¶1Supplemental Opinion on Denial of Rehearing
¶2The trial court held the sentencing provision of the Omnibus DWI Act to be mandatory; that is, where imprisonment is required, such a sentence cannot be reduced or suspended by the judge. We unanimously upheld this decision, following the clear language of the act which reads:
75-2504 Imprisonment for first and subsequent offenses.
(a) Any person who pleads guilty, nolo contendere or is found guilty of violating Section 3 [§ 75-2503] of this Act may, for a first offense, be imprisoned for no less than twenty-four (24) hours and no more than one (1) year (except that the court may order public service in lieu of jail and in such instance the court shall include the reasons therefor in its written order of judgment).
(b) Any person who pleads guilty, nolo contendere or is found guilty of violating Section 3 of this Act shall be imprisoned:
¶3(1) for no less than seven (7) days and no more than one (1) year for the second offense occurring within three (3) years of the first offense;
¶4(2) for no less than ninety (90) days nor more than one (1) year for the third offense occurring within three (3) years of the first offense;
¶5(3) any person who pleads guilty, nolo contendere, or is found guilty of violating Section 3 of this Act for the fourth or subsequent offense occurring within three (3) years of the first offense shall be guilty of a felony punishable by imprisonment for at least one (1) year but not more than six (6) years. (Italics supplied.)
¶6On rehearing some of our members have changed their minds. There could be nothing more plain in the legislative intent that the purpose of the act is to take from the judges certain discretionary powers and to impose mandatory sentences. Paragraph (a) uses the word “may” and undoubtedly we all accept the meaning of that word to mean “may;” paragraph (b) says “shall be imprisoned” and that statement is just as unequivocal.
¶7One reason for the act is that the judges have not enforced the prior law, even though parts of it were mandatory. Those provisions were often avoided by allowing a reduction of a charge, or jailing on weekends or at the convenience of the defendant.
¶8In this act, the power to reduce a charge was taken from the judges and imprisonment was made mandatory. Section 75-2505 states that a person “shall be fined.” Section 75-2506 states that a court “shall not pronounce sentence until receipt of the presentence report.” Section 75-2509 states [hjereafter, no circuit judge nor municipal judge may utilize the provisions of Act 346 of 175 in instances where the defendant is charged with violating Section 3 [§ 75-2503] of this Act.” Section 75-2510 (a) states [e]very magistrate or judge of a court shall keep or cause to be kept a record of every violation of this Act presented to said court, and shall keep a record of every official action by said court. . . .” Section 75-2510 (b) states “every said magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of said court. . . .” Section 75-2511 states “[u]pon arraignment the judge shall issue such person a temporary permit to expire on the date of the trial.” Section 75-2512 states a person who drives after suspension or revocation of their license “shall be imprisoned for ten (10) days.” (Italics supplied.)
¶9The drafters of the criminal code recognized that there may be statutes later enacted which have their own penal provisions, unaffected by the criminal code. Ark. Stat. Ann. § 41-901 (1) (e) (Repl. 1977), which classifies felonies and their respective punishments, expressly deals with this situation and its commentary states: “Subsection (1) (e) would also apply if a future legislature, either intentionally or accidentally, enacts a felony statute that includes its own penal provision.” (Italics supplied.) The legislature did not have to even refer to the criminal code to make certain sentences mandatory. The Omnibus DWI Act can stand alone in this regard.
¶10Could a law be more plain that the legislature wanted it unmistakeably clear certain things were mandatory? The legislature, not the courts, decides what is a crime and, within limits, what a sentence will be. So long as those sentences are not unconstitutional for some reason, it is our duty to enforce those laws. To do otherwise in this case would be to subvert a clear prerogative of the legislature.