. But Svinarich, who had a DWI arrest after Scott “Dwane” Lane’s death, was sentenced Friday to 90 days of home arrest with an alcohol-sensing ankle bracelet. She will have to pay the $300 fine and $17,560 in restitution to the family for medical and other costs, but to the family the sentence is an insult.
The Duke City Wheelmen bicyclists group intends to ask the Legislature for tougher punishments and also says clarifying the distinction between careless driving, a misdemeanor, and reckless driving, a felony, would be “a huge step.”
Whether through a clearer or expanded definition of burglary or through penalties that better take into account to severity of harm a motor vehicle can inflict on a bicyclist, at the end of the day the public should feel justice has been served.
If the law needs tweaking, then the Legislature should give these two issues thoughtful consideration.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.