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

RELATING TO CONTROLLED SUBSTANCES; AMENDING PENALTIES FOR POSSESSION OF A CONTROLLED SUBSTANCE; PROVIDING THE DISTRICT COURT WITH EXCLUSIVE JURISDICTION OF PROCEEDINGS REGARDING POSSESSION OF A CONTROLLED SUBSTANCE; REQUIRING A CONDITIONAL DISCHARGE FOR A FIRST OR SECOND OFFENSE REGARDING POSSESSION OF A CONTROLLED SUBSTANCE; AUTHORIZING REFERRAL TO A DRUG TREATMENT PROGRAM; AMENDING SECTIONS OF THE CONTROLLED SUBSTANCES ACT; MAKING AN APPROPRIATION.

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

Section 1. Section 30-31-23 NMSA 1978 (being Laws 1972, Chapter 84, Section 23, as amended by Laws 1990, Chapter 19, Section 5 and also by Laws 1990, Chapter 33, Section 1) is amended to read:

"30-31-23. CONTROLLED SUBSTANCES--POSSESSION PROHIBITED.--

A. It is unlawful for [any] a person intentionally to possess a controlled substance unless the substance was obtained pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or except as otherwise authorized by the Controlled Substances Act. It is unlawful for [any] a person intentionally to possess a controlled substance analog.

B. [Any] A person who violates this section with respect to:

(1) one ounce or less of marijuana is, for the first offense, guilty of a petty misdemeanor and shall be punished by a fine of not less than fifty dollars ($50.00) or more than one hundred dollars ($100) and by imprisonment for not more than fifteen days, and, for the second and subsequent offenses, guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both;

(2) more than one ounce and less than eight ounces of marijuana is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both; or

(3) eight ounces or more of marijuana is for the first or second offense, guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both. Upon a third or subsequent offense, the person is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Except [for those substances listed] as provided in Subsection D of this section, [any] a person who violates this section with respect to any amount of any controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a substance enumerated in Schedule I, II, III or IV is guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both.

D. [Any] A person who violates this section with respect to phencyclidine as enumerated in Schedule III or a controlled substance analog of phencyclidine; 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; or a narcotic drug enumerated in Schedule I or II or a controlled substance analog of a narcotic drug enumerated in Schedule I or II is for the first or second offense, guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both. Upon a third or subsequent offense, the person is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

E. The district court has exclusive jurisdiction of all proceedings for the offenses set forth in this section."

Section 2. Section 30-31-28 NMSA 1978 (being Laws 1972, Chapter 84, Section 28) is amended to read:

"30-31-28. CONDITIONAL DISCHARGE FOR POSSESSION [AS]-- FIRST OR SECOND OFFENSE.--

A. If [any] a person, who has not previously been convicted or has previously been convicted once of violating the laws of any state or any laws of the United States relating to narcotic drugs, marijuana, hallucinogenic or depressant or stimulant substances, is found guilty of a violation of Section [23] 30-31-23 NMSA 1978, after trial or upon a plea of guilty, the court [may] shall, without entering a judgment of guilty and with the consent of the person, defer further proceedings and place him on probation upon reasonable conditions and for a period, not to exceed one year, as the court may prescribe. The conditions of probation may include a referral by the court to a drug treatment program administered by or approved by the department of health.

B. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against the person and discharge him from probation before the expiration of the maximum period prescribed from the person's probation.

C. If during the period of his probation the person does not violate any of the conditions of the probation, then upon expiration of the period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt, but a nonpublic record shall be retained by the attorney general solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, the person qualifies under this section. A discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime [including the penalties prescribed under this section for second or subsequent convictions or for any other purpose. Discharge and dismissal under this section may occur only once with respect to any person].

D. Upon the dismissal of a person and discharge of the proceedings against him under this section, a person, if he was not over eighteen years of age at the time of the offense, may apply to the court for an order to expunge from all official records all recordation relating to his arrest, indictment or information, trial, finding or plea of guilty, and dismissal and discharge pursuant to this section except nonpublic records filed with the attorney general. If the court determines, after hearing, that the person was dismissed and the proceedings against him discharged and that he was not over eighteen years of age at the time of the offense, it shall enter the order. The effect of the order shall be to restore the person, in the contemplation of the law, to the status he occupied before the arrest or indictment or information. No person in whose behalf an order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or information or trial in response to any inquiry made of him for any purpose."

Section 3. APPROPRIATION.--One million dollars ($1,000,000) is appropriated from the tobacco settlement program fund to the department of health for expenditures in fiscal year 2003 for the purpose of providing drug treatment services in lieu of incarceration. Any unexpended or unencumbered balance remaining at the end of fiscal year 2003 shall revert to the tobacco settlement program fund.

Section 4. APPLICABILITY.--The provisions of this act apply to persons convicted for an offense of possession of a controlled substance, as provided in Section 30-31-23 NMSA 1978, when the offense was committed on or after July 1, 2002.

Section 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2002.