45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO LAW ENFORCEMENT; CLARIFYING THE STATUTE REGARDING CERTAIN CITATIONS ISSUED BY OFFICERS; PROVIDING AUTHORITY FOR PUBLIC SECURITY GUARDS TO ISSUE PARKING CITATIONS; CREATING A FUND; PROVIDING FOR A PEACE OFFICER APPEARANCE FEE; MAKING AN APPROPRIATION.

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

Section 1. Section 35-6-1 NMSA 1978 (being Laws 1968, Chapter 62, Section 92, as amended by Laws 2001, Chapter 277, Section 2 and also by Laws 2001, Chapter 279, Section 2) is amended to read:

"35-6-1. MAGISTRATE COSTS--SCHEDULE--DEFINITION OF

"CONVICTED".--

A. Magistrate judges, including metropolitan court judges, shall assess and collect and shall not waive, defer or suspend the following costs:

docket fee, criminal actions under Section 29-5-1 NMSA 1978 $ 1.00;

docket fee, to be collected prior to docketing any other

criminal action, except as provided in Subsection B

of Section 35-6-3 NMSA 1978 20.00.

Proceeds from this docket fee shall be transferred to the administrative office of the courts for deposit in the court facilities fund;

docket fee, ten dollars ($10.00) of which shall be

deposited in the court automation fund and fifteen dollars ($15.00) of which shall be deposited in the civil legal services fund, to be collected prior to docketing any civil action, except as provided in Subsection A of Section 35-6-3 NMSA 1978 62.00;

jury fee, to be collected from the party demanding trial by jury in any civil action at the time the demand is filed or made 25.00;

copying fee, for making and certifying copies of any records in the court, for each page copied by photographic process .50.

Proceeds from this copying fee shall be transferred to the administrative office of the courts for deposit in the court facilities fund; and

copying fee, for computer-generated or electronically

transferred copies, per page 1.00.

Proceeds from this copying fee shall be transferred

to the administrative office of the courts for

deposit in the court automation fund.

Except as otherwise specifically provided by law, docket fees shall be paid into the court facilities fund.

B. Except as otherwise provided by law, no other costs or fees shall be charged or collected in the magistrate or metropolitan court.

C. The magistrate or metropolitan court may grant free process to any party in any civil proceeding or special statutory proceeding upon a proper showing of indigency. The magistrate or metropolitan court may deny free process if it finds that the complaint on its face does not state a cause of action.

D. As used in this subsection, "convicted" means the defendant has been found guilty of a criminal charge by the magistrate or metropolitan judge, either after trial, a plea of guilty or a plea of nolo contendere. Magistrate judges, including metropolitan court judges, shall assess and collect and shall not waive, defer or suspend the following costs:

(1) corrections fee in any county without a metropolitan court, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance that may be enforced by the imposition of a term of imprisonment

$10.00;

(2) court automation fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance that may be enforced by the imposition of a term of imprisonment 10.00;

(3) traffic safety fee, to be collected upon

conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle 3.00;

(4) judicial education fee, to be collected upon conviction from persons convicted of operating a motor vehicle in violation of the Motor Vehicle Code, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance punishable by a term of

imprisonment 1.00;

(5) brain injury services fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle 5.00;

[and]

(6) court facilities fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle, convicted of a crime constituting a misdemeanor or a petty misdemeanor or convicted of violating any ordinance that may be enforced by the imposition of a term of imprisonment as follows:

in a county with a metropolitan court 24.00;

in any other county 10.00; and

(7) peace officer appearance fee, to be collected upon conviction from persons convicted of violating any provision of the Motor Vehicle Code involving the operation of a motor vehicle and deposited in the peace officer appearance fund 10.00.

E. Metropolitan court judges shall assess and collect and shall not waive, defer or suspend as costs a mediation fee not to exceed five dollars ($5.00) for the docketing of small claims and criminal actions specified by metropolitan court rule. Proceeds of the mediation fee shall be deposited into the metropolitan court mediation fund."

Section 2. Section 35-14-11 NMSA 1978 (being Laws 1983, Chapter 134, Section 6, as amended) is amended to read:

"35-14-11. MUNICIPAL ORDINANCE--COURT COSTS--

COLLECTION--PURPOSE.--

A. Every municipality shall enact an ordinance requiring assessment of corrections fees, judicial education fees, [and] court automation fees and peace officer appearance fees to be collected as court costs and used as provided in this section.

B. As used in this [subsection] section, "convicted" means the defendant has been found guilty of a criminal charge by a municipal judge, either after trial, a plea of guilty or a plea of nolo contendere. A municipal judge shall collect the following costs:

(1) a corrections fee of ten dollars ($10.00);

(2) a judicial education fee of one dollar ($1.00); [and]

(3) a court automation fee of six dollars ($6.00); and

(4) a peace officer appearance fee of ten dollars ($10.00).

C. The fees are to be collected upon conviction from persons convicted of violating any ordinance relating to the operation of a motor vehicle or any ordinance that may be enforced by the imposition of a term of imprisonment.

D. All money collected pursuant to Paragraph (1) of Subsection B of this section and any remaining balance from Subsection G of this section shall be deposited in a special fund in the municipal treasury and shall be used for municipal jailer or juvenile detention officer training, for the construction planning, construction, operation and maintenance of a municipal jail or juvenile detention facility, for paying the cost of housing municipal prisoners in a county jail or housing juveniles in a detention facility or for complying with match or contribution requirements for the receipt of federal funds relating to jails or juvenile detention facilities.

E. All money collected pursuant to Paragraph (2) of Subsection B of this section shall be remitted monthly to the state treasurer for credit to the judicial education fund and shall be used for the education and training, including production of bench books and other written materials, of municipal judges and other municipal court employees.

F. All money collected pursuant to Paragraph (3) of Subsection B of this section shall be remitted monthly to the state treasurer for credit to the municipal court automation fund and shall be used for the purchase and maintenance of court automation systems in the municipal courts. The court automation systems shall have the capability of providing, on a timely basis, electronic records in a format specified by the judicial information system council.

G. All money collected pursuant to Paragraph (4) of Subsection B of this section shall be deposited in a special fund in the municipal treasury and shall be used first for the purpose of compensating the municipality for overtime paid to police officers for attending court hearings. Any remaining balance in the fund may be used for the purposes described in Subsection D of this section."

Section 3. Section 66-8-117 NMSA 1978 (being Laws 1978, Chapter 35, Section 525, as amended) is amended to read:

"66-8-117. PENALTY ASSESSMENT MISDEMEANORS--OPTION--EFFECT.--

A. Unless a verbal warning or warning notice is given, at the time of making an arrest for any penalty assessment misdemeanor the arresting officer shall offer the alleged violator the option of accepting a penalty assessment. The violator's signature on the penalty assessment notice constitutes an acknowledgment of guilt of the offense stated in the notice.

B. Except for penalty assessments made under a municipal program authorized by Section 66-8-130 NMSA 1978, payment of any penalty assessment must be made by mail or credit card to the division within thirty days from the date of arrest. Payments of penalty assessments are timely if postmarked within thirty days from the date of arrest. The division may issue a receipt when a penalty assessment is paid by currency, or credit card, but checks tendered by the violator upon which payment is received are sufficient receipt.

C. No record of any penalty assessment payment is admissible as evidence in any court in any civil action."

Section 4. Section 66-8-123 NMSA 1978 (being Laws 1978, Chapter 35, Section 531, as amended) is amended to read:

"66-8-123. CONDUCT OF ARRESTING OFFICER--NOTICES BY CITATION.--

A. Except as provided in Section 66-8-122 NMSA 1978, unless a verbal warning, penalty assessment or written warning notice is given, whenever a person is arrested for any violation of the Motor Vehicle Code or other law relating to motor vehicles punishable as a misdemeanor, the arresting officer, using the uniform traffic citation, shall manually or electronically complete the information section and prepare a notice to appear in court, specifying the time and place to appear, have the arrested person sign the agreement to appear as specified, give a copy of the citation to the arrested person and release him from custody.

B. Whenever a person is arrested for violation of a penalty assessment misdemeanor and elects to pay the penalty assessment, the arresting officer, using the uniform traffic citation, shall manually or electronically complete the information section and prepare the penalty assessment notice indicating the amount of the penalty assessment, have the arrested person sign the agreement to pay the amount prescribed, give a copy of the citation along with a business reply envelope addressed to the motor vehicle division, Santa Fe to the arrested person and release him from custody. No officer shall accept custody or payment of any penalty assessment. If the arrested person declines to accept a penalty assessment notice, the officer shall issue a notice to appear.

C. The arresting officer may issue a verbal warning or may manually or electronically issue a written warning notice. [but] Unless a verbal warning is issued, the officer shall fill in the information section of the uniform traffic citation and give a copy to the arrested person after requiring his signature on the written warning notice as an acknowledgment of receipt. No written warning notice issued under this section shall be used as evidence of conviction for purposes of suspension or revocation of license under Section 66-5-30 NMSA 1978.

D. In order to secure his release, the arrested person must give his written promise to appear in court or to pay the penalty assessment prescribed or acknowledge receipt of a written warning notice. An arresting officer may release any person arrested after the officer has given the person a verbal warning.

E. Any officer violating this section is guilty of a misconduct in office and is subject to removal.

F. A law enforcement officer who arrests a person without a warrant for a misdemeanor violation of the Motor Carrier Act, the Criminal Code, the Liquor Control Act or other New Mexico law may manually or electronically use the uniform traffic citation, issued pursuant to procedures outlined in Section 31-1-6 NMSA 1978, Subsections B through E, in lieu of taking him to jail."

Section 5. Section 66-8-124 NMSA 1978 (being Laws 1961, Chapter 213, Section 3, as amended) is amended to read:

"66-8-124. ARRESTING OFFICER TO BE IN UNIFORM.--

A. No person shall be arrested for violating the Motor Vehicle Code or other law relating to motor vehicles punishable as a misdemeanor except by a commissioned, salaried peace officer who, at the time of arrest, is wearing a uniform clearly indicating his official status.

B. Notwithstanding the provisions of Subsection A of this section, a municipality may provide by ordinance that uniformed public and private security guards may be commissioned by the local police agency to manually or electronically issue parking citations for violations of clearly and properly marked no parking zones, loading zones, metered parking zones, special permit zones, fire zones and handicapped zones. Prior to the commissioning of any security guard, the employer of the security guard shall agree in writing with the local police agency to [said] the commissioning of the employer's security guard. The employer of any security guard commissioned under the provisions of this section shall be liable for the actions of that security guard in carrying out his duties pursuant to that commission. Notwithstanding the provisions of the Tort Claims Act, private security guards commissioned under this section shall not be deemed public employees under that act."

Section 6. Section 66-8-126 NMSA 1978 (being Laws 1978, Chapter 35, Section 534) is amended to read:

"66-8-126. FAILURE TO OBEY NOTICE TO APPEAR.--

A. It is a misdemeanor for any person to violate his written promise to appear in court given to an officer upon manual or electronic issuance of a uniform traffic citation regardless of the disposition of the charge for which the citation was issued.

B. A written promise to appear in court may be complied with by appearance of counsel."

Section 7. Section 66-8-130 NMSA 1978 (being Laws 1978, Chapter 35, Section 538, as amended) is amended to read:

"66-8-130. ALL TRAFFIC CITATIONS TO CONFORM-- MUNICIPALITIES MAY PASS ORDINANCE TO ESTABLISH SIMILAR PROGRAM.--

A. The uniform traffic citation shall manually or electronically be used by all state and local agencies enforcing laws and ordinances relating to motor vehicles. [Any] A municipality may, by passage of an ordinance, establish a municipal penalty assessment program similar to that established in Sections 66-8-116 through 66-8-117 NMSA 1978 for violations of provisions of the Motor Vehicle Code. Every municipality that has adopted an ordinance to establish a penalty assessment program shall assess on all penalty assessment misdemeanors after January 1, 1984, in addition to the penalty assessment, a penalty assessment fee of ten dollars ($l0.00) to be deposited in a special fund in the municipal treasury for use by the municipality only for municipal jailer training; for the construction planning, construction, operation and maintenance of the municipal jail; for paying the costs of housing [that municipality's] prisoners in other detention facilities in the state; or for complying with match or contribution requirements for the receipt of federal funds relating to jails. Such a municipal program shall be limited to violations of municipal traffic ordinances.

B. All penalty assessments under a municipal program authorized by this section shall be processed by the municipal court, and all fines and fees collected shall be deposited in the treasury of the municipality. A copy of each penalty assessment processed shall be forwarded to the division within ten days of completion of local processing for posting to the driver's record. With the prior approval of the director, the required information may be submitted to the division by electronic means in lieu of forwarding copies of the penalty assessments.

C. Each agency shall provide itself with copies conforming exactly in size and format with the uniform traffic citation prescribed by the director, and any alterations to conform with local conditions must be approved by the director."

Section 8. [NEW MATERIAL] PEACE OFFICER APPEARANCE FUND CREATED--ADMINISTRATION--DISTRIBUTION.--

A. There is created in the state treasury the "peace officer appearance fund" to be administered by the administrative office of the courts.

B. Peace officer appearance fees assessed by a magistrate or metropolitan court judge pursuant to Section 35-6-1 NMSA 1978 shall be deposited in the peace officer appearance fund.

C. All balances in the peace officer appearance fund are appropriated to the administrative office of the courts for distribution to and expenditure by the local government or state agency that employed the officer who issued the citation and appeared at a hearing that resulted in conviction of a person for a violation involving the operation of a motor vehicle pursuant to the provisions of the Motor Vehicle Code.

D. A distribution to a local government or a state agency shall be made:

(1) based on the number of citations issued by the peace officers of that local government or state agency that resulted in convictions;

(2) on a quarterly basis; and

(3) upon certification by the magistrate or metropolitan court that:

(a) the fee was paid by a person convicted of a violation of the provisions of the Motor Vehicle Code; and

(b) the peace officer issuing the citation for the violation was present at a hearing that led to the conviction.

E. Payments from the peace officer appearance fund shall be made upon vouchers issued and signed by the director of the administrative office of the courts upon warrants drawn by the secretary of finance and administration.

F. Money distributed to a state agency or local government that is not a tribal government shall be deposited in the general fund of that entity and shall be used first for the purpose of compensating peace officers for attending court hearings. Any remaining balance in the fund on June 30 of any year shall revert to the administrative office of the courts and is appropriated as of July 1 of that year for distribution for any purpose for which a fee is assessed and collected pursuant to the provisions of Subsection D of Section 35-6-1 NMSA 1978.

G. As used in this section:

(1) "local government" means a municipality, a county or a tribal government;

(2) "peace officer" means a law enforcement agent who is authorized by Section 29-1-11 NMSA 1978 or by a law enforcement agency of a local government to issue uniform traffic citations for violations of the Motor Vehicle Code; and

(3) "tribal government" means the governing body of an Indian nation, tribe or pueblo located wholly or partially in the state.