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HOUSE BILL 39
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Kathleen Cates
AN ACT
RELATING TO CHILDREN; PROVIDING ACCESS TO JUVENILE DELINQUENCY
RECORDS FOR FIREARM BACKGROUND CHECKS; PROHIBITING AN ADULT
SUBJECT TO A JUVENILE DISPOSITION INVOLVING USE OF A FIREARM
FROM RECEIVING, TRANSPORTING OR POSSESSING A FIREARM OR
DESTRUCTIVE DEVICE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 30-7-16 NMSA 1978 (being Laws 1981,
Chapter 225, Section 1, as amended) is amended to read:
"30-7-16. FIREARMS OR DESTRUCTIVE DEVICES--RECEIPT,
TRANSPORTATION OR POSSESSION BY CERTAIN PERSONS--PENALTY.--
A. It is unlawful for the following persons to
receive, transport or possess a firearm or destructive device
in this state:
(1) a felon;
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(2) a person subject to an order of protection
pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978; [or ]
(3) a person convicted of any of the following
crimes:
(a) battery against a household member
pursuant to Section 30-3-15 NMSA 1978;
(b) criminal damage to property of a
household member pursuant to Section 30-3-18 NMSA 1978;
(c) a first offense of stalking pursuant
to Section 30-3A-3 NMSA 1978; or
(d) a crime listed in 18 U.S.C. 921; or
(4) an adult subject to a juvenile disposition
for a delinquent act involving use of a firearm under the
Delinquency Act that would be a felony if committed by an
adult, regardless of whether the judgment resulted in an adult
sentence.
B. A felon or an adult subject to a juvenile
disposition for a delinquent act involving use of a firearm
under the Delinquency Act that would be a felony if committed
by an adult, regardless of whether the judgment resulted in an
adult sentence, found in possession of a firearm shall be
guilty of a third degree felony.
C. A serious violent felon that is found to be in
possession of a firearm shall be guilty of a third degree
felony, and notwithstanding the provisions of Section 31-18-15
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NMSA 1978, shall be sentenced to a basic term of six years
imprisonment.
D. Any person subject to an order of protection
pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978 or convicted
of a crime listed in Paragraph (3) of Subsection A of this
section who receives, transports or possesses a firearm or
destructive device is guilty of a misdemeanor.
E. As used in this section:
(1) "adult subject to a juvenile disposition
for a delinquent act involving use of a firearm" means a person
eighteen years of age or older subject to a juvenile
disposition for a delinquent act involving use of a firearm
under the Delinquency Act; provided that:
(a) less than ten years have passed
since the juvenile disposition involving use of a firearm; and
(b) the person has not been pardoned for
the juvenile disposition involving use of a firearm by the
proper authority;
[(1)] (2) except as provided in Paragraph
[(2)] (3) of this subsection, "destructive device" means:
(a) any explosive, incendiary or poison
gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge
of more than four ounces; 4) missile having an explosive or
incendiary charge of more than one-fourth ounce; 5) mine; or 6)
similar device;
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(b) any type of weapon by whatever name
known that will, or that may be readily converted to, expel a
projectile by the action of an explosive or other propellant,
the barrel or barrels of which have a bore of more than one-
half inch in diameter, except a shotgun or shotgun shell that
is generally recognized as particularly suitable for sporting
purposes; or
(c) any combination of parts either
designed or intended for use in converting any device into a
destructive device as defined in this paragraph and from which
a destructive device may be readily assembled;
[(2)] (3) the term "destructive device" does
not include any device that is neither designed nor redesigned
for use as a weapon or any device, although originally designed
for use as a weapon, that is redesigned for use as a signaling,
pyrotechnic, line throwing, safety or similar device;
[(3)] (4) "felon" means a person convicted of
a felony offense by a court of the United States or of any
state or political subdivision thereof and:
(a) less than ten years have passed
since the person completed serving a sentence or period of
probation for the felony conviction, whichever is later;
(b) the person has not been pardoned for
the felony conviction by the proper authority; and
(c) the person has not received a
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deferred sentence;
[(4)] (5) "firearm" means any weapon that will
or is designed to or may readily be converted to expel a
projectile by the action of an explosion or the frame or
receiver of any such weapon; and
[(5)] (6) "serious violent felon" means a
person convicted of an offense enumerated in Subparagraphs (a)
through (n) of Paragraph (4) of Subsection L of Section 33-2-34
NMSA 1978; provided that:
(a) less than ten years have passed
since the person completed serving a sentence or a period of
probation for the felony conviction, whichever is later;
(b) the person has not been pardoned for
the felony conviction by the proper authority; and
(c) the person has not received a
deferred sentence and completed the total term of deferment as
provided in Section 31-20-9 NMSA 1978."
SECTION 2. Section 32A-2-26 NMSA 1978 (being Laws 1993,
Chapter 77, Section 55, as amended) is amended to read:
"32A-2-26. SEALING OF RECORDS.--
A. On motion by or on behalf of a person who has
been the subject of a delinquency petition or on the court's
own motion, the court shall vacate its findings, orders and
judgments on the petition and order the legal and social files
and records of the court, probation services and any other
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agency in the case sealed. If requested in the motion, the
court shall also order law enforcement files and records
sealed. An order sealing records and files shall be entered if
the court finds that:
(1) two years have elapsed since the final
release of the person from legal custody and supervision or two
years have elapsed since the entry of any other judgment not
involving legal custody or supervision;
(2) the person has not, within the two years
immediately prior to filing the motion, been convicted of a
felony or of a misdemeanor involving moral turpitude or been
found delinquent by a court and no proceeding is pending
seeking such a conviction or finding; and
(3) the person is eighteen years of age or
older or the court finds that good cause exists to seal the
records prior to the child's eighteenth birthday.
B. Reasonable notice of the motion shall be given
to:
(1) the children's court attorney;
(2) the authority granting the release;
(3) the law enforcement officer, department
and central depository having custody of the law enforcement
files and records; and
(4) any other agency having custody of records
or files subject to the sealing order.
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C. Upon the entry of the sealing order, the
proceedings in the case shall be treated as if they never
occurred and all index references shall be deleted. The court,
law enforcement officers and departments and agencies shall
reply, and the person may reply, to an inquiry that no record
exists with respect to the person. Copies of the sealing order
shall be sent to each agency or official named in the order.
D. Inspection of the files and records or the
release of information in the records included in the sealing
order may thereafter be permitted by the court only:
(1) upon motion by the person who is the
subject of the records and only to those persons named in the
motion; and
(2) in its discretion, in an individual case,
to any clinic, hospital or agency that has the person under
care or treatment or to other persons engaged in fact finding
or research.
E. Any finding of delinquency or need of services
or conviction of a crime subsequent to the sealing order may at
the court's discretion be used by the court as a basis to set
aside the sealing order.
F. A court may set aside a sealing order for the
juvenile disposition of a youthful offender and any evidence
given in a hearing in court for a youthful offender for the
purpose of considering the setting of bail or other conditions
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of release of a person charged with a felony whether charged as
an adult or a juvenile.
G. A child who has been the subject of a petition
filed pursuant to the provisions of the Delinquency Act shall
be notified in writing by the department when the child reaches
the age of eighteen or at the expiration of legal custody and
supervision, whichever occurs later, that the department's
records have been sealed and that the court, the children's
court attorney, the child's attorney and the referring law
enforcement agency have been notified that the child's records
are subject to sealing.
H. The department shall seal the child's files and
records when the child reaches the age of eighteen or at the
expiration of the disposition, whichever occurs later. The
department shall notify the children's court attorney, the
child's attorney and the referring law enforcement agency that
the child's records are subject to sealing.
I. Youthful offender records sealed pursuant to
Subsection H of this section may be unsealed by the court along
with any evidence given in a hearing in court for a youthful
offender for the purpose of considering the setting of bail or
other conditions of release of a person charged with a felony,
whether charged as an adult or juvenile.
J. A child who is determined by the court not to be
a delinquent offender shall have the child's files and records
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in the instant proceeding automatically sealed by the court
upon motion by the children's court attorney at the conclusion
of the proceedings.
K. After sealing, the department may store and use
a person's records for research and reporting purposes, subject
to the confidentiality provisions of Section 32A-2-32 NMSA 1978
and other applicable federal and state laws.
L. Records of a juvenile disposition involving use
of a firearm for a delinquent act that would be a felony if
committed by an adult shall be made available to federal
authorities for purposes of conducting a federal instant
background check pursuant to 18 U.S.C. Section 922(t) and state
and local law enforcement for purposes of determining whether a
person may receive, transport or possess a firearm or
destructive device in New Mexico pursuant to Subsection A of
Section 30-7-16 NMSA 1978. "
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