HJC/HB 8/a
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AN ACT
RELATING TO PUBLIC SAFETY; AMENDING THE CRIMINAL COMPETENCY
PROCEDURES TO PROVIDE FOR COMMUNITY-BASED COMPETENCY
RESTORATION FOR NON-DANGEROUS DEFENDANTS, TO EXPAND THE LIST
OF CRIMES FOR WHICH A DEFENDANT MAY BE CRIMINALLY COMMITTED,
TO ALLOW THE COURT TO ADVISE A DISTRICT ATTORNEY TO CONSIDER
INITIATING PROCEEDINGS FOR INVOLUNTARY COMMITMENT OR ASSISTED
OUTPATIENT TREATMENT UPON DISMISSAL OF A CRIMINAL CASE AND TO
ALLOW A COURT TO AUTHORIZE A DISTRICT ATTORNEY OR THE
DEPARTMENT OF HEALTH TO USE THE REPORT OF A COMPETENCY
EVALUATION IN INVOLUNTARY COMMITMENT AND ASSISTED OUTPATIENT
TREATMENT PROCEEDINGS; AMENDING THE ASSISTED OUTPATIENT
TREATMENT ACT TO AUTHORIZE A DISTRICT ATTORNEY OR THE
ATTORNEY GENERAL TO FILE A PETITION FOR ASSISTED OUTPATIENT
TREATMENT AND TO ALLOW A PETITION TO BE FILED UP TO THIRTY
DAYS AFTER A QUALIFIED PROFESSIONAL HAS EXAMINED A DEFENDANT
OR RESPONDENT; CREATING THE CRIME OF UNLAWFUL POSSESSION OF A
WEAPON CONVERSION DEVICE AND PRESCRIBING PENALTIES;
INCREASING THE PENALTIES FOR CERTAIN AUTOMOBILE THEFT FELONY
OFFENSES; INCREASING THE PENALTY FOR THE CRIME OF MAKING A
SHOOTING THREAT; PROVIDING FOR THE ALTERATION OF A BASIC
SENTENCE FOR TRAFFICKING CERTAIN AMOUNTS OF FENTANYL;
AMENDING THE REQUIREMENTS TO OBTAIN A WARRANT TO TEST THE
BLOOD OF A PERSON SUSPECTED OF OPERATING A MOTOR VEHICLE
WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS AND HJC/HB 8/a
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ALLOWING CERTAIN MEDICAL PROFESSIONALS TO DRAW BLOOD FOR THE
PURPOSES OF CHEMICAL BLOOD TESTS; MAKING CONFORMING
AMENDMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-9-1 NMSA 1978 (being Laws 1988,
Chapter 107, Section 1 and Laws 1988, Chapter 108, Section 1,
as amended by Laws 1993, Chapter 240, Section 1 and also by
Laws 1993, Chapter 249, Section 1) is amended to read:
"31-9-1. DETERMINATION OF COMPETENCY--RAISING THE
ISSUE.--
A. When a party or the court raises a question as
to a defendant's competency to stand trial in a criminal
case, the proceeding shall be suspended until the issue is
determined.
B. Unless the case is dismissed upon motion of a
party or through diversion, if the question of a defendant's
competency is raised in a court other than a district court,
the case shall be transferred to the district court."
SECTION 2. Section 31-9-1.1 NMSA 1978 (being Laws 1988,
Chapter 107, Section 2 and Laws 1988, Chapter 108, Section 2,
as amended by Laws 1993, Chapter 240, Section 2 and also by
Laws 1993, Chapter 249, Section 2) is amended to read:
"31-9-1.1. DETERMINATION OF COMPETENCY--EVALUATION AND
DETERMINATION.-- HJC/HB 8/a
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A. A defendant's competency shall be evaluated by
a psychologist or psychiatrist or other qualified
professional recognized by the district court as an expert.
The qualified professional who evaluates a defendant's
competency shall prepare an evaluation report and submit the
report as ordered by the court.
B. An evaluation report shall include a qualified
professional's opinion as to whether a defendant is competent
to stand trial and has:
(1) a sufficient, present ability to consult
with the defendant's lawyer with a reasonable degree of
rational understanding;
(2) a rational and factual understanding of
the proceedings against the defendant; and
(3) the capacity to assist in the
defendant's own defense and to comprehend the reasons for
punishment.
C. If, in the opinion of the qualified
professional, a defendant is not competent to stand trial, an
evaluation report shall include the qualified professional's
opinion as to whether the defendant:
(1) satisfies the criteria for involuntary
commitment in accordance with the Mental Health and
Developmental Disabilities Code and whether:
(a) as a result of a mental disorder, HJC/HB 8/a
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the defendant presents a likelihood of serious harm to the
defendant's self or others;
(b) the defendant needs and is likely
to benefit from involuntary commitment and treatment; and
(c) the proposed commitment is
consistent with the treatment needs of the defendant and with
the least drastic means principle; or
(2) satisfies the criteria for involuntary
treatment in accordance with the Assisted Outpatient
Treatment Act and whether the defendant:
(a) has a primary diagnosis of a mental
disorder;
(b) has demonstrated a history of lack
of compliance with treatment for a mental disorder;
(c) is unwilling or unlikely, as a
result of a mental disorder, to voluntarily participate in
outpatient treatment that would enable the person to live
safely in the community without court supervision;
(d) is in need of assisted outpatient
treatment as the least restrictive appropriate alternative to
prevent a relapse or deterioration likely to result in
serious harm to the defendant's self or others; and
(e) will likely benefit from assisted
outpatient treatment and have the defendant's best interests
served. HJC/HB 8/a
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D. A competency hearing shall be held:
(1) within thirty days from the date an
evaluation report is submitted to the court for an
incarcerated defendant charged with a felony;
(2) within ten days from the date an
evaluation report is submitted to the court for an
incarcerated defendant not charged with a felony; and
(3) within ninety days after an evaluation
report is submitted to the court for a defendant who is not
incarcerated."
SECTION 3. Section 31-9-1.2 NMSA 1978 (being Laws 1988,
Chapter 107, Section 3 and Laws 1988, Chapter 108, Section 3,
as amended) is amended to read:
"31-9-1.2. DETERMINATION OF COMPETENCY--COMMITMENT--
REPORT.--
A. If, after a competency hearing, a court
determines that a defendant is not competent to stand trial,
the court shall determine if the defendant is dangerous. A
defendant who is not competent is dangerous if the court
finds by clear and convincing evidence that the defendant
presents a serious threat of:
(1) committing murder in the first or second
degree, as provided in Section 30-2-1 NMSA 1978;
(2) inflicting great bodily harm, as defined
in Section 30-1-12 NMSA 1978, on another person; HJC/HB 8/a
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(3) committing criminal sexual penetration,
as provided in Section 30-9-11 NMSA 1978;
(4) committing criminal sexual contact of a
minor, as provided in Section 30-9-13 NMSA 1978;
(5) committing abuse of a child, as provided
in Subsection D of Section 30-6-1 NMSA 1978;
(6) violating a provision of the Sexual
Exploitation of Children Act;
(7) committing human trafficking, as
provided in Section 30-52-1 NMSA 1978;
(8) committing aggravated arson, as provided
in Section 30-17-6 NMSA 1978; or
(9) committing any "serious violent offense"
enumerated in Subparagraphs (a) through (n) of Paragraph (4)
of Subsection L of Section 33-2-34 NMSA 1978 with the use of
a firearm.
B. If the court determines that a defendant is not
dangerous, the court may order the defendant to participate
in a community-based competency restoration program or
dismiss the criminal case without prejudice in the interests
of justice; provided that if the court dismisses the case,
the court may:
(1) advise the district attorney to consider
the initiation of involuntary civil commitment proceedings in
accordance with the Mental Health and Developmental HJC/HB 8/a
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Disabilities Code and may detain the defendant for a maximum
of seven days to facilitate initiation of those proceedings;
or
(2) advise the district attorney to consider
initiation of proceedings in accordance with the Assisted
Outpatient Treatment Act but may not detain the defendant for
that purpose.
C. A community-based competency restoration
program is a court-approved program that is designed to
restore a defendant to competency and provided in an
outpatient setting in the community where the defendant
resides. A court may order a defendant to participate in a
community-based competency restoration program for no longer
than ninety days, and:
(1) within thirty days of the date that the
defendant was ordered to participate in a community-based
competency restoration program, the person supervising the
defendant's competency restoration program shall submit a
progress report to the court and both parties that includes:
(a) an initial assessment of the
defendant and a description of the competency restoration
programming that will be provided to the defendant;
(b) a report on the defendant's
amenability to competency restoration;
(c) an assessment of the program's HJC/HB 8/a
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capacity to provide appropriate programming for the
defendant; and
(d) an opinion as to the probability of
the defendant being restored to competency within ninety days
from the date that the court ordered the defendant's
participation in the community-based competency restoration
program;
(2) no later than ninety days from the date
that the court ordered the defendant to participate in a
community-based competency restoration program, the court
shall hold a review hearing and determine if the defendant
has been restored to competency and at least seven days prior
to the review hearing, the person supervising the defendant's
competency restoration program shall submit a written report
that includes:
(a) an opinion as to whether the
defendant has been restored to competency;
(b) if the defendant is receiving
medication, information from the prescribing physician about
the type, dosage and effect of the medication on the
defendant's appearance, actions and demeanor;
(c) if the defendant remains not
competent, an opinion as to whether the defendant satisfies
the criteria for involuntary commitment in accordance with
the Mental Health and Developmental Disabilities Code and HJC/HB 8/a
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whether: 1) as a result of mental disorder, the defendant
presents a likelihood of serious harm to the defendant's self
or others; 2) the defendant needs and is likely to benefit
from involuntary commitment and treatment; and 3) the
proposed commitment is consistent with the treatment needs of
the defendant and with the least drastic means principle; and
(d) if the defendant remains not
competent, an opinion as to whether the defendant satisfies
the criteria for involuntary treatment in accordance with the
Assisted Outpatient Treatment Act and whether the defendant:
1) has a primary diagnosis of a mental disorder; 2) has
demonstrated a history of lack of compliance with treatment
for a mental disorder; 3) is unwilling or unlikely, as a
result of a mental disorder, to voluntarily participate in
outpatient treatment that would enable the defendant to live
safely in the community without court supervision; 4) is in
need of assisted outpatient treatment as the least
restrictive appropriate alternative to prevent a relapse or
deterioration likely to result in serious harm to the
defendant's self or others; and 5) will likely benefit from
assisted outpatient treatment and have the defendant's best
interests served; and
(3) if, after a review hearing, the court
finds that the defendant is competent, the case shall proceed
to trial, but if the court finds that the defendant remains HJC/HB 8/a
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not competent, the case shall be dismissed without prejudice
and the court may advise the district attorney to consider
initiating proceedings in accordance with the Mental Health
and Developmental Disabilities Code or the Assisted
Outpatient Treatment Act.
D. If the court determines that a defendant who is
not competent is dangerous, the district court may commit the
defendant as provided in this section for competency
restoration. If the court orders commitment, the court shall
enter a transport order that provides for the defendant's
return to the local jail within seventy-two hours upon the
defendant being restored to competency, completion of the
competency restoration program or as otherwise required by
the court. A defendant committed for competency restoration
shall be provided with treatment available to persons subject
to civil commitment, and:
(1) shall be detained by the department of
health in a secure, locked facility; and
(2) shall not be released from that facility
except pursuant to an order of the court that committed the
defendant.
E. The department of health shall admit a
defendant for competency restoration within fifteen days of
receipt of the court's order of commitment of an incompetent
defendant and of the necessary and available documents HJC/HB 8/a
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reasonably required for admission pursuant to written
policies adopted by the secretary of health or the
secretary's designee. If the secretary of health or the
secretary's designee determines that the department of health
does not have the ability to meet the needs of the defendant,
the secretary or the secretary's designee may refuse
admission by providing written certification to the
committing court and the parties of the department's
inability to meet the needs of the defendant. The
certification shall be made within seven days of the receipt
of the court's order of commitment and necessary and
available documents reasonably required for admission
pursuant to written policies adopted by the secretary or the
secretary's designee. Within ten days of filing of the
certification, the court shall conduct a hearing for further
disposition of the criminal case.
F. Within thirty days of a defendant's admission
to a department of health facility or an inpatient
psychiatric hospital for competency restoration, the
department shall file with the court, the state and the
defense:
(1) an initial assessment of the defendant
and treatment plan;
(2) a report on the defendant's amenability
to competency restoration; HJC/HB 8/a
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(3) an assessment of the department's
capacity to provide appropriate treatment for the defendant;
and
(4) an opinion as to the probability of the
defendant being restored to competency within nine months
from the date the court determined the defendant is not
competent to stand trial."
SECTION 4. Section 31-9-1.3 NMSA 1978 (being Laws 1988,
Chapter 107, Section 4 and Laws 1988, Chapter 108, Section 4,
as amended) is amended to read:
"31-9-1.3. DETERMINATION OF COMPETENCY--NINETY-DAY
REVIEW--REPORTS--CONTINUING TREATMENT.--
A. Within ninety days after a court issues an
order committing a defendant for competency restoration, the
court, sitting without a jury, shall conduct a review
hearing, unless waived by the defense, and shall determine:
(1) whether the defendant has been restored
to competency or remains not competent to stand trial;
(2) if the defendant remains not competent,
whether the defendant is making progress toward being
restored to competency within nine months from the date the
court determined the defendant is not competent to stand
trial; and
(3) whether the defendant remains dangerous
as determined by the court in accordance with Section HJC/HB 8/a
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31-9-1.2 NMSA 1978.
B. At least seven days prior to the review
hearing, the treatment supervisor shall submit a written
progress report to the court, the state and the defense that
includes:
(1) the clinical findings regarding the
defendant's progress toward competency restoration and the
facts upon which the findings are based;
(2) an opinion as to whether the defendant
has been restored to competency or as to whether the
defendant is making progress toward being restored to
competency within nine months from the date the court
determined the defendant is not competent to stand trial and
whether there is a substantial probability that the defendant
will be restored to competency within nine months from the
date the court determined the defendant is not competent to
stand trial;
(3) an opinion as to whether the defendant
remains dangerous as determined by the court in accordance
with Section 31-9-1.2 NMSA 1978; and
(4) if the defendant is receiving
medication, information from the prescribing physician
indicating the type, the dosage and the effect of the
medication on the defendant's appearance, actions and
demeanor. HJC/HB 8/a
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C. If the district court finds that the defendant
is restored to competency, the district court shall set the
matter for trial; provided that if the defendant is in need
of continued care or treatment and the department of health
agrees to continue to provide it, the district court may
order continued care or treatment of the defendant until the
conclusion of the criminal proceedings.
D. If the district court finds that the defendant
remains not competent but that the defendant is making
progress toward being restored to competency, the district
court may continue or modify its original commitment order
entered pursuant to Section 31-9-1.2 NMSA 1978; provided
that:
(1) the question of the defendant's
competency shall be reviewed again not later than nine months
from the date the court determined the defendant is not
competent to stand trial; and
(2) the treatment supervisor shall submit a
written progress report as specified in Subsection B of this
section at least seven days prior to such hearing.
E. If the district court finds that the defendant
remains not competent, that the defendant is not making
progress toward being restored to competency and that there
is not a substantial probability that the defendant will be
restored to competency within nine months from the date the HJC/HB 8/a
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court determined the defendant is not competent to stand
trial, the court shall proceed pursuant to Section 31-9-1.4
NMSA 1978. However, if the defendant is in need of continued
care and treatment and the department of health agrees to
continue to provide it, the district court may order
continued care or treatment of the defendant by the
department until the conclusion of the criminal proceedings."
SECTION 5. Section 31-9-1.4 NMSA 1978 (being Laws 1988,
Chapter 107, Section 5 and Laws 1988, Chapter 108, Section 5,
as amended) is amended to read:
"31-9-1.4. DETERMINATION OF COMPETENCY--INCOMPETENT
DEFENDANTS.--If at any time the district court determines
that there is not a substantial probability that the
defendant will be restored to competency within nine months
from the date the court determined the defendant is not
competent to stand trial, the district court may:
A. hold a criminal commitment hearing in
accordance with Section 31-9-1.5 NMSA 1978 within three
months if the defendant is charged with:
(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;
(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;
(3) criminal sexual penetration, as provided HJC/HB 8/a
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in Section 30-9-11 NMSA 1978;
(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;
(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;
(6) a crime provided for in the Sexual
Exploitation of Children Act;
(7) human trafficking, as provided in
Section 30-52-1 NMSA 1978;
(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or
(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of
Subsection L of Section 33-2-34 NMSA 1978 with the use of a
firearm;
B. release the defendant from custody and dismiss
the criminal case with prejudice; or
C. dismiss the criminal case without prejudice in
the interest of justice; provided that if the treatment
supervisor reports to the court that the defendant satisfies
the criteria for involuntary commitment in accordance with
the Mental Health and Developmental Disabilities Code, the
department of health shall initiate those proceedings, and
the court may order the defendant confined for a maximum of
seven days to facilitate the initiation of those proceedings; HJC/HB 8/a
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and provided further that the district attorney may initiate
involuntary commitment proceedings in the department's
stead."
SECTION 6. Section 31-9-1.5 NMSA 1978 (being Laws 1988,
Chapter 107, Section 6 and Laws 1988, Chapter 108, Section 6,
as amended) is amended to read:
"31-9-1.5. DETERMINATION OF COMPETENCY--CRIMINAL
COMMITMENT--EVIDENTIARY HEARING.--
A. If the court determines that there is not a
substantial probability that a defendant who is not competent
to stand trial will be restored to competency, a commitment
hearing to determine the sufficiency of the evidence of the
defendant's guilt shall be held if the defendant is charged
with:
(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;
(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;
(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;
(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;
(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978; HJC/HB 8/a
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(6) a crime provided for in the Sexual
Exploitation of Children Act;
(7) human trafficking, as provided in
Section 30-52-1 NMSA 1978;
(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or
(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of
Subsection L of Section 33-2-34 NMSA 1978 with the use of a
firearm.
B. A criminal commitment hearing shall be
conducted by the district court without a jury. The state
and the defendant may introduce evidence relevant to the
question of the defendant's guilt of the crime charged. The
district court may admit hearsay or affidavit evidence on
secondary matters such as testimony to establish the chain of
possession of physical evidence, laboratory reports,
authentication of transcripts taken by official reporters,
district court and business records and public documents.
C. If the evidence does not establish by clear and
convincing evidence that the defendant committed the crime
charged, the district court shall dismiss the criminal case
with prejudice.
D. If the district court finds by clear and
convincing evidence that the defendant committed the crime HJC/HB 8/a
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charged and has not made a finding of dangerousness in
accordance with Section 31-9-1.2 NMSA 1978, the district
court shall dismiss the criminal case without prejudice.
E. If the district court finds by clear and
convincing evidence that the defendant committed the crime
charged and enters a finding that the defendant remains not
competent to stand trial and remains dangerous as determined
by the court in accordance with Section 31-9-1.2 NMSA 1978:
(1) the defendant shall be detained by the
department of health in a secure, locked facility;
(2) the defendant shall not be released from
that secure facility except pursuant to an order of the court
that committed the defendant or upon expiration of the period
of time equal to the maximum sentence to which the defendant
would have been subject had the defendant been convicted in a
criminal proceeding;
(3) significant changes in the defendant's
condition, including trial competency and dangerousness,
shall be reported in writing to the district court, state and
defense; and
(4) at least every two years, the district
court shall conduct a hearing upon notice to the parties and
the department of health charged with detaining the
defendant. At the hearing, the court shall enter findings on
the issues of trial competency and dangerousness: HJC/HB 8/a
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(a) upon a finding that the defendant
is competent to proceed in a criminal case, the court shall
continue with the criminal proceeding;
(b) if the defendant continues to
remain not competent to stand trial and dangerous in
accordance with Section 31-9-1.2 NMSA 1978, the court shall
review the defendant's competency and dangerousness every two
years until expiration of the period of commitment equal to
the maximum sentence to which the defendant would have been
subject had the defendant been convicted in a criminal
proceeding; and
(c) if the court finds upon its two-
year review hearing that the defendant is no longer
dangerous, the defendant shall be released.
F. At any time, including after a court dismisses
a case against a defendant, the department of health or the
district attorney may initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code or proceedings in accordance
with the Assisted Outpatient Treatment Act. If the district
attorney indicates an intent to initiate involuntary
commitment proceedings in accordance with the Mental Health
and Developmental Disabilities Code, the court may detain the
defendant for a maximum of seven days only to facilitate the
initiation of those proceedings at any licensed psychiatric HJC/HB 8/a
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hospital."
SECTION 7. Section 31-9-1.6 NMSA 1978 (being Laws 1997,
Chapter 153, Section 1, as amended) is amended to read:
"31-9-1.6. HEARING TO DETERMINE DEVELOPMENTAL OR
INTELLECTUAL DISABILITY.--
A. Upon motion of a party or the court, the court
shall hold a hearing to determine whether the defendant is
not competent due to a developmental or intellectual
disability as defined in Subsection E of this section, and
the evaluator shall be provided with the necessary and
available documents reasonably required for admission
pursuant to written policies adopted by the secretary of
health or the secretary's designee.
B. If the court finds by a preponderance of the
evidence that the defendant is not competent to stand trial
due to a developmental or intellectual disability and that
there is not a substantial probability that the defendant
will be restored to competency within nine months from the
date the court determined the defendant is not competent to
stand trial, the court shall notify the department of health
of the court's finding. Within sixty days of receipt of the
court's notification, the department of health shall
determine whether the defendant presents a likelihood of
serious harm to the defendant's self or others.
C. If the department of health determines that the HJC/HB 8/a
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defendant presents a likelihood of serious harm to self or
others, the department shall initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code if the defendant is charged
with:
(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;
(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;
(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;
(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;
(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;
(6) a crime provided for in the Sexual
Exploitation of Children Act;
(7) human trafficking, as provided in
Section 30-52-1 NMSA 1978;
(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or
(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of
Subsection L of Section 33-2-34 NMSA 1978 with the use of a HJC/HB 8/a
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firearm.
D. After the involuntary commitment hearing or
upon expiration of fourteen months from the court's initial
determination that the defendant is not competent to stand
trial, the criminal case shall be dismissed without
prejudice.
E. As used in this section, "developmental or
intellectual disability" means significantly subaverage
general intellectual functioning existing concurrently with
deficits in adaptive behavior. An intelligence quotient of
seventy or below on a reliably administered intelligence
quotient test shall be presumptive evidence of developmental
or intellectual disability."
SECTION 8. Section 31-9-2 NMSA 1978 (being Laws 1967,
Chapter 231, Section 3) is amended to read:
"31-9-2. COMPETENCY EVALUATION--MENTAL OR FUNCTIONAL
EXAMINATION.--
A. Upon motion of a party or the court, the court
shall order a mental examination of the defendant before
making any determination of the defendant's competency. If
the defendant is determined to be indigent, the court shall
pay for the costs of the examination from funds available to
the court.
B. A court may authorize a district attorney or
the department of health to use a report of any examination HJC/HB 8/a
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ordered before a determination of a defendant's competency to
stand trial for the purposes of initiating proceedings in
accordance with the Mental Health and Developmental
Disabilities Code or the Assisted Outpatient Treatment Act;
provided that the report remains valid pursuant to the time
limits set forth in that code or act."
SECTION 9. Section 43-1B-4 NMSA 1978 (being Laws 2016,
Chapter 84, Section 4, as amended) is amended to read:
"43-1B-4. PETITION TO THE COURT.--
A. A petition for an order authorizing assisted
outpatient treatment may be filed in the district court for
the county in which the respondent is present or reasonably
believed to be present; provided that such district court is
a party to a memorandum of understanding with a participating
municipality or county.
B. A petition for an order authorizing assisted
outpatient treatment may be filed only by the following
persons:
(1) a person eighteen years of age or older
who resides with the respondent;
(2) the parent or spouse of the respondent;
(3) the sibling or child of the respondent;
provided that the sibling or child is eighteen years of age
or older;
(4) the director of a hospital where the HJC/HB 8/a
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respondent is hospitalized;
(5) the director of a public or charitable
organization or agency or a home where the respondent resides
and that provides mental health services to the respondent;
(6) a qualified professional who either
supervises the treatment of or treats the respondent for a
mental disorder or has supervised or treated the respondent
for a mental disorder within the past forty-eight months;
(7) a surrogate decision-maker; or
(8) a district attorney or the attorney
general.
C. The petition shall be entitled "In the Matter
of _______" and shall include:
(1) each criterion for assisted outpatient
treatment as set forth in Section 43-1B-3 NMSA 1978;
(2) facts that support the petitioner's
belief that the respondent meets each criterion; provided
that the hearing on the petition need not be limited to the
stated facts; and
(3) whether the respondent is present or is
reasonably believed to be present within the county where the
petition is filed.
D. The petition shall be accompanied by an
affidavit of a qualified professional that shall state that:
(1) the qualified professional has HJC/HB 8/a
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personally examined the respondent no more than thirty days
prior to the filing of the petition, that the qualified
professional recommends assisted outpatient treatment for the
respondent and that the qualified professional is willing and
able to testify at the hearing on the petition either in
person or by contemporaneous transmission from a different
location; or
(2) no more than ten days prior to the
filing of the petition, the qualified professional or the
qualified professional's designee has unsuccessfully
attempted to persuade the respondent to submit to an
examination, that the qualified professional has reason to
believe that the respondent meets the criteria for assisted
outpatient treatment and that the qualified professional is
willing and able to examine the respondent and testify at the
hearing on the petition either in person or by
contemporaneous transmission from a different location."
SECTION 10. A new section of Chapter 30, Article 7 NMSA
1978 is enacted to read:
"UNLAWFUL POSSESSION OF A WEAPON CONVERSION DEVICE--
PENALTY.--
A. Unlawful possession of a weapon conversion
device consists of a person knowingly having in that person's
possession an unlawfully obtained weapon conversion device or
knowingly transporting an unlawfully obtained weapon HJC/HB 8/a
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conversion device.
B. A person who commits unlawful possession of a
weapon conversion device is guilty of a third degree felony.
C. As used in this section:
(1) "fully automatic weapon" means a weapon
that shoots, is designed to shoot automatically or can be
readily restored to fire more than one cartridge or shell,
without manual reloading, by a single function of the
trigger;
(2) "semiautomatic weapon" means a repeating
rifle, shotgun or pistol, regardless of barrel or overall
length, that uses a portion of the energy of a firing
cartridge or shell to extract the fired cartridge case or
spent shell and chamber the next round and that requires a
separate function of the trigger to fire each cartridge or
shell; and
(3) "weapon conversion device" means a part
or combination of parts designed and intended to convert a
semiautomatic weapon into a fully automatic weapon."
SECTION 11. Section 30-16D-1 NMSA 1978 (being Laws
1978, Chapter 35, Section 91, as amended by Laws 2009,
Chapter 253, Section 1 and by Laws 2009, Chapter 261, Section
1) is amended to read:
"30-16D-1. UNLAWFUL TAKING OF A VEHICLE OR MOTOR
VEHICLE.-- HJC/HB 8/a
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A. Unlawful taking of a vehicle or motor vehicle
consists of a person taking any vehicle or motor vehicle as
defined by the Motor Vehicle Code intentionally and without
consent of the owner. Whoever commits unlawful taking of a
vehicle or motor vehicle is guilty of a felony as provided in
Section 30-16D-4.1 NMSA 1978.
B. The consent of the owner of the vehicle or
motor vehicle to its taking shall not in any case be presumed
or implied because of the owner's consent on a previous
occasion to the taking of the vehicle or motor vehicle by the
same or a different person.
C. Nothing in this section shall be construed to
prohibit the holder of a lien duly recorded with the motor
vehicle division of the taxation and revenue department from
taking possession of a vehicle to which possession the
lienholder is legally entitled under the provisions of the
instrument evidencing the lien. A holder of a duly recorded
lien who takes possession of a vehicle without the knowledge
of the owner of the vehicle shall immediately notify the
local police authority of the fact that the holder has taken
possession of the vehicle."
SECTION 12. Section 30-16D-2 NMSA 1978 (being Laws
2009, Chapter 253, Section 2 and Laws 2009, Chapter 261,
Section 2) is amended to read:
"30-16D-2. EMBEZZLEMENT OF A VEHICLE OR MOTOR HJC/HB 8/a
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VEHICLE.--
A. Embezzlement of a vehicle or motor vehicle
consists of a person embezzling or converting to the person's
own use a vehicle or motor vehicle as defined by the Motor
Vehicle Code, with which the person has been entrusted, with
the fraudulent intent to deprive the owner of the vehicle or
motor vehicle.
B. Whoever commits embezzlement of a vehicle or
motor vehicle is guilty of a felony as provided in Section
30-16D-4.1 NMSA 1978."
SECTION 13. Section 30-16D-3 NMSA 1978 (being Laws
2009, Chapter 253, Section 3 and Laws 2009, Chapter 261,
Section 3) is amended to read:
"30-16D-3. FRAUDULENTLY OBTAINING A VEHICLE OR MOTOR
VEHICLE.--
A. Fraudulently obtaining a vehicle or motor
vehicle consists of a person intentionally misappropriating
or taking a vehicle or motor vehicle as defined by the Motor
Vehicle Code that belongs to another person by means of
fraudulent conduct, practices or representations.
B. Whoever commits fraudulently obtaining a
vehicle or motor vehicle is guilty of a felony as provided in
Section 30-16D-4.1 NMSA 1978."
SECTION 14. Section 30-16D-4 NMSA 1978 (being Laws
1978, Chapter 35, Section 92, as amended by Laws 2009, HJC/HB 8/a
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Chapter 253, Section 4 and by Laws 2009, Chapter 261, Section
4) is amended to read:
"30-16D-4. RECEIVING OR TRANSFERRING STOLEN VEHICLES OR
MOTOR VEHICLES.--
A. Receiving or transferring a stolen vehicle or
motor vehicle consists of a person who, with intent to
procure or pass title to a vehicle or motor vehicle as
defined by the Motor Vehicle Code that the person knows or
has reason to believe has been stolen or unlawfully taken,
receives or transfers possession of the vehicle or motor
vehicle from or to another or who has in the person's
possession any vehicle that the person knows or has reason to
believe has been stolen or unlawfully taken. This section
shall not apply to an officer of the law engaged at the time
in the performance of the officer's duty as an officer.
B. Whoever commits receiving or transferring a
stolen vehicle or motor vehicle is guilty of a felony as
provided in Section 30-16D-4.1 NMSA 1978."
SECTION 15. A new Section 30-16D-4.1 NMSA 1978 is
enacted to read:
"30-16D-4.1. PENALTIES.--
A. Whoever violates any of the provisions
described in Sections 30-16D-1 through 30-16D-4 NMSA 1978 is
guilty of a:
(1) fourth degree felony for a first HJC/HB 8/a
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offense;
(2) third degree felony for a second
offense, regardless of which provision was the first offense;
and
(3) second degree felony for a third or
subsequent offense, regardless of which provision was the
first or second offense.
B. A defendant who violates multiple provisions
described in Sections 30-16D-1 through 30-16D-4 NMSA 1978
with a single vehicle shall be determined to have committed a
single offense for purposes of this section."
SECTION 16. Section 30-20-16 NMSA 1978 (being Laws
1975, Chapter 285, Section 1, as amended) is amended to read:
"30-20-16. BOMB SCARES AND SHOOTING THREATS UNLAWFUL.--
A. Making a bomb scare consists of intentionally
and maliciously stating to another person that a bomb or
other explosive has been placed in such a position that
property or persons are likely to be injured or destroyed.
B. Making a shooting threat consists of
intentionally and maliciously communicating to another person
a serious expression of an intent to bring a firearm to a
property or use the firearm and an intent to:
(1) place a person or group of persons in
fear of great bodily harm, and a person or group of persons
was placed in fear of great bodily harm; HJC/HB 8/a
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(2) prevent or interrupt the occupation or
use of a public building, and the occupation or use of a
public building was prevented or interrupted; or
(3) cause a response to the threat by a law
enforcement official or volunteer agency organized to deal
with emergencies, and the threat caused a response by a law
enforcement official or volunteer agency organized to deal
with emergencies.
C. Whoever commits making a bomb scare is guilty
of a fourth degree felony.
D. Whoever commits making a shooting threat is
guilty of a fourth degree felony.
E. A court may order a person convicted for the
offense of making a bomb scare or shooting threat to
reimburse the victim of the offense for economic harm caused
by that offense.
F. As used in this section, "economic harm" means
all direct, incidental and consequential financial harm
suffered by a victim of the offense of making a bomb scare or
shooting threat. "Economic harm" includes:
(1) wages, salaries or other compensation
lost as a result of the commission of the offense of making a
bomb scare or shooting threat;
(2) the cost of all wages, salaries or other
compensation paid to employees for time that those employees HJC/HB 8/a
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are prevented from working as a result of the commission of
the offense of making a bomb scare or shooting threat; and
(3) overhead costs incurred for the period
of time that a business is shut down as a result of the
commission of the offense of making a bomb scare or shooting
threat."
SECTION 17. A new section of the Criminal Sentencing
Act is enacted to read:
"TRAFFICKING OF CERTAIN AMOUNTS OF FENTANYL--ALTERATION
OF BASIC SENTENCE.--When a separate finding of fact by a
court or jury shows that a person is in possession of
fentanyl in relation to a crime of trafficking a controlled
substance pursuant to Section 30-31-20 NMSA 1978, the basic
sentence of imprisonment prescribed for the offense in
Section 31-18-15 NMSA 1978 shall be enhanced by up to:
A. three years, if the person is in possession of
between one hundred and five hundred pills, capsules or
tablets containing a detectable amount of fentanyl,
regardless of its concentration, or between ten and fifty
grams of fentanyl powder;
B. five years, if the person is in possession of
more than five hundred pills, capsules or tablets containing
a detectable amount of fentanyl, regardless of its
concentration, or more than fifty grams of fentanyl powder;
or HJC/HB 8/a
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C. five years, if the person has recruited,
coordinated, organized, supervised, directed, managed or
financed another to commit trafficking fentanyl pursuant to
Section 30-31-20 NMSA 1978. The enhancement shall be in
addition to, not a replacement of, charging conspiracy to
commit trafficking pursuant to Section 30-28-2 NMSA 1978."
SECTION 18. Section 66-8-103 NMSA 1978 (being Laws
1967, Chapter 160, Section 1) is amended to read:
"66-8-103. CHEMICAL BLOOD TESTS--PERSONS QUALIFIED TO
PERFORM TESTS--RELIEF FROM LIABILITY.--Only a physician,
licensed professional or practical nurse, emergency medical
technician or certified phlebotomist or a technologist
employed by a hospital or physician shall withdraw blood from
a person in the performance of a chemical blood test. No
such physician, nurse, technician, phlebotomist or
technologist who withdraws blood from a person in the
performance of a chemical blood test that has been directed
by a police officer or by a judicial or probation officer
shall be held liable in any civil or criminal action for
assault, battery, false imprisonment or any conduct of a
police officer except for negligence, nor shall a person
assisting in the performance of the test or a hospital
wherein blood is withdrawn in the performance of the test be
subject to civil or criminal liability for assault, battery,
false imprisonment or any conduct of a police officer except HJC/HB 8/a
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for negligence."
SECTION 19. Section 66-8-104 NMSA 1978 (being Laws
1978, Chapter 35, Section 512) is amended to read:
"66-8-104. CHEMICAL BLOOD TESTS--OFFICER UNAUTHORIZED
TO MAKE ARREST OR DIRECT TEST EXCEPT IN PERFORMANCE OF
OFFICIAL DUTIES.--Nothing in Sections 66-8-103 or 66-8-104
NMSA 1978 is intended to authorize a police officer or a
judicial or probation officer to make an arrest or to direct
the performance of a chemical blood test except in the
performance of that officer's official duties and as
otherwise authorized by law."
SECTION 20. Section 66-8-111 NMSA 1978 (being Laws
1978, Chapter 35, Section 519, as amended) is amended to
read:
"66-8-111. REFUSAL TO SUBMIT TO CHEMICAL TESTS--
TESTING--GROUNDS FOR REVOCATION OF LICENSE OR PRIVILEGE TO
DRIVE.--
A. If a person under arrest for violation of an
offense enumerated in the Motor Vehicle Code refuses upon
request of a law enforcement officer to submit to chemical
tests designated by the law enforcement agency as provided in
Section 66-8-107 NMSA 1978, none shall be administered except
when a municipal judge, magistrate or district judge issues a
search warrant authorizing chemical tests as provided in
Section 66-8-107 NMSA 1978 upon finding in a law enforcement HJC/HB 8/a
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officer's written affidavit that there is probable cause to
believe that the person has driven a motor vehicle while
under the influence of alcohol or a controlled substance
thereby causing the death or great bodily injury of another
person, or there is probable cause to believe that the person
has committed a felony or misdemeanor while under the
influence of alcohol or a controlled substance and that
chemical tests as provided in Section 66-8-107 NMSA 1978 will
produce material evidence in a criminal prosecution.
B. The department, upon receipt of a statement
signed under penalty of perjury from a law enforcement
officer stating the officer's reasonable grounds to believe
the arrested person had been driving a motor vehicle within
this state while under the influence of intoxicating liquor
or drugs and that, upon request, the person refused to submit
to a chemical test after being advised that failure to submit
could result in revocation of the person's privilege to
drive, shall revoke the person's New Mexico driver's license
or any nonresident operating privilege for a period of one
year or until all conditions for license reinstatement are
met, whichever is later.
C. The department, upon receipt of a statement
signed under penalty of perjury from a law enforcement
officer stating the officer's reasonable grounds to believe
the arrested person had been driving a motor vehicle within HJC/HB 8/a
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this state while under the influence of intoxicating liquor
and that the person submitted to chemical testing pursuant to
Section 66-8-107 NMSA 1978 and the test results indicated an
alcohol concentration in the person's blood or breath of
eight one hundredths or more if the person is twenty-one
years of age or older, four one hundredths or more if the
person is driving a commercial motor vehicle or two one
hundredths or more if the person is less than twenty-one
years of age, shall revoke the person's license or permit to
drive or the person's nonresident operating privilege for a
period of:
(1) six months or until all conditions for
license reinstatement are met, whichever is later, if the
person is twenty-one years of age or older;
(2) one year or until all conditions for
license reinstatement are met, whichever is later, if the
person was less than twenty-one years of age at the time of
the arrest, notwithstanding any provision of the Children's
Code; or
(3) one year or until all conditions for
license reinstatement are met, whichever is later, if the
person's license has been revoked previously pursuant to the
provisions of this section, notwithstanding the provisions of
Paragraph (1) of this subsection.
D. The determination of alcohol concentration HJC/HB 8/a
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shall be based on the grams of alcohol in one hundred
milliliters of blood or the grams of alcohol in two hundred
ten liters of breath.
E. If the person subject to the revocation
provisions of this section is a resident or will become a
resident within one year and is without a license to operate
a motor vehicle in this state, the department shall deny the
issuance of a license to the person for the appropriate
period of time as provided in Subsections B and C of this
section.
F. A statement signed by a law enforcement
officer, pursuant to the provisions of Subsection B or C of
this section, shall be sworn to by the officer or shall
contain a declaration substantially to the effect: "I hereby
declare under penalty of perjury that the information given
in this statement is true and correct to the best of my
knowledge.". The statement may be signed and submitted
electronically in a manner and form approved by the
department. A law enforcement officer who signs a statement
knowing that the statement is untrue in any material issue or
matter is guilty of perjury as provided in Section 66-5-38
NMSA 1978."
SECTION 21. Section 66-8-111.1 NMSA 1978 (being Laws
1984, Chapter 72, Section 7, as amended) is amended to read:
"66-8-111.1. LAW ENFORCEMENT OFFICER AGENT FOR HJC/HB 8/a
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DEPARTMENT--WRITTEN NOTICE OF REVOCATION AND RIGHT TO
HEARING.--
A. On behalf of the department, a law enforcement
officer requesting a chemical test or directing the
administration of a chemical test pursuant to Sections
66-8-107 and 66-8-111 NMSA 1978 shall serve immediate written
notice of revocation and of right to a hearing before the
administrative hearings office pursuant to the Implied
Consent Act on a person who:
(1) refuses to permit chemical testing; or
(2) submits to a chemical test the results
of which indicate an alcohol concentration in the person's
blood or breath of:
(a) eight one hundredths or more if the
person is twenty-one years of age or older;
(b) four one hundredths or more if the
person is driving a commercial motor vehicle; or
(c) two one hundredths or more if the
person is less than twenty-one years of age.
B. The written notice of revocation and of a right
to a hearing served on the driver shall be a temporary
license valid for twenty days or, if the driver requests a
hearing pursuant to Section 66-8-112 NMSA 1978, valid until
the date the administrative hearings office issues the order
following that hearing; provided that a written notice of HJC/HB 8/a
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revocation and right to a hearing shall not be a temporary
license for a driver without any otherwise valid driving
privileges in this state.
C. The law enforcement officer shall send to the
department the signed statement required pursuant to Section
66-8-111 NMSA 1978."
SECTION 22. Section 66-13-1 NMSA 1978 (being Laws 2003,
Chapter 241, Section 1) is amended to read:
"66-13-1. SHORT TITLE.--Chapter 66, Article 13 NMSA
1978 may be cited as the "Boating While Intoxicated Act"."
SECTION 23. Section 66-13-6 NMSA 1978 (being Laws 2003,
Chapter 241, Section 6) is amended to read:
"66-13-6. CHEMICAL BLOOD TESTS--PERSONS QUALIFIED TO
PERFORM TESTS--RELIEF FROM CIVIL AND CRIMINAL LIABILITY.--
Only a physician, licensed professional or practical nurse,
emergency medical technician or certified phlebotomist or a
technologist employed by a hospital or physician shall
withdraw blood from a person in the performance of a chemical
blood test. A physician, nurse, technician, phlebotomist or
technologist who withdraws blood from a person in the
performance of a chemical blood test that has been directed
by a law enforcement officer, or by a judicial or probation
officer, shall not be held liable in a civil or criminal
action for assault, battery, false imprisonment or any
conduct of a law enforcement officer, except for negligence, HJC/HB 8/a
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nor shall a person assisting in the performance of the test,
or a hospital wherein blood is withdrawn in the performance
of the test, be subject to civil or criminal liability for
assault, battery, false imprisonment or any conduct of a law
enforcement officer, except for negligence."
SECTION 24. Section 66-13-7 NMSA 1978 (being Laws 2003,
Chapter 241, Section 7) is amended to read:
"66-13-7. CHEMICAL BLOOD TEST--OFFICER UNAUTHORIZED TO
MAKE ARREST OR DIRECT TEST EXCEPT IN PERFORMANCE OF OFFICIAL
DUTIES.--Nothing in the Boating While Intoxicated Act is
intended to authorize a law enforcement officer, or a judicial
or probation officer, to make an arrest or direct the
performance of a chemical blood test, except in the
performance of that officer's official duties or as otherwise
authorized by law."