SB0510

SENATE BILL 510

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

William E. Sharer and Pat Woods and Crystal Brantley

and Anthony L. Thornton and Nicholas A. Paul

AN ACT

RELATING TO PUBLIC SAFETY; REMOVING THE TIME LIMITATION FOR COMMENCING PROSECUTION OF HUMAN TRAFFICKING; INCREASING THE AGE FOR SEXUAL EXPLOITATION OF CHILDREN BY PROSTITUTION TO EIGHTEEN; AMENDING SECTIONS OF THE CONTROLLED SUBSTANCES ACT; PROVIDING A PENALTY FOR WHEN THE TRAFFICKING OF CERTAIN CONTROLLED SUBSTANCES, CONTROLLED SUBSTANCE ANALOGS OR COUNTERFEIT SUBSTANCES RESULTS IN THE DEATH OF A HUMAN BEING; ADDING HUMAN TRAFFICKING AND OPERATING A STASH HOUSE TO THE DEFINITION OF "RACKETEERING"; AMENDING THE ELEMENTS OF HUMAN TRAFFICKING; PROVIDING A DEFINITION OF "HARM"; PROHIBITING CERTAIN DEFENSES IN A PROSECUTION FOR HUMAN TRAFFICKING; CREATING THE CRIME OF OPERATING A STASH HOUSE; PROVIDING FACTORS TO BE CONSIDERED IN DETERMINING PRETRIAL RELEASE; PROVIDING THAT A REPORT OF A COMPETENCY EVALUATION SHALL INCLUDE A QUALIFIED PROFESSIONAL'S OPINION AS TO WHETHER A DEFENDANT IS COMPETENT TO STAND TRIAL AND, IF THE PROFESSIONAL BELIEVES THE DEFENDANT IS NOT COMPETENT, TO INCLUDE AN OPINION AS TO WHETHER THE DEFENDANT SATISFIES THE CRITERIA FOR INVOLUNTARY COMMITMENT OR ASSISTED OUTPATIENT TREATMENT; PROVIDING FOR COMMUNITY-BASED COMPETENCY RESTORATION FOR NON-DANGEROUS DEFENDANTS; EXPANDING THE LIST OF CRIMES FOR WHICH A DEFENDANT MAY BE CRIMINALLY COMMITTED; PROVIDING FOR THE COURT TO ADVISE A DISTRICT ATTORNEY TO CONSIDER INITIATING PROCEEDINGS FOR INVOLUNTARY COMMITMENT OR ASSISTED OUTPATIENT TREATMENT UPON DISMISSAL OF A CRIMINAL CASE; ALLOWING 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 DELINQUENCY ACT; EXPANDING THE DEFINITIONS FOR "SERIOUS YOUTHFUL OFFENDER" AND "YOUTHFUL OFFENDER"; PROVIDING FOR TRANSPORT OF A SERIOUS YOUTHFUL OFFENDER TO A DISTRICT COURT WHEN ORDERED AND FOR THAT OFFENDER TO BE SEGREGATED FROM ADULTS; REMOVING THE REQUIREMENT THAT A CHILDREN'S COURT ATTORNEY CONSULT PROBATION SERVICES BEFORE FILING A DELINQUENCY PETITION; REMOVING THE REQUIREMENT THAT A DETENTION RISK ASSESSMENT BE COMPLETED BEFORE A CHILD IS PLACED IN DETENTION; PROVIDING THAT A DETAINED CHILD BE TRANSFERRED TO AN ADULT FACILITY IF THE CHILD REACHES EIGHTEEN YEARS OF AGE; EXPANDING THE COURT'S DISCRETION TO HOLD A DETENTION HEARING BY MEANS OF ELECTRONIC COMMUNICATION; PROVIDING THAT A SERIOUS YOUTHFUL OFFENDER FOURTEEN YEARS OF AGE OR OLDER MAY WAIVE THE SERIOUS YOUTHFUL OFFENDER'S RIGHT TO AN AMENABILITY HEARING; PROVIDING THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT AND THE CORRECTIONS DEPARTMENT WITH DISCRETION TO PREPARE CERTAIN PREDISPOSITION REPORTS; REMOVING LIMITATIONS ON THE TYPES OF COMMITMENT A COURT MAY ORDER; PROVIDING THAT A COURT MAY NOT WEIGH ONE AMENABILITY FACTOR MORE HEAVILY THAN ANOTHER FOR SENTENCING PURPOSES; PROVIDING A COURT WITH DISCRETION TO EXTEND A JUDGMENT UP TO THE DATE A CHILD REACHES TWENTY-FIVE YEARS OF AGE; ELIMINATING THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT'S EXCLUSIVE JURISDICTION AND AUTHORITY TO RELEASE AN ADJUDICATED DELINQUENT CHILD; PROVIDING THAT THE STANDARD OF PROOF IN A PROBATION REVOCATION PROCEEDING IS PREPONDERANCE OF THE EVIDENCE; AUTHORIZING A PARTY TO REFERENCE SEALED JUVENILE RECORDS FOR THE PURPOSES OF A HEARING REGARDING PRETRIAL DETENTION, CONDITIONS OF RELEASE OR SENTENCING; ADDING VICTIMS OF HUMAN TRAFFICKING AND SEXUAL EXPLOITATION OF CHILDREN TO THE VICTIMS OF CRIME ACT; PROHIBITING EARNED MERITORIOUS DEDUCTIONS FOR A HUMAN TRAFFICKING SENTENCE; 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; MAKING CONFORMING AMENDMENTS; REVISING AND PROVIDING PENALTIES; PRESCRIBING FINES; REPEALING SECTION 32A-2-32.1 NMSA 1978 (BEING LAWS 2007, CHAPTER 96, SECTION 1); MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 30-1-8 NMSA 1978 (being Laws 1963, Chapter 303, Section 1-8, as amended) is amended to read:

"30-1-8. TIME LIMITATIONS FOR COMMENCING PROSECUTION.--A person shall not be prosecuted, tried or punished in any court of this state unless the indictment is found or information or complaint is filed within the time as provided:

A. for a second degree felony, within six years from the time the crime was committed;

B. for a third or fourth degree felony, within five years from the time the crime was committed;

C. for a misdemeanor, within two years from the time the crime was committed;

D. for a petty misdemeanor, within one year from the time the crime was committed;

E. for any crime against or violation of Section 51-1-38 NMSA 1978, within three years from the time the crime was committed;

F. for a felony pursuant to Section 7-1-71.3, 7-1-72 or 7-1-73 NMSA 1978, within five years from the time the crime was committed; provided that for a series of crimes involving multiple filing periods within one calendar year, the limitation shall begin to run on December 31 of the year in which the crimes occurred;

G. for an identity theft crime pursuant to Section 30-16-24.1 NMSA 1978, within five years from the time the crime was discovered;

H. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed; and

I. for a capital felony, a first degree violent felony, [or] second degree murder pursuant to Subsection B of Section 30-2-1 NMSA 1978 or any crime against or in violation of Section 30-52-1 NMSA 1978, no limitation period shall exist, and prosecution for these crimes may commence at any time after the occurrence of the crime."

SECTION 2. Section 30-6A-4 NMSA 1978 (being Laws 1984, Chapter 92, Section 4, as amended) is amended to read:

"30-6A-4. SEXUAL EXPLOITATION OF CHILDREN BY PROSTITUTION.--

A. Any person knowingly receiving any pecuniary profit as a result of a child under the age of [sixteen] eighteen engaging in a prohibited sexual act with another is guilty of a second degree felony, unless the child is under the age of thirteen, in which event the person is guilty of a first degree felony.

B. Any person knowingly hiring or offering to hire a child under the age of [sixteen] eighteen to engage in any prohibited sexual act is guilty of a second degree felony.

C. Any parent, legal guardian or person having custody or control of a child under [sixteen] eighteen years of age who knowingly permits that child to engage in or to assist any other person to engage in any prohibited sexual act or simulation of such an act for the purpose of producing any visual or print medium depicting such an act is guilty of a third degree felony.

D. In a prosecution for sexual exploitation of children by prostitution, it shall not constitute a defense to prosecution that the defendant's intended victim was a peace officer posing as a child under eighteen years of age."

SECTION 3. Section 30-31-20 NMSA 1978 (being Laws 1972, Chapter 84, Section 20, as amended) is amended to read:

"30-31-20. TRAFFICKING CONTROLLED SUBSTANCES--VIOLATION.--

A. As used in the Controlled Substances Act, "traffic" means the:

(1) manufacture of a controlled substance enumerated in Schedules I through V or a controlled substance analog [as defined in Subsection W of Section 30-31-2 NMSA 1978];

(2) distribution, sale, barter or giving away of:

(a) a controlled substance enumerated in Schedule I or II that is a narcotic drug;

(b) a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; [or]

(d) a counterfeit substance of a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; or

[(c)] (e) methamphetamine, its salts, isomers and salts of isomers; or

(3) possession with intent to distribute:

(a) a controlled substance enumerated in Schedule I or II that is a narcotic drug;

(b) a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; [or]

(d) a counterfeit substance of a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug; or

[(c)] (e) methamphetamine, its salts, isomers and salts of isomers.

B. Except as authorized by the Controlled Substances Act, it is unlawful for a person to intentionally traffic. A person who violates this subsection is:

(1) for the first offense, except as provided in Paragraph (2) of this subsection, guilty of a second degree felony for trafficking a controlled substance and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; [and] provided that the person shall serve a minimum term of imprisonment of nine years;

(2) for the first offense resulting in the death of a human being, guilty of a second degree felony for trafficking a controlled substance resulting in the death of a human being and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; provided that the person shall serve a minimum term of imprisonment of twelve years;

[(2)] (3) for the second and subsequent offenses, except as provided in Paragraph (4) of this subsection, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(4) for the second and subsequent offenses, if the offense results in the death of a human being, guilty of a first degree felony for trafficking a controlled substance resulting in the death of a human being and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. A person who knowingly violates Subsection B of this section within a drug-free school zone excluding private property residentially zoned or used primarily as a residence is guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

SECTION 4. Section 30-31-21 NMSA 1978 (being Laws 1972, Chapter 84, Section 21, as amended) is amended to read:

"30-31-21. DISTRIBUTION TO A MINOR.--

A. Except as authorized by the Controlled Substances Act, no person who is eighteen years of age or older shall intentionally distribute a controlled substance to a person under the age of eighteen years.

B. Except as provided in Subsection C of this section, any person who violates this section with respect to a controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of any controlled substance enumerated in Schedule I, II, III or IV is:

(1) for the first offense, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(2) for the second and subsequent offenses, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. A person who violates this section with respect to a controlled substance enumerated in Schedule I or II that is a narcotic drug or a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug, methamphetamine, its salts, isomers or salts of isomers as enumerated in Schedule II or a controlled substance analog of methamphetamine, its salts, isomers or salts of isomers is guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

SECTION 5. Section 30-31-22 NMSA 1978 (being Laws 1972, Chapter 84, Section 22, as amended) is amended to read:

"30-31-22. CONTROLLED OR COUNTERFEIT SUBSTANCES--DISTRIBUTION PROHIBITED.--

A. Except as authorized by the Controlled Substances Act, it is unlawful for a person to intentionally distribute or possess with intent to distribute a controlled substance or a controlled substance analog except a substance enumerated in Schedule I or II that is a narcotic drug, a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug or methamphetamine, its salts, isomers and salts of isomers. A person who violates this subsection with respect to:

(1) synthetic cannabinoids is:

(a) for the first offense, guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(b) for the second and subsequent offenses, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(c) for the first offense, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(d) for the second and subsequent offenses, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(2) any other controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a controlled substance enumerated in Schedule I, II, III or IV except a substance enumerated in Schedule I or II that is a narcotic drug, a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug or methamphetamine, its salts, isomers and salts of isomers, is:

(a) for the first offense, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(b) for the second and subsequent offenses, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(3) a controlled substance enumerated in Schedule V or a controlled substance analog of a controlled substance enumerated in Schedule V is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than five hundred dollars ($500) or by imprisonment for a definite term not less than one hundred eighty days but less than one year, or both.

B. It is unlawful for a person to distribute gamma hydroxybutyric acid or flunitrazepam to another person without that person's knowledge and with intent to commit a crime against that person, including criminal sexual penetration. For the purposes of this subsection, "without that person's knowledge" means the person is unaware that a substance with the ability to alter that person's ability to appraise conduct or to decline participation in or communicate unwillingness to participate in conduct is being distributed to that person. Any person who violates this subsection is:

(1) for the first offense, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(2) for the second and subsequent offenses, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Except as authorized by the Controlled Substances Act, it is unlawful for a person to intentionally create or deliver, or possess with intent to deliver, a counterfeit substance. A person who violates this subsection with respect to:

(1) a counterfeit substance enumerated in Schedule I, II, III or IV, except a counterfeit substance of a controlled substance enumerated in Schedule I or II that is a narcotic drug or a counterfeit substance of a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(2) a counterfeit substance enumerated in Schedule V is guilty of a petty misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100) or by imprisonment for a definite term not to exceed six months, or both.

D. A person who knowingly violates Subsection A or C of this section while within a drug-free school zone with respect to:

(1) synthetic cannabinoids is:

(a) for the first offense, guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(b) for the second and subsequent offenses, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(c) for the first offense, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(d) for the second and subsequent offenses, if more than one hundred pounds is possessed with intent to distribute or distributed or both, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(a) for the first offense, guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(b) for the second and subsequent offenses, guilty of a first degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;

(3) a controlled substance enumerated in Schedule V or a controlled substance analog of a controlled substance enumerated in Schedule V is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(4) the intentional creation, delivery or possession with the intent to deliver:

(a) a counterfeit substance enumerated in Schedule I, II, III or IV, except a counterfeit substance of a controlled substance enumerated in Schedule I or II that is a narcotic drug or a counterfeit substance of a controlled substance analog of a controlled substance enumerated in Schedule I or II that is a narcotic drug, is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(b) a counterfeit substance enumerated in Schedule V is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment for a definite term not less than one hundred eighty days but less than one year, or both.

E. Notwithstanding the provisions of Subsection A of this section, distribution of a small amount of synthetic cannabinoids for no remuneration shall be treated as provided in Paragraph (1) of Subsection B of Section 30-31-23 NMSA 1978."

SECTION 6. Section 30-42-3 NMSA 1978 (being Laws 1980, Chapter 40, Section 3, as amended) is amended to read:

"30-42-3. DEFINITIONS.--As used in the Racketeering Act:

A. "racketeering" means any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year, involving any of the following cited offenses:

(1) murder, as provided in Section 30-2-1 NMSA 1978;

(2) robbery, as provided in Section 30-16-2 NMSA 1978;

(3) kidnapping, as provided in Section 30-4-1 NMSA 1978;

(4) forgery, as provided in Section 30-16-10 NMSA 1978;

(5) larceny, as provided in Section 30-16-1 NMSA 1978;

(6) fraud, as provided in Section 30-16-6 NMSA 1978;

(7) embezzlement, as provided in Section 30-16-8 NMSA 1978;

(8) receiving stolen property, as provided in Section 30-16-11 NMSA 1978;

(9) bribery, as provided in Sections 30-24-1 through 30-24-3.1 NMSA 1978;

(10) gambling, as provided in Sections 30-19-3, 30-19-13 and 30-19-15 NMSA 1978;

(11) illegal kickbacks, as provided in Sections 30-41-1 and 30-41-2 NMSA 1978;

(12) extortion, as provided in Section 30-16-9 NMSA 1978;

(13) trafficking in controlled substances, as provided in Section 30-31-20 NMSA 1978;

(14) arson and aggravated arson, as provided in Subsection A of Section 30-17-5 and Section 30-17-6 NMSA 1978;

(15) promoting prostitution, as provided in Section 30-9-4 NMSA 1978;

(16) criminal solicitation, as provided in Section 30-28-3 NMSA 1978;

(17) fraudulent securities practices, as provided in the New Mexico Uniform Securities Act;

(18) loan sharking, as provided in Sections 30-43-1 through 30-43-5 NMSA 1978;

(19) distribution of controlled substances or controlled substance analogues, as provided in Sections 30-31-21 and 30-31-22 NMSA 1978;

(20) a violation of the provisions of Section 30-51-4 NMSA 1978;

(21) unlawful taking of a vehicle or motor vehicle, as provided in Section 30-16D-1 NMSA 1978;

(22) embezzlement of a vehicle or motor vehicle, as provided in Section 30-16D-2 NMSA 1978;

(23) fraudulently obtaining a vehicle or motor vehicle, as provided in Section 30-16D-3 NMSA 1978;

(24) receiving or transferring stolen vehicles or motor vehicles, as provided in Section 30-16D-4 NMSA 1978;

(25) altering or changing the serial number, engine number, decal or other numbers or marks of a vehicle or motor vehicle, as provided in Section 30-16D-6 NMSA 1978; [and]

(26) trafficking cannabis products, as provided in Section 26-2C-28 NMSA 1978;

(27) human trafficking, as provided in Section

30-52-1 NMSA 1978; and

(28) operating a stash house, as provided in Section 8 of this 2025 act;

B. "person" means an individual or entity capable of holding a legal or beneficial interest in property;

C. "enterprise" means a sole proprietorship, partnership, corporation, business, labor union, association or other legal entity or a group of individuals associated in fact although not a legal entity and includes illicit as well as licit entities; and

D. "pattern of racketeering activity" means engaging in at least two incidents of racketeering with the intent of accomplishing any of the prohibited activities set forth in Subsections A through D of Section 30-42-4 NMSA 1978; provided that at least one of the incidents occurred after February 28, 1980 and the last incident occurred within five years after the commission of a prior incident of racketeering."

SECTION 7. Section 30-52-1 NMSA 1978 (being Laws 2008, Chapter 17, Section 1) is amended to read:

"30-52-1. HUMAN TRAFFICKING.--

A. Human trafficking consists of a person knowingly:

(1) recruiting, soliciting, enticing, transporting, harboring, maintaining, patronizing, providing or obtaining by any means another person with the intent or knowledge that force, fraud or coercion will be used to subject the person to labor, services or commercial sexual activity;

(2) recruiting, soliciting, enticing, transporting, harboring, maintaining, patronizing, providing or obtaining by any means a person under the age of eighteen years with the intent or knowledge that the person will be caused to engage in commercial sexual activity; [or]

(3) benefiting, financially or by receiving anything of value, from the labor, services or commercial sexual activity of another person [with the knowledge] where the person benefiting knew or should have known that force, fraud or coercion was used to obtain the labor, services or commercial sexual activity; or

(4) utilizing a person's services to compel the repayment of a financial debt or other obligation when the person who holds or enforces the debt or obligation does not pay the laborer in accordance with state and local law and has actual or perceived control over the laborer, and the laborer has no reasonable means to terminate the labor arrangement.

B. The attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section.

C. Whoever commits human trafficking is guilty of a [third] second degree felony; except if the victim is under the age of

[(1) sixteen, the person is guilty of a second degree felony; or

(2) thirteen] eighteen, the person is guilty of a first degree felony.

D. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision. Each violation of this section constitutes a separate offense and shall not merge with any other offense.

E. In a prosecution pursuant to this section, a human trafficking victim shall not be charged with accessory to the crime of human trafficking or for prostitution as provided in Section 30-9-2 NMSA 1978.

F. A person convicted of human trafficking shall, in addition to any other punishment, be ordered to make restitution to the victim for the gross income or value of the victim's labor or services and any other actual damages in accordance with Section 31-17-1 NMSA 1978.

G. As used in this section:

(1) "coercion" means:

(a) causing or threatening to cause harm to or using physical restraint on any person;

(b) using or threatening to use physical force or restraint against any person;

(d) threatening to report the immigration status of any person to governmental authorities; or

(e) knowingly destroying, concealing, removing, confiscating or retaining any actual or purported government document of any person; [and]

(2) "commercial sexual activity" means any sexual act or sexually explicit exhibition for which anything of value is given, promised to or received by any person; and

(3) "harm" means any harm, whether physical or nonphysical, including psychological, financial or reputational harm, that is sufficiently serious under all of the surrounding circumstances to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing compelled labor, services or commercial sexual activity to avoid or attempt to avoid receiving harm.

H. In a prosecution for human trafficking pursuant to this section, evidence of the following facts or conditions shall not constitute a defense to prosecution:

(1) the victim's sexual history or history of commercial sexual activity, specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and reputational evidence of the victim's sexual conduct;

(2) the consent of a minor;

(3) a mistake as to the victim's age; and

(4) that the defendant's intended victim was a peace officer posing as a child under eighteen years of age.

I. A person convicted of human trafficking pursuant to this section shall be subject to the Forfeiture Act."

SECTION 8. A new section of Chapter 30 NMSA 1978 is enacted to read:

"[NEW MATERIAL] OPERATING A STASH HOUSE--PENALTY.--

A. The crime of operating a stash house consists of a person knowingly using or allowing a property or place that is under the person's control to be used:

(1) to unlawfully hide or store a controlled substance, firearm, destructive device or money in the furtherance of a crime; or

(2) for the purpose of human trafficking pursuant to Section 30-52-1 NMSA 1978.

B. A person who commits operating a stash house is guilty of a third degree felony."

SECTION 9. A new section of Chapter 31, Article 3 NMSA 1978 is enacted to read:

"[NEW MATERIAL] FACTORS TO BE CONSIDERED IN DETERMINING PRETRIAL RELEASE.--In determining if a defendant shall be released pending trial, whether released on bond, with global positioning system monitoring or on the defendant's own recognizance, the court shall consider any available results of a pretrial risk assessment instrument approved by the supreme court for use in the jurisdiction and the financial resources of the defendant and shall take into account, individually and in the collective, the available information about:

A. the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves alcohol or drugs;

B. the weight of the evidence against the defendant;

C. the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release;

D. any facts tending to indicate the defendant may or may not be likely to appear as required;

E. any facts tending to indicate the defendant may or may not commit new crimes if released; and

F. the history and characteristics of the defendant, including:

(1) the defendant's character, physical and mental condition, family ties, employment, past and present residences, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history and record about appearance at court proceedings; and

(2) whether, at the time of the current offense or arrest, the defendant was on probation, parole or other release pending trial, sentencing or appeal for any offense under federal, state or local law."

SECTION 10. 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.--[Whenever it appears that there is a question as to the defendant's competency to proceed in a criminal case, any further proceeding in the cause]

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 [when] or through diversion:

(1) if the question of a defendant's competency is raised in a court other than [the] a district court or a metropolitan court, the [proceeding] case shall be [suspended and the cause] transferred to the district court; or

(2) if the question of a defendant's competency is raised in [the] a metropolitan court and the court determines that the defendant is [incompetent to proceed in a criminal case, the cause, if not dismissed upon motion of a party] not competent to stand trial, the case shall be transferred to the district court."

SECTION 11. 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.--[The]

A. A defendant's competency shall be [professionally] evaluated by a psychologist or psychiatrist or other qualified professional recognized by the district court as an expert. [and a report shall be submitted] 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 a qualified professional believes 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, 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.

D. A competency hearing [on the issue of the competency of] 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; [shall be held by the district court within a reasonable time, but in no event later than thirty days after notification to the court of completion of the diagnostic evaluation. In the case of]

(2) within ten days from the date an evaluation report is submitted to the court for an incarcerated defendant not charged with a felony; [the court shall hold a hearing and determine his competency within ten days of notification to the court of completion of the diagnostic evaluation] and

(3) within a reasonable time after an evaluation report is submitted to the court for a defendant who is not incarcerated."

SECTION 12. 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. [When] If, after a competency hearing, a court determines that a defendant is not competent to [proceed in a criminal case and the court does not find that] 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) inflicting great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;

(2) committing criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(3) committing criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(4) committing abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;

(5) violating a provision of the Sexual Exploitation of Children Act;

(6) committing human trafficking, as provided in Section 30-52-1 NMSA 1978;

(7) committing a felony involving the use of a firearm; or

(8) committing aggravated arson, as provided in Section 30-17-6 NMSA 1978.

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; [Upon dismissal the court may advise, the district attorney to consider initiation of proceedings under the Mental Health and Developmental Disabilities Code and order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code] 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 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 shall be approved by the court and provided in an outpatient setting in the community where a 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 competency restoration, 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;

(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; and

(e) 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 or 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;

(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 providing outpatient treatment and services to the defendant 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 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 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.

[B. When a district] D. If the court determines that a [defendant charged with a felony is incompetent to proceed in the criminal case, but does not dismiss the criminal case, and the district court at that time makes a specific finding that the] defendant who is not competent is dangerous, the district court may commit the defendant as provided in this section for [treatment to attain competency to proceed in a criminal case. The court shall enter an appropriate transport order that also provides for return of the defendant to the local facilities of the court upon completion of the treatment. The defendant so committed] 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 [involuntarily committed] persons subject to civil commitment, and:

(1) [the defendant] shall be detained [by the department of health] in a secure, locked, [facility] licensed inpatient psychiatric hospital; and

(2) [the defendant, during the period of commitment] shall not be released from that [secure] facility except pursuant to an order of the [district] court that committed [him] the defendant.

[C.] E. The inpatient psychiatric hospital shall admit a defendant for competency restoration within thirty days of receipt of the court's order of commitment of an incompetent defendant and of the necessary and available documents reasonably required for admission pursuant to written policies adopted by the secretary of health or [his] the secretary's designee. [the defendant shall be admitted to a facility designated for the treatment of defendants who are incompetent to stand trial and dangerous. If after conducting an investigation] If the secretary of health or the secretary's designee determines that the department of health does not have the ability to meet the [medical] needs of [a] the defendant [ordered committed to a facility], the secretary or [his] the secretary's designee may refuse admission [to the defendant upon] by providing written certification to the committing court and the parties of the [lack of ability] department's inability to meet the [medical] needs of the defendant. The certification [must] shall be made within fourteen 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 [his] secretary's designee. Within ten days of filing of the certification, the court shall conduct a hearing for further disposition of the criminal case.

[D. As used in Sections 31-9-1 through 31-9-1.5 NMSA 1978, "dangerous" means that, if released, the defendant presents a serious threat of inflicting great bodily harm on another or of violating Section 30-9-11 or 30-9-13 NMSA 1978.

E.] F. Within thirty days of [an incompetent] a defendant's admission to [a] an inpatient psychiatric facility [to undergo treatment to attain competency to proceed in a criminal case, the person supervising the defendant's treatment] for competency restoration, the department shall file with the [district] court, the state and the defense:

(1) an initial assessment of the defendant and treatment plan; [and]

(2) a report on the defendant's amenability to [treatment to render him competent to proceed in a criminal case] competency restoration;

(3) an assessment of the [facility's or program's] department's capacity to provide appropriate treatment for the defendant; and

(4) an opinion as to the probability of the [defendant's attaining] defendant being restored to competency within [a period of] nine months from the date [of the original finding of incompetency to proceed in a criminal case] the court determined the defendant is not competent to stand trial."

SECTION 13. 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 [of the entry of the order committing an incompetent defendant to undergo treatment, the district court] 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 [is competent to proceed in the criminal case; and, if not] 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 [under treatment] toward [attainment of] being restored to competency within nine months from the date [of the original finding of incompetency] the court determined the defendant is not competent to stand trial; and

(3) whether the defendant remains dangerous as [that term is defined in] determined by the court in accordance with Section 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 [indicating] that includes:

(1) the clinical findings [of the treatment supervisor] regarding the defendant's progress toward competency restoration and the facts upon which the findings are based;

(2) [the] an opinion [of the treatment supervisor] as to whether the defendant has [attained] been restored to competency or as to whether the defendant is making progress [under treatment] toward [attaining] being restored to competency within nine months from the date [of the original finding of incompetency] the court determined the defendant is not competent to stand trial and whether there is a substantial probability that the defendant will [attain] be restored to competency within nine months from the date [of the original finding of incompetency] the court determined the defendant is not competent to stand trial;

(3) an opinion as to whether the defendant [is] remains dangerous as [that term is defined in] determined by the court in accordance with Section 31-9-1.2 NMSA 1978 [or whether the defendant satisfies the criteria for involuntary commitment contained in the Mental Health and Developmental Disabilities Code 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;

(5) if the department of health believes 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 whether:

(a) as a result of a mental disorder, 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; and

(6) if the department of health believes 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:

(a) has a primary diagnosis of a mental disorder;

(b) has demonstrated a history of lack of compliance with treatment for a mental disorder;

(e) will likely benefit from assisted outpatient treatment and have the defendant's best interests served.

C. If the district court finds that the defendant [to be competent] 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 [supervisor of the defendant's treatment] department of health agrees to continue to provide it, the district court may [enter any] order [it deems appropriate for the] continued care or treatment of the defendant [by the facility or program pending] until the conclusion of the criminal proceedings.

D. If the district court finds that the defendant [is still] remains not competent [to proceed in a criminal case] but that [he] the defendant is making progress toward [attaining] being restored to competency, the district court may continue or modify its original [treatment] 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 [original determination of incompetency to proceed in a criminal case] 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 [is still] remains not competent, that [he] the defendant is not making progress toward [attaining] being restored to competency and that there is not a substantial probability that [he] the defendant will [attain] be restored to competency within nine months from the date [of the original finding of incompetency the district court] the 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 [supervisor of the defendant's treatment] department of health agrees to continue to provide it, the district court may [enter any] order [it deems appropriate for the] continued care or treatment of the defendant by the [facility or program pending] department until the conclusion of the criminal proceedings."

SECTION 14. 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 [become competent to proceed in a criminal case within a reasonable period of time not to exceed nine months from the date of the original finding of incompetency] 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. [hear the matter pursuant to] hold a criminal commitment hearing in accordance with Section 31-9-1.5 NMSA 1978 within three months if the defendant is charged with [a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978]:

(1) a felony involving infliction of great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;

(2) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(3) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(4) abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;

(5) a crime provided for in the Sexual Exploitation of Children Act;

(6) human trafficking, as provided in Section 30-52-1 NMSA 1978;

(7) a felony involving the use of a firearm; or

(8) aggravated arson, as provided in Section 30-17-6 NMSA 1978;

B. release the defendant from custody and dismiss the criminal case with prejudice [the charges against him]; or

C. dismiss the criminal case without prejudice in the interest of justice; provided that if the treatment supervisor [has issued a report finding] reports to the court that the defendant satisfies the criteria for involuntary commitment [contained] in accordance with the Mental Health and Developmental Disabilities Code, the department of health shall [commence] initiate those proceedings [pursuant to Chapter 43, Article 1 NMSA 1978], and the court may order the defendant confined for a maximum of seven days to facilitate [preparation and] the initiation of [a petition pursuant to the Mental Health and Developmental Disabilities code. The district court may refer the defendant to the district attorney for possible initiation of proceedings under the Mental Health and Developmental Disabilities Code] those proceedings; and provided further that the district attorney may initiate involuntary commitment proceedings in the department's stead."

SECTION 15. 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. [As provided for in Subsection A of Section

31-9-1.4 NMSA 1978, A] If the court determines that there is not a substantial probability that a defendant 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 case is not dismissed and if] the defendant is charged with [a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978. Such]:

(1) a felony involving infliction of great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;

(2) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(3) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(4) abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;

(5) a crime provided for in the Sexual Exploitation of Children Act;

(6) human trafficking, as provided in Section 30-52-1 NMSA 1978;

(7) a felony involving the use of a firearm; or

(8) aggravated arson, as provided in Section 30-17-6 NMSA 1978.

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.

[B.] C. If the evidence does not establish by clear and convincing evidence that the defendant committed [a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978] the crime charged, the district court shall dismiss the criminal case with prejudice. [however, nothing in this section shall prevent the state from initiating proceedings under the provisions of the Mental Health and Developmental Disabilities Code, and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code.

C.] D. If the district court finds by clear and convincing evidence that the defendant committed [a] the crime charged and has not made a finding of dangerousness [pursuant to] in accordance with Section 31-9-1.2 NMSA 1978, the district court shall dismiss the [charges] criminal case without prejudice. [The state may initiate proceedings pursuant to the provisions of the Mental Health and Developmental Disabilities Code and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code.

D.] E. If the district court finds by clear and convincing evidence that the defendant committed [a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978] the crime charged and enters a finding that the defendant remains [incompetent to proceed] not competent to stand trial and remains dangerous [pursuant to] 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] licensed inpatient psychiatric hospital;

(2) the defendant shall not be released from that secure facility except pursuant to an order of the [district] court [which] that committed [him] 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 [but not limited to] 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:

(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 [be incompetent to proceed in a criminal case] remain not competent to stand trial and dangerous [pursuant to] 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 [he or she] the defendant been convicted in a criminal proceeding; [provided that if the treatment supervisor recommends that the defendant be committed pursuant to the Mental Health and Developmental Disabilities Code, the court may at any time proceed pursuant to Subsection C of Section 31-9-1.4 NMSA 1978] and

(c) [if the defendant is not committed pursuant to Sections 31-9-1 through 31-9-1.5 NMSA 1978 or] if the court finds upon its two-year review hearing that the defendant is no longer dangerous, [as defined in Section 31-9-1.2 NMSA 1978] 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."

SECTION 16. 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 the defense, [requesting a ruling] the court shall hold a hearing to determine whether the defendant [has] 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 [has] 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 [become competent to proceed in a criminal case] be restored to competency within [a reasonable period of time not to exceed] nine months from the date [of the original finding of incompetency, then, no later than sixty days from notification to the secretary of health or the secretary's designee of the court's findings, the department of health shall perform an evaluation to] 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 [evaluation results in a finding] determines that the defendant presents a likelihood of serious harm to self or others, [within sixty days of the department's evaluation] the department shall [commence proceedings pursuant to Chapter 43, Article 1 NMSA 1978] initiate involuntary commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code if the defendant [was] is charged with [murder in the first degree, first degree criminal sexual penetration, criminal sexual contact of a minor or arson in the initial proceedings, and the court presiding over the initial proceedings shall enter a finding that the respondent presents a likelihood of harm to others]:

(1) a felony involving infliction of great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;

(2) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(3) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(4) abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;

(5) a crime provided for in the Sexual Exploitation of Children Act;

(6) human trafficking, as provided in Section 30-52-1 NMSA 1978;

(7) a felony involving the use of a firearm; or

(8) aggravated arson, as provided in Section 30-17-6 NMSA 1978.

D. [The criminal charges shall be dismissed without prejudice] After the [hearing pursuant to Chapter 43, Article 1 NMSA 1978] involuntary commitment hearing or upon expiration of fourteen months from the court's initial determination that the defendant is [incompetent to proceed in a criminal case] 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 17. 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 any defendant, the court shall order a mental examination of the defendant before making any determination of the defendant's competency. [under Sections 41-13-3 or 41-13-3.1 New Mexico Statutes Annotated, 1953 Compilation. Where] 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 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."

SECTION 18. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

A. As used in a statute that establishes a noncapital felony, the following defined felony classifications and associated basic sentences of imprisonment are as follows:

FELONY CLASSIFICATION BASIC SENTENCE

first degree felony

resulting in the death

of a child life imprisonment

first degree felony for

aggravated criminal sexual

penetration life imprisonment

first degree felony for

trafficking a controlled

substance resulting in

the death of a human being life imprisonment

first degree felony eighteen years imprisonment

second degree felony

resulting in the death of

a human being eighteen years imprisonment

second degree felony for

trafficking a controlled

substance resulting in

the death of a human being eighteen years imprisonment

second degree felony for a

sexual offense against a

child fifteen years imprisonment

second degree felony for

sexual exploitation of

children twelve years imprisonment

second degree felony nine years imprisonment

third degree felony resulting

in the death of a human being six years imprisonment

third degree felony for a

sexual offense against a

child six years imprisonment

third degree felony for sexual

exploitation of children eleven years imprisonment

third degree felony three years imprisonment

fourth degree felony for

sexual exploitation of

children ten years imprisonment

fourth degree felony eighteen months imprisonment.

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.

D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

(1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

(2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);

(3) for a first degree felony for trafficking a controlled substance resulting in the death of a human being, seventeen thousand five hundred dollars ($17,500);

[(3)] (4) for a first degree felony, fifteen thousand dollars ($15,000);

[(4)] (5) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

[(5)] (6) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

(7) for a second degree felony for trafficking a controlled substance resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

[(6)] (8) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

[(7)] (9) for a second degree felony, ten thousand dollars ($10,000);

[(8)] (10) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

[(9)] (11) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);

[(10)] (12) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

[(11)] (13) for a third or fourth degree felony, five thousand dollars ($5,000); or

[(12)] (14) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

G. No later than October 31 of each year, the

New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

SECTION 19. Section 31-26-3 NMSA 1978 (being Laws 1994, Chapter 144, Section 3, as amended) is amended to read:

"31-26-3. DEFINITIONS.--As used in the Victims of Crime Act:

A. "court" means magistrate court, metropolitan court, children's court, district court, the court of appeals or the supreme court;

B. "criminal offense" means:

(1) negligent arson resulting in death or bodily injury, as provided in Paragraph (1) of Subsection [B] G of Section 30-17-5 NMSA 1978;

(2) aggravated arson, as provided in Section 30-17-6 NMSA 1978;

(3) aggravated assault, as provided in Section 30-3-2 NMSA 1978;

(4) aggravated battery, as provided in Section 30-3-5 NMSA 1978;

(5) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

(6) negligent use of a deadly weapon, as provided in Section 30-7-4 NMSA 1978;

(7) murder, as provided in Section 30-2-1 NMSA 1978;

(8) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

(9) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

(10) kidnapping, as provided in Section 30-4-1 NMSA 1978;

(11) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(12) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(13) armed robbery, as provided in Section 30-16-2 NMSA 1978;

(14) homicide by vehicle, as provided in Section 66-8-101 NMSA 1978;

(15) great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978;

(16) abandonment or abuse of a child, as provided in Section 30-6-1 NMSA 1978;

(17) stalking or aggravated stalking, as provided in the Harassment and Stalking Act;

(18) aggravated assault against a household member, as provided in Section 30-3-13 NMSA 1978;

(19) assault against a household member with intent to commit a violent felony, as provided in Section 30-3-14 NMSA 1978;

(20) battery against a household member, as provided in Section 30-3-15 NMSA 1978; [or]

(21) aggravated battery against a household member, as provided in Section 30-3-16 NMSA 1978;

(22) human trafficking, as provided in Section 30-52-1 NMSA 1978; or

(23) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;

C. "court proceeding" means a hearing, argument or other action scheduled by and held before a court;

D. "family member" means a spouse, child, sibling, parent or grandparent;

E. "formally charged" means the filing of an indictment, the filing of a criminal information pursuant to a bind-over order, the filing of a petition or the setting of a preliminary hearing;

F. "victim" means an individual against whom a criminal offense is committed. "Victim" also means a family member or a victim's representative when the individual against whom a criminal offense was committed is a minor, is incompetent or is a homicide victim; and

G. "victim's representative" means an individual designated by a victim or appointed by the court to act in the best interests of the victim."SECTION 20. Section 32A-2-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 31, as amended) is amended to read:

"32A-2-2. PURPOSE OF ACT.--The purpose of the Delinquency Act is:

A. consistent with the protection of the public interest, to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child's age, education, mental and physical condition, background and all other relevant factors, and to provide a program of supervision, care and rehabilitation, including rehabilitative restitution by the child to the victims of the child's delinquent act to the extent that the child is reasonably able to do so;

B. to provide effective deterrents to acts of juvenile delinquency, if deterrents are appropriate, including an emphasis on community-based alternatives;

C. to strengthen families and to successfully reintegrate children into homes and communities;

D. to foster and encourage collaboration between government agencies and communities with regard to juvenile justice policies and procedures;

E. to develop juvenile justice policies and procedures that are supported by data;

F. to develop objective risk assessment instruments to be used for admission to juvenile detention centers;

G. to encourage efficient processing of cases;

H. to develop community-based alternatives to detention, if alternatives are appropriate;

I. to eliminate or reduce disparities based upon race or gender;

J. to improve conditions of confinement in juvenile detention centers; and

K. to achieve reductions in the number of warrants issued, the number of probation violations and the number of youth awaiting placements."

SECTION 21. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read:

"32A-2-3. DEFINITIONS.--As used in the Delinquency Act:

A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, not including a violation of Section 30-9-2 NMSA 1978, including the following offenses:

(1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code:

(a) driving while under the influence of intoxicating liquor or drugs;

(b) failure to stop in the event of an accident causing [death] personal injury or damage to property;

(d) receiving or transferring of a stolen vehicle or motor vehicle;

[(e) homicide by vehicle;

(f)] (e) injuring or tampering with a vehicle;

[(g)] (f) altering or changing of an engine number or other vehicle identification numbers;

[(h)] (g) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

[(i)] (h) reckless driving;

[(j)] (i) driving with a suspended or revoked license; or

[(k)] (j) an offense punishable as a felony;

(2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations unit of the New Mexico state police division of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods;

(3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

(4) a violation of the Controlled Substances Act;

(5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;

(6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property;

(7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act; or

(8) trafficking cannabis as provided in Section 26-2C-28 NMSA 1978;

B. "delinquent child" means a child who has committed a delinquent act;

C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

D. "detention facility" means a place where a child may be detained under the Children's Code pending a court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

E. "felony" means an act that would be a felony if committed by an adult;

F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

H. "serious youthful offender" is not a delinquent child and means [an individual fifteen] a child fourteen to eighteen years of age who is charged with [and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section] at least one of the following crimes:

(1) murder in the first degree or murder in the second degree, as provided in Section 30-2-1 NMSA 1978;

(2) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

(3) robbery while armed with a deadly weapon, as provided in Section 30-16-2 NMSA 1978; or

(4) shooting at a dwelling or occupied building that results in great bodily harm to another person or shooting at or from a motor vehicle that results in great bodily harm to another person, as provided in Section 30-3-8 NMSA 1978;

I. "supervised release" means the release of a juvenile, whose term of commitment has not expired, from a facility for the care and rehabilitation of adjudicated delinquent children, with specified conditions to protect public safety and promote successful transition and reintegration into the community. A juvenile on supervised release is subject to monitoring by the department until the term of commitment has expired and may be returned to custody for violating conditions of release; and

J. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is [(1)] fourteen to eighteen years of age [at the time of the offense and who is adjudicated for at least one of the following offenses:

(a) second degree murder, as provided in Section 30-2-1 NMSA 1978] and is:

(1) charged with at least one of the following offenses:

[(b)] (a) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

[(c)] (b) kidnapping, as provided in Section 30-4-1 NMSA 1978;

[(d)] (c) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

[(e)] (d) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

[(f)] (e) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

[(g)] (f) shooting at a dwelling or occupied building that does not result in great bodily harm to another person or shooting at or from a motor vehicle that does not result in great bodily harm to another person, as provided in Section 30-3-8 NMSA 1978;

[(h)] (g) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

[(i)] (h) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

[(j)] (i) robbery, as provided in Section 30-16-2 NMSA 1978;

[(k)] (j) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

[(l)] (k) aggravated arson, as provided in Section 30-17-6 NMSA 1978; [or

(m)] (l) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

(m) unlawful possession of a handgun by a person, as provided in Section 30-7-2.2 NMSA 1978;

(n) homicide by vehicle, as provided in Section 66-8-101 NMSA 1978;

(o) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978; or

(p) failing to stop a vehicle when the vehicle is involved in an accident that results in injury or death, as provided in Section 66-7-201 NMSA 1978; or

(2) [fourteen to eighteen years of age at the time of the offense, who is] adjudicated for [any] a felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense; provided that:

(a) the felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location; and

(b) successful completion of a consent [decrees is] decree shall not be considered a prior adjudication for the purposes of this paragraph [or

(3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978]."

SECTION 22. Section 32A-2-4.1 NMSA 1978 (being Laws 2009, Chapter 239, Section 12) is amended to read:

"32A-2-4.1. ADULT JAILS AND LOCKUPS USED AS TEMPORARY HOLDING FACILITIES--REPORTS.--

A. A child arrested and detained for an alleged delinquent act may be temporarily held in an adult jail or lockup for no longer than six hours. A child who is detained in an adult jail or lockup shall be placed in a setting that is physically segregated by sight and sound from adult offenders. After six hours, the child may be placed or detained pursuant to the provisions of Section 32A-2-12 NMSA 1978.

B. An adult jail or lockup used as a temporary holding facility for alleged delinquent offenders shall file an annual report regarding its compliance with federal requirements. The juvenile justice advisory committee and the department shall determine the format of the annual reports.

C. A serious youthful offender shall be transported to a district court when the serious youthful offender's appearance is ordered by the district court; provided, however, that the serious youthful offender shall be physically segregated from adult offenders and segregated by sight and sound from adult offenders to the fullest extent possible."

SECTION 23. Section 32A-2-8 NMSA 1978 (being Laws 1993, Chapter 77, Section 37) is amended to read:

"32A-2-8. PETITION--AUTHORIZATION TO FILE.--A petition alleging delinquency shall not be filed [in] to initiate delinquency proceedings unless the children's court attorney [after consulting with probation services] has determined and endorsed upon the petition that the filing of the petition is in the best interest of the public and the child. The children's court attorney shall furnish legal services in

connection with the authorization and preparation of the petition."

SECTION 24. Section 32A-2-11 NMSA 1978 (being Laws 1993, Chapter 77, Section 40, as amended) is amended to read:

"32A-2-11. CRITERIA FOR DETENTION OF CHILDREN.--

A. [Unless] Except as otherwise ordered by the court pursuant to the provisions of the Delinquency Act, a child taken into custody for an alleged delinquent act shall not be placed in detention unless [a detention risk assessment instrument is completed and] a determination is made that the child:

(1) poses a substantial risk of harm to [himself] the child's self;

(2) poses a substantial risk of harm to others; or

(3) has demonstrated that [he] the child may leave the jurisdiction of the court.

B. The criteria for detention provided for in this section shall [govern] apply to the decisions of all persons responsible for determining whether detention is appropriate prior to a detention hearing. [based upon review of the detention risk assessment instrument.

C. The department shall develop and implement a detention risk assessment instrument. The department shall collect and analyze data regarding the application of the detention risk assessment instrument. On January 1, 2004, the department shall provide the legislature with a written report with respect to its collection and analysis of data regarding the application of the detention risk assessment instrument]"

SECTION 25. Section 32A-2-12 NMSA 1978 (being Laws 1993, Chapter 77, Section 41, as amended) is amended to read:

"32A-2-12. PLACEMENT OR DETENTION.--

A. A child alleged to be a delinquent child may be placed or detained, pending a court hearing, in any of the following places:

(1) a licensed foster home or a home otherwise authorized under the law to provide foster or group care;

(2) a facility operated by a licensed child welfare services agency;

(3) a shelter-care facility provided for in the Children's Shelter Care Act that is in compliance with all standards, conditions and regulatory requirements and that shall be considered a temporary placement subject to judicial review within thirty days of placement;

(4) a detention facility certified by the department for children alleged to be delinquent children;

(5) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court [and] that meets the standards for detention facilities pursuant to the Children's Code and federal law; or

(6) the child's home or place of residence, under conditions and restrictions approved by the court.

B. A child alleged to be a youthful offender may be detained, pending a court hearing, in any of the following places:

(1) a detention facility, licensed by the department, for children alleged to be delinquent children; or

(2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court [and] that meets the standards for detention facilities pursuant to the Children's Code and federal law.

C. A child adjudicated as a youthful offender who is violent toward staff or other residents in a detention facility may be transferred and detained, pending a court hearing, in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

D. A child who has previously been incarcerated as an adult [or a person eighteen years of age or older] shall not be detained in a juvenile detention facility or a facility for the long-term care and rehabilitation of delinquent children but may be detained in a county jail. A child [shall not] who reaches eighteen years of age while in a juvenile detention facility shall be transferred to a county jail [solely on the basis of attaining the age of eighteen while detained in a juvenile detention facility]. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

E. A child alleged to be a serious youthful offender may be detained pending a court hearing in any of the following places, prior to arraignment in metropolitan, magistrate or district court:

(1) a detention facility, licensed by the department, for children alleged to be delinquent children;

(2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court that meets the standards for detention facilities pursuant to the Children's Code and federal law; or

(3) a county jail, if a facility in Paragraph (1) or (2) of this subsection is not appropriate. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

F. When a person who is eighteen years of age or older is taken into custody and transported to an adult facility on a juvenile warrant or an adult warrant or other adult charges and an outstanding juvenile warrant exists, notice shall be given to the children's court attorney and the juvenile probation and parole office in the jurisdiction where the juvenile warrant was issued within one day of the person being taken into custody. The juvenile probation and parole office shall give notice that the person has been taken into custody to the children's court judge and the attorney who represented the person in the juvenile proceeding.

G. In addition to the judicial review required by Paragraph (3) of Subsection A of this section, a child detained in an out-of-home placement pursuant to this section may request judicial review of the appropriateness of the placement."

SECTION 26. Section 32A-2-13 NMSA 1978 (being Laws 1993, Chapter 77, Section 42, as amended) is amended to read:

"32A-2-13. DETENTION HEARING REQUIRED ON DETAINED CHILDREN--PROBABLE CAUSE DETERMINATION--COURT DETERMINATION--DISPOSITION.--

A. [When] If a child who has been taken into custody is not released but is detained:

(1) a judicial determination of probable cause shall be made by a judge [or special master or magistrate] within forty-eight hours, including Saturdays, Sundays and legal holidays, except for children taken into custody under an arrest warrant pursuant to the Children's Court Rules. A statement by a law enforcement officer, which shall include the charges, may be the basis of a probable cause determination. The probable cause determination shall be nonadversarial, may be held in the absence of the child and counsel and may be conducted by telephone. If the court finds no probable cause to believe the child committed an offense, the child shall be released;

(2) a petition shall be filed within

twenty-four hours from the time the child is taken into custody, excluding Saturdays, Sundays and legal holidays, and if not filed within the stated time, the child shall be released; and

(3) a detention hearing shall be held within twenty-four hours, excluding Saturdays, Sundays and legal holidays, from the time of filing the petition to determine whether continued detention is required pursuant to the criteria established by the Children's Code. At the court's discretion or at the request of any party, the court may permit a detention hearing to be conducted by appropriate means of electronic communication. [provided that all hearings conducted by electronic means shall be recorded and preserved as part of the record, the child shall have legal representation present with the child, no plea shall be allowed to be taken via electronic communication and the court finds:

(a) that undue hardship will result from conducting the hearing with all parties, including the child, present in the courtroom; and

(b) that the hardship substantially outweighs any prejudice or harm to the child that is likely to result from the hearing being conducted by electronic means.

B. The judge may appoint one or more persons to serve as special master on a full- or part-time basis for the purpose of holding detention hearings. A juvenile probation and parole officer shall not be appointed as a special master. The judge shall approve all contracts with special masters and shall fix their hourly compensation, subject to the approval of the director of the administrative office of the courts.

C.] B. Notice of the detention hearing, either oral or written, stating the time, place and purpose of the hearing shall be given by the person designated by the court to the child's parents, guardian or custodian, if they can be found, and to the child. The department shall be provided with reasonable oral or written notification and an opportunity to be heard. At any hearing held pursuant to this subsection, the department may appear as a party.

[D.] C. At the commencement of the detention hearing, the judge [or special master] shall advise the parties of their basic rights provided in the Children's Code and shall appoint counsel, guardians and custodians, if appropriate.

[E.] D. If the judge [or special master] finds that the child's detention is appropriate under the criteria established by the Children's Code, the judge [or special master] shall order detention in an appropriate facility in accordance with the Children's Code.

[F.] E. If the judge [or special master] finds that detention of the child is not appropriate under the criteria established by the Children's Code, the judge [or special master] shall order the release of the child, but, in so doing, may order one or more of the following conditions to meet the individual needs of the child:

(1) place the child in the custody of a parent, guardian or custodian or under the supervision of an agency agreeing to supervise the child;

(2) place restrictions on the child's travel, association with other persons or place of abode during the period of the child's release; or

(3) impose any other condition deemed reasonably necessary and consistent with the criteria for detaining children established by the Children's Code, including a condition requiring that the child return to custody as required.

[G.] F. An order releasing a child on any conditions specified in this section may at any time be amended to impose additional or different conditions of release or to return the child to custody or detention for failure to conform to the conditions originally imposed.

[H.] G. At the detention hearing, all relevant and material evidence helpful in determining the need for detention may be admitted by the judge [or special master] even though it would not be admissible in a hearing on the petition.

[I.] H. If the child is not released at the detention hearing and a parent, guardian or custodian was not notified of the hearing and did not appear or waive appearance at the detention hearing, the judge [or special master] shall rehear the detention matter without unnecessary delay upon the filing of an affidavit stating the facts and a motion for rehearing.

[J.] I. If a child is not released at the detention hearing, the child's detention may be subsequently reviewed by the court or the court may review the child's detention in conjunction with a pretrial conference.

[K.] J. If a child is not placed within ten days after a disposition hearing, the child may be released and placed under appropriate supervision, so long as the child does not pose a flight risk or substantial risk of harm to the child's self or others."

SECTION 27. Section 32A-2-14 NMSA 1978 (being Laws 1993, Chapter 77, Section 43, as amended) is amended to read:

"32A-2-14. BASIC RIGHTS.--

A. In addition to the rights provided by the Delinquency Act, a child subject to the provisions of the Delinquency Act is entitled to the same basic rights as an adult, [except as otherwise provided in the Children's Code, including rights provided by the Delinquency Act] except as otherwise provided in the Children's Code.

B. If after due notice to the parent, guardian or custodian and after a hearing determining indigency, the parent, guardian or custodian is declared indigent by the court, the public defender shall represent the child. If the court finds that the parent, guardian or custodian is financially able to pay for an attorney but is unwilling to do so, the court shall order the parent, guardian or custodian to reimburse the state for public defender representation.

C. No person subject to the provisions of the Delinquency Act who is alleged or suspected of being a delinquent child shall be interrogated or questioned without first advising the child of the child's constitutional rights and securing a knowing, intelligent and voluntary waiver.

D. Before any statement or confession may be introduced at a trial or hearing when a child is alleged to be a delinquent child, the state shall prove that the statement or confession offered in evidence was elicited only after a knowing, intelligent and voluntary waiver of the child's constitutional rights was obtained.

E. In determining whether the child knowingly, intelligently and voluntarily waived the child's rights, the court shall consider the following factors:

(1) the age and education of the respondent;

(2) whether the respondent is in custody;

(3) the manner in which the respondent was advised of the respondent's rights;

(4) the length of questioning and circumstances under which the respondent was questioned;

(5) the condition of the quarters where the respondent was being kept at the time of being questioned;

(6) the time of day and the treatment of the respondent at the time of being questioned;

(7) the mental and physical condition of the respondent at the time of being questioned; and

(8) whether the respondent had the counsel of an attorney, friends or relatives at the time of being questioned.

F. Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition. There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible.

G. An extrajudicial admission or confession made by the child out of court is insufficient to support a finding that the child committed the delinquent acts alleged in the petition unless it is corroborated by other evidence.

H. The child and the parent, guardian or custodian of the child shall be advised by the court or its representative that the child shall be represented by counsel at all stages of the proceedings on a delinquency petition, including all post-dispositional court proceedings. If counsel is not retained for the child or if it does not appear that counsel will be retained, counsel shall be appointed for the child.

I. A child under the age of thirteen alleged or adjudicated to be a delinquent child shall not be fingerprinted or photographed for identification purposes without obtaining a court order.

J. The court, at any stage of the proceeding on a petition under the Children's Code, may appoint a guardian ad litem for a child who is a party if the child has no parent, guardian or custodian appearing on behalf of the child or if the parent's, guardian's or custodian's interests conflict with those of the child. A party to the proceeding or an employee or representative of a party shall not be appointed as guardian ad litem.

K. The court shall appoint a guardian for a child if the court determines that the child does not have a parent or a legally appointed guardian in a position to exercise effective guardianship. No officer or employee of an agency that is vested with the legal custody of the child shall be appointed guardian of the child except when parental rights have been terminated and the agency is authorized to place the child for adoption.

L. A person afforded rights under the Delinquency Act shall be advised of those rights at that person's first appearance before the court on a petition under that act.

M. A serious youthful offender who is detained prior to trial in [an adult] a facility has a right to [bail] a hearing to consider or address conditions of release as provided [under SCRA 1986, Rule 5-401] by supreme court rule. A child held in a juvenile facility designated as a place of detention prior to adjudication [does not have a right to bail but] may be released pursuant to the provisions of the Delinquency Act.

N. A child fourteen years of age or older who is adjudicated as a youthful offender may waive the child's right to an amenability hearing and instead be sentenced as an adult.

[N.] O. The provisions of the Delinquency Act shall not be interpreted to limit the right of a child to petition a court for a writ of habeas corpus."

SECTION 28. Section 32A-2-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 46, as amended) is amended to read:

"32A-2-17. PREDISPOSITION STUDIES--REPORTS AND EXAMINATIONS.--

A. After a petition has been filed and either a finding with respect to the allegations of the petition has been made or a notice of intent to admit the allegations of the petition has been filed, the court may direct that a predisposition study and report to the court be made in writing by the department or an appropriate agency designated by the court concerning the child, the family of the child, the environment of the child and any other matters relevant to the need for treatment or to appropriate disposition of the case. If directed by the court, the following predisposition reports shall be provided to the parties and the court five days before actual disposition or sentencing:

(1) the adult probation and parole division of the corrections department shall prepare a predisposition report for a serious youthful offender;

(2) the department shall prepare a predisposition report for a serious youthful offender who is convicted of an offense other than first degree murder;

(3) the department shall prepare a predisposition report for a youthful offender concerning the youthful offender's amenability to treatment; and if:

(a) the court determines that a juvenile disposition is appropriate, the department shall prepare a subsequent predisposition report; or

(b) the court makes the findings necessary to impose an adult sentence pursuant to Section 32A-2-20 NMSA 1978, the adult probation and parole division of the corrections department shall prepare a subsequent predisposition report; and

(4) the department shall prepare a predisposition report for a delinquent offender upon the court's request.

B. [Where] If there are indications that the child may have a mental disorder or developmental disability, the court, on motion by the children's court attorney or that of counsel for the child, may order the child to be examined at a suitable place by a physician or psychiatrist, a licensed psychologist, a licensed professional clinical counselor or a licensed independent social worker prior to a hearing on the merits of the petition. An examination made prior to the hearing or as a part of the predisposition study and report shall be conducted on an outpatient basis, unless the court finds that placement in a hospital or other appropriate facility is necessary.

C. The court, after a hearing, may order examination by a physician or psychiatrist, a licensed psychologist or a licensed professional clinical counselor or a licensed independent social worker of a parent or custodian whose ability to care for or supervise a child is an issue before the court.

D. The court may order that a child adjudicated as a delinquent child be administered a predispositional evaluation by a professional designated by the department for purposes of diagnosis, with direction that the court be given a report indicating what disposition appears most suitable when the interests of the child and the public are considered. The evaluation shall be completed within fifteen days of the court's order and the preference shall be for performing the evaluation in the child's community.

E. If a child is detained for purposes of performing a predispositional evaluation, it shall be completed within fifteen days and in no event shall a child be detained for more than fifteen days within a three-hundred-sixty-five-day period for a predispositional evaluation, unless for good cause shown."

SECTION 29. Section 32A-2-18 NMSA 1978 (being Laws 1993, Chapter 77, Section 47, as amended) is amended to read:

"32A-2-18. JUDGMENT--NONCRIMINAL NATURE-- NONADMISSIBILITY.--

A. The court shall enter a judgment setting forth the court's findings and disposition in the proceeding. A judgment in proceedings on a petition under the Delinquency Act resulting in a juvenile disposition shall not be deemed a conviction of crime nor shall it impose any civil disabilities ordinarily resulting from conviction of a crime nor shall it operate to disqualify the child in any civil service application or appointment. The juvenile disposition of a child and any evidence given in a hearing in court shall not be admissible as evidence against the child in any case or proceeding in any other tribunal whether before or after reaching the age of majority, except in sentencing proceedings [after conviction of a felony and then only for the purpose of a presentence study and report] or a hearing held pursuant to Article 2, Section 13 of the constitution of New Mexico or in accordance with supreme court rule to consider or address conditions of release.

B. If a judgment resulting from a youthful offender or serious youthful offender proceeding under the Delinquency Act results in an adult sentence, a record of the judgment shall be admissible in any other case or proceeding in any other court involving the youthful offender or serious youthful offender.

C. If a judgment on a proceeding under the Delinquency Act results in an adult sentence, the determination of guilt at trial becomes a conviction for purposes of the Criminal Code."

SECTION 30. Section 32A-2-19 NMSA 1978 (being Laws 1993, Chapter 77, Section 48, as amended) is amended to read:

"32A-2-19. DISPOSITION OF AN ADJUDICATED DELINQUENT OFFENDER.--

A. At the conclusion of the dispositional hearing, the court may make and include in the dispositional judgment its findings on the following:

(1) the interaction and interrelationship of the child with the child's parents and siblings and any other person who may significantly affect the child's best interests;

(2) the child's adjustment to the child's home, school and community;

(3) the mental and physical health of all individuals involved, including consideration of such factors as the child's brain development, maturity, trauma history and disability;

(4) the wishes of the child as to the child's custodian;

(5) the wishes of the child's parents as to the child's custody;

(6) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;

(7) the availability of services recommended in the predisposition report; and

(8) the ability of the parents to care for the child in the home.

B. If a child is found to be delinquent, the court may enter its judgment making any of the following dispositions for the supervision, care and rehabilitation of the child:

(1) transfer legal custody to the department or an agency responsible for the care and rehabilitation of delinquent children, which shall receive the child at a facility designated by the secretary of the department as a juvenile reception facility. The department shall thereafter determine the appropriate placement, supervision and rehabilitation program for the child. The judge may include recommendations for placement of the child. Commitments are subject to limitations and modifications set forth in Section 32A-2-23 NMSA 1978. [The types of commitments include:

(a) a short-term commitment of one year in a facility for the care and rehabilitation of adjudicated delinquent children. No more than nine months shall be served at the facility and no less than ninety days shall be served on supervised release, unless: 1) a petition to extend the commitment has been filed prior to the commencement of supervised release; 2) the commitment has been extended pursuant to Section 32A-2-23 NMSA 1978; or 3) supervised release is revoked pursuant to Section 32A-2-25 NMSA 1978;

(b) a long-term commitment for no more than two years in a facility for the care and rehabilitation of adjudicated delinquent children. No more than twenty-one months shall be served at the facility and no less than ninety days shall be served on supervised release, unless: 1) supervised release is revoked pursuant to Section 32A-2-25 NMSA 1978; or 2) the commitment is extended pursuant to Section 32A-2-23 NMSA 1978;

(c) if the child is a delinquent offender who committed one of the criminal offenses set forth in Subsection J of Section 32A-2-3 NMSA 1978, a commitment to age twenty-one, unless sooner discharged; or

(d) if the child is a youthful offender, a commitment to age twenty-one, unless sooner discharged;

(2) place the child on probation under those conditions and limitations as the court may prescribe] The court has discretion to consider the child's unique circumstances and history when imposing probation or commitment and may impose probation or commitment for any period up to the date the child reaches twenty-five years of age;

[(3)] (2) place the child in a local detention facility that has been certified in accordance with the provisions of Section 32A-2-4 NMSA 1978 for a period not to exceed [fifteen] thirty days within a three hundred sixty-five day time period; or if a child is found to be delinquent solely on the basis of Paragraph (3) of Subsection A of Section 32A-2-3 NMSA 1978, the court shall only enter a judgment placing the child on probation or ordering restitution or both; or

[(4)] (3) if a child is found to be delinquent solely on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the court may make any disposition provided by this section and may enter its judgment placing the child on probation and, as a condition of probation, transfer custody of the child to the department for a period not to exceed six months without further order of the court; provided that this transfer shall not be made unless the court first determines that the department is able to provide or contract for adequate and appropriate treatment for the child and that the treatment is likely to be beneficial.

C. [When] If the child is an Indian child, the Indian child's cultural needs shall be considered in the dispositional judgment and reasonable access to cultural practices and traditional treatment shall be provided.

D. A child found to be delinquent shall not be committed or transferred to a penal institution or other facility used for the execution of sentences of persons convicted of crimes, unless the child reaches eighteen years of age.

E. Whenever the court vests legal custody in an agency, institution or department, it shall transmit with the dispositional judgment copies of the clinical reports, predisposition study and report and other information it has pertinent to the care and treatment of the child.

F. Prior to any child being placed in the custody of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard.

G. In addition to any other disposition pursuant to Subsection B of this section, the court may make an abuse or neglect report for investigation and proceedings as provided for in the Abuse and Neglect Act. The report may be made to a local law enforcement agency, the department or a tribal law enforcement or social service agency for an Indian child residing in Indian country.

H. In addition to any other disposition pursuant to this section or any other penalty provided by law, if a child who is fifteen years of age or older is adjudicated delinquent on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the child's driving privileges may be denied or the child's driver's license may be revoked for a period of ninety days. For a second or a subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the dispositional judgment, the court may send to the motor vehicle division of the taxation and revenue department the order adjudicating delinquency. Upon receipt of an order from the court adjudicating delinquency, the director of the motor vehicle division of the taxation and revenue department may revoke or deny the delinquent's driver's license or driving privileges. Nothing in this section may prohibit the delinquent from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act, and nothing in this section precludes the delinquent's participation in an appropriate educational, counseling or rehabilitation program.

I. In addition to any other disposition pursuant to this section or any other penalty provided by law, when a child is adjudicated delinquent on the basis of Paragraph (6) of Subsection A of Section 32A-2-3 NMSA 1978, the child shall perform the mandatory community service set forth in Section 30-15-1.1 NMSA 1978. When a child fails to completely perform the mandatory community service, the name and address of the child's parent or legal guardian shall be published in a newspaper of general circulation, accompanied by a notice that the parent or legal guardian is the parent or legal guardian of a child adjudicated delinquent for committing graffiti."

SECTION 31. Section 32A-2-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 49, as amended) is amended to read:

"32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER AND SERIOUS YOUTHFUL OFFENDER.--

A. The court has the discretion to invoke either an adult sentence or juvenile sanctions on a youthful offender. The children's court attorney shall file a notice of intent to invoke an adult sentence within ten working days of the filing of the petition; provided that the court may extend the time for filing of the notice of intent to invoke an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.

B. If the children's court attorney has filed a notice of intent to invoke an adult sentence and the child is adjudicated as a youthful offender, the court shall make the following findings in order to invoke an adult sentence:

(1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and

(2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors, but may not weigh one factor more heavily than another:

(1) the seriousness of the alleged offense;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether a firearm was used to commit the alleged offense;

(4) whether the alleged offense was against persons or against property [greater weight being given to offenses against persons, especially if personal injury resulted];

(5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability;

(6) the record and previous history of the child;

(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

(8) any other relevant factor; provided that factor is stated on the record.

D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

E. If the court invokes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender given an adult sentence shall be treated as an adult offender and shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts alleged in the petition. A child given an adult sentence shall not be sentenced to life imprisonment without the possibility of release or parole.

F. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section 32A-2-19 NMSA 1978. A youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA 1978.

G. A child fourteen years of age or older who was charged [with first degree murder] as a serious youthful offender but [not convicted of first degree murder and] was found to have committed a youthful offender offense as set forth in Subsection J of Section 32A-2-3 NMSA 1978 is subject to the dispositions set forth in this section.

H. A child fourteen years of age or older who was charged [with first degree murder] as a serious youthful offender but was found to have committed a delinquent act that is neither [first degree murder] a serious youthful offender offense as set forth in Subsection H of Section 32A-2-3 NMSA 1978 nor a youthful offender offense as set forth in Subsection J of Section 32A-2-3 NMSA 1978 shall be adjudicated as a delinquent and is subject to the dispositions set forth in Section 32A-2-19 NMSA 1978; provided that the case shall be transferred to the children's court for disposition."

SECTION 32. Section 32A-2-22 NMSA 1978 (being Laws 1993, Chapter 77, Section 51, as amended) is amended to read:

"32A-2-22. CONTINUANCE UNDER SUPERVISION WITHOUT JUDGMENT--CONSENT DECREE--DISPOSITION.--

A. At any time after the filing of a delinquency petition and before the entry of a judgment, the court may, on motion of the children's court attorney or that of counsel for the child, suspend the proceedings and continue the child under supervision in the child's own home under terms and conditions negotiated with probation services and agreed to by [all the parties affected] the state and the child's defense attorney and approved by the court. The court's order continuing the child under supervision under this section shall be known as a "consent decree". An admission of some or all of the allegations stated in the delinquency petition shall not be required for a consent decree order.

B. If the child objects to a consent decree, the court shall proceed to findings, adjudication and disposition of the case. If the child does not object but an objection is made by the children's court attorney after consultation with probation services, the court shall, after considering the objections and the reasons given, proceed to determine whether it is appropriate to enter a consent decree and may, in its discretion, enter the consent decree.

C. A consent decree shall remain in force for six months unless the child is discharged sooner by probation services. Prior to the expiration of the six-month period and upon the application of probation services or any other agency supervising the child under a consent decree, the court may extend the decree for an additional six months in the absence of objection to extension by the child. If the child objects to the extension, the court shall hold a hearing and make a determination on the issue of extension; provided that a consent decree shall not be available to a child charged as a youthful offender or serious youthful offender.

D. If either prior to discharge by probation services or expiration of the consent decree the child allegedly fails to fulfill the terms of the decree, the children's court attorney may file a petition to revoke the consent decree. Proceedings on the petition shall be conducted in the same manner as proceedings on petitions to revoke probation. If the child is found to have violated the terms of the consent decree, the court may:

(1) extend the period of the consent decree; or

(2) make any other disposition that would have been appropriate in the original proceeding.

E. A child who is discharged by probation services or who completes a period under supervision without reinstatement of the original delinquency petition shall not again be proceeded against in any court for the same offense alleged in the petition or an offense based upon the same conduct and the original petition shall be dismissed with prejudice. Nothing in this subsection precludes a civil suit against the child for damages arising from the child's conduct.

F. A judge who pursuant to this section elicits or examines information or material about a child that would be inadmissible in a hearing on the allegations of the petition shall not, over the objection of the child, participate in any subsequent proceedings on the delinquency if:

(1) a consent decree is denied and the allegations in the petition remain to be decided in a hearing where the child denies the allegations; or

(2) a consent decree is granted but the delinquency petition is subsequently reinstated.

G. If a consent decree has been entered pursuant to the filing of a delinquency petition based on Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978 for a child who is fifteen years of age or older, a condition of the consent decree agreement may be the denial of the child's driving privileges or the revocation of the child's driver's license for a period of ninety days. For the second or subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the entry by the court of a decree consenting to the revocation or denial of the child's driver's license or driving privileges, the court shall send the decree to the motor vehicle division of the taxation and revenue department. Upon receipt of the decree from the court consenting to the denial or revocation of the child's driving privileges or driver's license, the director of the motor vehicle division of the taxation and revenue department shall revoke or deny the delinquent child's driver's license or driving privileges. Nothing in this section shall prohibit the delinquent child from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act, and nothing in this section precludes the delinquent child's participation in an appropriate educational, counseling or rehabilitation program."

SECTION 33. Section 32A-2-23 NMSA 1978 (being Laws 1993, Chapter 77, Section 52, as amended) is amended to read:

"32A-2-23. LIMITATIONS ON DISPOSITIONAL JUDGMENTS-- MODIFICATION--TERMINATION OR EXTENSION OF COURT ORDERS.--

A. A judgment transferring legal custody of an adjudicated delinquent child to an agency responsible for the care and rehabilitation of delinquent children divests the court of jurisdiction at the time of transfer of custody, unless the transfer of legal custody is for a commitment not exceeding fifteen days pursuant to the provisions of Section 32A-2-19 NMSA 1978, in which case the court retains jurisdiction.

B. A judgment of probation or protective supervision shall remain in force for an indeterminate period not to exceed the term of commitment from the date entered.

C. A child shall be released by an agency and probation or supervision shall be terminated by juvenile probation and parole services or the agency providing supervision when it appears that the purpose of the order has been achieved before the expiration of the period of the judgment. A release or termination and the reasons therefor shall be reported promptly to the court in writing by the releasing authority.

[D. Prior to the expiration of a short-term commitment of one year, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for up to one six-month period if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a short-term commitment is extended, the mandatory ninety-day supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment.

E. Prior to the expiration of a long-term commitment, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for additional periods of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a long-term commitment is extended, the mandatory ninety-day supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment.
F.] D. Prior to the expiration of a judgment of probation or commitment, the court may exercise discretion and extend the judgment, based on the child's unique circumstances and history, for an additional period [of one year until] up to the date the child reaches [the age of twenty-one] twenty-five years of age if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the child.

[G.] E. The court may dismiss a motion if it finds after preliminary investigation that the motion is without substance. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. The court may terminate a judgment if it finds that the child is no longer in need of care, supervision or rehabilitation or it may enter a judgment extending or modifying the original judgment if it finds that action necessary to safeguard the child or the public interest.

[H.] F. A child may make a motion to modify a children's court or adult disposition within thirty days of the judge's decision. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency.

[I.] G. The department may seek a bench warrant from the court when the child absconds from supervised release."

SECTION 34. Section 32A-2-23.1 NMSA 1978 (being Laws 2009, Chapter 239, Section 23) is amended to read:

"32A-2-23.1. RELEASE ELIGIBILITY.--

[A. The department shall have exclusive jurisdiction and authority to release an adjudicated delinquent child during the term of the child's commitment, consistent with the provisions of the Victims of Crime Act. In determining whether to release a child, the department shall give due consideration to public safety, the extent to which the child has been rehabilitated, the adequacy and suitability of the proposed release plan and the needs and best interests of the child, including the child's need for behavioral health or medical services that are not available in facilities for adjudicated delinquent children.

B.] A. The decision to grant or deny release shall be made by the secretary of children, youth and families or the secretary's designee. The department may impose such conditions of release as it deems appropriate.

[C. A child is eligible for release any time after the entry of a judgment transferring legal custody to the department, and the department may consider a reasonable request for release from the child at any time sixty days after the child has been committed.

D.] B. In the event release for a child is denied by the department after release is recommended for the child by the juvenile public safety advisory board, or release is approved by the department after the board has recommended that the child not be released, within ten days the board may request a review of the decision by the court of the judicial district from which legal custody of the child was transferred, and the department shall transmit the child's records to the court. The court shall have jurisdiction to review the matter without conducting a formal hearing and to issue an order that either denies or grants release to the child. If the board requests review under this section, the child shall not be released until such time as the court has issued a decision. If the board does not petition the district court for review of the department's decision to grant or deny release within ten days of the department's decision, the department's decision shall be final, and the department shall release the child or continue the commitment in accordance with the terms of its decision.

[E.] C. The secretary of children, youth and families or the secretary's designee may review the case of any child upon the child's or the juvenile public safety advisory board's reasonable request at any time after release is denied."

SECTION 35. Section 32A-2-24 NMSA 1978 (being Laws 1993, Chapter 77, Section 53, as amended) is amended to read:

"32A-2-24. PROBATION REVOCATION--DISPOSITION.--

A. A child on probation incident to an adjudication as a delinquent child who violates a term of the probation may be proceeded against in a probation revocation proceeding. A proceeding to revoke probation shall be begun by filing in the original proceeding a petition styled as a "petition to revoke probation". Petitions to revoke probation shall be screened, reviewed and prepared in the same manner and shall contain the same information as petitions alleging delinquency. Procedures of the Delinquency Act regarding taking into custody and detention shall apply. The petition shall state the terms of probation alleged to have been violated and the factual basis for these allegations.

B. The standard of proof in probation revocation proceedings shall be [evidence beyond a reasonable doubt] preponderance of the evidence and the hearings shall be before the court without a jury. In all other respects, proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition. If a child is found to have violated a term of the child's probation, the court may extend the period of probation or make any other judgment or disposition that would have been appropriate in the original disposition of the case."

SECTION 36. 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 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.

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 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 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. Notwithstanding the provisions of Subsections A through K of this section, only with prior notice to the court, a party may reference a juvenile record and the contents of a juvenile record for the purposes of a hearing held in accordance with Article 2, Section 13 of the constitution of New Mexico, a hearing held pursuant to supreme court rule to consider or address conditions of release or a sentencing hearing. A party may reference the existence of a juvenile record in written pleadings but may not disclose the contents of the juvenile record unless otherwise allowed by law."

SECTION 37. Section 33-2-34 NMSA 1978 (being Laws 1999, Chapter 238, Section 1, as amended) is amended to read:

"33-2-34. ELIGIBILITY FOR EARNED MERITORIOUS DEDUCTIONS.--

A. To earn meritorious deductions, a prisoner confined in a correctional facility designated by the corrections department must be an active participant in programs recommended for the prisoner by the classification supervisor and approved by the warden or the warden's designee. Meritorious deductions shall not exceed the following amounts:

(1) for a prisoner confined for committing a serious violent offense, up to a maximum of four days per month of time served;

(2) for a prisoner confined for committing a nonviolent offense, up to a maximum of thirty days per month of time served;

(3) for a prisoner confined following revocation of parole for the alleged commission of a new felony offense or for absconding from parole, up to a maximum of four days per month of time served during the parole term following revocation; and

(4) for a prisoner confined following revocation of parole for a reason other than the alleged commission of a new felony offense or absconding from parole:

(a) up to a maximum of eight days per month of time served during the parole term following revocation, if the prisoner was convicted of a serious violent offense or failed to pass a drug test administered as a condition of parole; or

(b) up to a maximum of thirty days per month of time served during the parole term following revocation, if the prisoner was convicted of a nonviolent offense.

B. A prisoner may earn meritorious deductions upon recommendation by the classification supervisor, based upon the prisoner's active participation in approved programs and the quality of the prisoner's participation in those approved programs. A prisoner may not earn meritorious deductions unless the recommendation of the classification supervisor is approved by the warden or the warden's designee.

C. If a prisoner's active participation in approved programs is interrupted by a lockdown at a correctional facility, the prisoner may continue to be awarded meritorious deductions at the rate the prisoner was earning meritorious deductions prior to the lockdown, unless the warden or the warden's designee determines that the prisoner's conduct contributed to the initiation or continuance of the lockdown.

D. A prisoner confined in a correctional facility designated by the corrections department is eligible for lump-sum meritorious deductions as follows:

(1) for successfully completing an approved vocational, substance abuse or mental health program, one month; except when the prisoner has a demonstrable physical, mental health or developmental disability that prevents the prisoner from successfully earning a high school equivalency credential, in which case, the prisoner shall be awarded three months;

(2) for earning a high school equivalency credential, three months;

(3) for earning an associate's degree, four months;

(4) for earning a bachelor's degree, five months;

(5) for earning a graduate qualification, five months; and

(6) for engaging in a heroic act of saving life or property, engaging in extraordinary conduct for the benefit of the state or the public that is at great expense or risk to or involves great effort on the part of the prisoner or engaging in extraordinary conduct far in excess of normal program assignments that demonstrates the prisoner's commitment to self-rehabilitation. The classification supervisor and the warden or the warden's designee may recommend the number of days to be awarded in each case based upon the particular merits, but any award shall be determined by the director of the adult institutions division of the corrections department or the director's designee.

E. Lump-sum meritorious deductions, provided in Paragraphs (1) through (6) of Subsection D of this section, may be awarded in addition to the meritorious deductions provided in Subsections A and B of this section. Lump-sum meritorious deductions shall not exceed one year per award and shall not exceed a total of one year for all lump-sum meritorious deductions awarded in any consecutive twelve-month period.

F. A prisoner is not eligible to earn meritorious deductions if the prisoner:

(1) disobeys an order to perform labor, pursuant to Section 33-8-4 NMSA 1978;

(2) is in disciplinary segregation;

(3) is confined for committing a serious violent offense and is within the first sixty days of receipt by the corrections department; or

(4) is not an active participant in programs recommended and approved for the prisoner by the classification supervisor.

G. The provisions of this section shall not be interpreted as providing eligibility to earn meritorious deductions from a sentence of life imprisonment or a sentence of life imprisonment without possibility of release or parole.

H. The corrections department shall promulgate rules to implement the provisions of this section, and the rules shall be matters of public record. A concise summary of the rules shall be provided to each prisoner, and each prisoner shall receive a quarterly statement of the meritorious deductions earned.

I. A New Mexico prisoner confined in a federal or out-of-state correctional facility is eligible to earn meritorious deductions for active participation in programs on the basis of the prisoner's conduct and program reports furnished by that facility to the corrections department. All decisions regarding the award and forfeiture of meritorious deductions at such facility are subject to final approval by the director of the adult institutions division of the corrections department or the director's designee.

J. In order to be eligible for meritorious deductions, a prisoner confined in a federal or out-of-state correctional facility designated by the corrections department must actively participate in programs that are available. If a federal or out-of-state correctional facility does not have programs available for a prisoner, the prisoner may be awarded meritorious deductions at the rate the prisoner could have earned meritorious deductions if the prisoner had actively participated in programs.

K. A prisoner confined in a correctional facility in New Mexico that is operated by a private company, pursuant to a contract with the corrections department, is eligible to earn meritorious deductions in the same manner as a prisoner confined in a state-run correctional facility. All decisions regarding the award or forfeiture of meritorious deductions at such facilities are subject to final approval by the director of the adult institutions division of the corrections department or the director's designee.

L. As used in this section:

(1) "active participant" means a prisoner who has begun, and is regularly engaged in, approved programs;

(2) "program" means work, vocational, educational, substance abuse and mental health programs, approved by the classification supervisor, that contribute to a prisoner's self-betterment through the development of personal and occupational skills. "Program" does not include recreational activities;

(3) "nonviolent offense" means any offense other than a serious violent offense; and

(4) "serious violent offense" means:

(a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

(b) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

(d) third degree aggravated battery against a household member, as provided in Section 30-3-16 NMSA 1978;

(e) first degree kidnapping, as provided in Section 30-4-1 NMSA 1978;

(f) first and second degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(g) second and third degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(h) first and second degree robbery, as provided in Section 30-16-2 NMSA 1978;

(i) second degree aggravated arson, as provided in Section 30-17-6 NMSA 1978;

(j) shooting at a dwelling or occupied building, as provided in Section 30-3-8 NMSA 1978;

(k) shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(l) aggravated battery upon a peace officer, as provided in Section 30-22-25 NMSA 1978;

(m) assault with intent to commit a violent felony upon a peace officer, as provided in Section 30-22-23 NMSA 1978;

(n) aggravated assault upon a peace officer, as provided in Section 30-22-22 NMSA 1978; or

(o) any of the following offenses, when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section: 1) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978; 2) fourth degree aggravated assault, as provided in Section 30-3-2 NMSA 1978; 3) third degree assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; 4) fourth degree aggravated assault against a household member, as provided in Section 30-3-13 NMSA 1978; 5) third degree assault against a household member with intent to commit a violent felony, as provided in Section 30-3-14 NMSA 1978; 6) third and fourth degree aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; 7) second degree kidnapping, as provided in Section 30-4-1 NMSA 1978; 8) second degree abandonment of a child, as provided in Section 30-6-1 NMSA 1978; 9) first, second and third degree abuse of a child, as provided in Section 30-6-1 NMSA 1978; 10) third degree dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; 11) third and fourth degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; 12) fourth degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978; 13) third degree robbery, as provided in Section 30-16-2 NMSA 1978; 14) third degree homicide by vehicle or great bodily harm by vehicle, as provided in Section 66-8-101 NMSA 1978; [or] 15) battery upon a peace officer, as provided in Section 30-22-24 NMSA 1978; or 16) human trafficking, as provided in Section 30-52-1 NMSA 1978.

M. Except for sex offenders, as provided in Section 31-21-10.1 NMSA 1978, an offender sentenced to confinement in a correctional facility designated by the corrections department who has been released from confinement and who is serving a parole term may be awarded earned meritorious deductions of up to thirty days per month upon recommendation of the parole officer supervising the offender, with the final approval of the adult parole board. The offender must be in compliance with all the conditions of the offender's parole to be eligible for earned meritorious deductions. The adult parole board may remove earned meritorious deductions previously awarded if the offender later fails to comply with the conditions of the offender's parole. The corrections department and the adult parole board shall promulgate rules to implement the provisions of this subsection. This subsection applies to offenders who are serving a parole term on or after July 1, 2004."

SECTION 38. 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 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; [or]

(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 personally examined the respondent no more than [ten] 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 39. APPROPRIATION.--Five hundred thousand dollars ($500,000) is appropriated from the general fund to the administrative office of the courts for expenditure in fiscal year 2026 for additional costs due to global positioning systems or other costs associated with pretrial release conditions. Any unexpended or unencumbered balance remaining at the end of fiscal year 2026 shall revert to the general fund.

SECTION 40. REPEAL.--Section 32A-2-32.1 NMSA 1978 (being Laws 2007, Chapter 96, Section 1) is repealed.

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