SENATE BILL 502
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Mary Jane M. Garcia
AN ACT
RELATING TO SEX OFFENDER REGISTRATION; REQUIRING REGISTRATION FOR ADDITIONAL SEX OFFENSES; INCLUDING HUMAN TRAFFICKING OF CHILDREN UNDER SIXTEEN AS A SEX OFFENSE; REQUIRING ADDITIONAL INFORMATION UPON REGISTRATION; CLARIFYING THE INFORMATION AVAILABLE ON THE SEX OFFENDER INTERNET WEB SITE; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTIONS OF LAW IN LAWS 2007.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 29-11A-3 NMSA 1978 (being Laws 1995, Chapter 106, Section 3, as amended by Laws 2007, Chapter 68, Section 1 and by Laws 2007, Chapter 69, Section 5) is amended to read:
"29-11A-3. DEFINITIONS.--As used in the Sex Offender Registration and Notification Act:
A. "conviction" means a conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge;
B. "institution of higher education" means a:
(1) private or public post-secondary educational institution;
(2) trade school; or
(3) professional school;
C. "habitually lives" means any place where the sex offender lives for at least thirty days in any three-hundred- sixty-five-day period;
[C.] D. "registration requirement" means any requirement set forth in Section 29-11A-4 NMSA 1978 that requires a sex offender to register, provide information, including a DNA sample, renew, revise or change registration information or provide written notice or disclosure regarding the sex offender's status as a sex offender;
[D.] E. "sex offender" means a person who:
(1) is a resident of New Mexico who is convicted of a sex offense pursuant to state, federal, tribal or military law or pursuant to the law of a foreign nation that provides due process similar to that provided in the United States;
(2) changes residence to New Mexico, when that person has been convicted of a sex offense pursuant to state, federal, tribal or military law or pursuant to the law of a foreign nation that provides due process similar to that provided in the United States;
(3) does not have an established residence in New Mexico, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico and who has been convicted of a sex offense pursuant to state, federal, tribal or military law or pursuant to the law of a foreign nation that provides due process similar to that provided in the United States; or
(4) is a resident of another state and who has been convicted of a sex offense pursuant to state, federal, tribal or military law or pursuant to the law of a foreign nation that provides due process similar to that provided in the United States, but who is:
(a) employed full time or part time in New Mexico for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any calendar year, including any employment or vocation, whether financially compensated, volunteered or for the purpose of government or educational benefit; or
(b) enrolled on a full-time or part-
time basis in a private or public school or an institution of higher education in New Mexico; and
[E.] F. "sex offense" means any of the following offenses or their equivalents in any other jurisdiction:
(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second, third or fourth degree, as provided in Section 30-9-11 NMSA 1978;
(2) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978;
(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section
30-9-13 NMSA 1978;
(4) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;
(5) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;
(6) kidnapping, as provided in Section
30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;
(7) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;
(8) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;
(9) enticement of child, as provided in Section 30-9-1 NMSA 1978;
(10) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age;
(11) criminal sexual communication with a child, as provided in Section 30-37-3.3 NMSA 1978;
(12) voyeurism, as provided in Section 30-9-20 NMSA 1978;
(13) human trafficking, as provided in Section 30-52-1 NMSA 1978, when the victim is less than sixteen years of age;
[(11)] (14) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978;
[(12)] (15) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; [or]
(16) conspiracy to commit any of the sex offenses set forth in Paragraphs (1) through (15) of this subsection, as provided in Section 30-28-2 NMSA 1978; or
[(13)] (17) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(10)] (13) of this subsection, as provided in Section 30-28-1 NMSA 1978."
Section 2. Section 29-11A-4 NMSA 1978 (being Laws 1995, Chapter 106, Section 4, as amended) is amended to read:
"29-11A-4. REGISTRATION OF SEX OFFENDERS--INFORMATION REQUIRED--CRIMINAL PENALTY FOR NONCOMPLIANCE.--
A. A sex offender residing in this state shall register with the county sheriff for the county in which the sex offender resides.
B. A sex offender who is a resident of New Mexico shall register with the county sheriff no later than ten days after being released from the custody of the corrections department, a municipal or county jail or a federal, military or tribal correctional facility or detention center or being placed on probation or parole. A sex offender who changes [his] residence to New Mexico shall register with the county sheriff no later than ten days after [his] arrival in this state. When a sex offender registers with the county sheriff, [he] the sex offender shall provide the following registration information:
(1) [his] the sex offender's legal name and any other names or aliases that [he] the sex offender is using or has used;
(2) [his] the sex offender's date of birth;
(3) [his] the sex offender's social security number;
(4) [his] the sex offender's current address and the address of every place where the sex offender habitually lives;
(5) [his] the name and address of the sex offender's place of employment;
(6) [the sex] every offense for which [he was] the sex offender has been arrested or convicted; [and]
(7) the date and place of [his sex offense] every arrest or conviction;
(8) the sex offender's names, addresses, monikers or other self-identifiers used in internet communications or postings or on other communication devices;
(9) the sex offender's telephone numbers;
(10) the sex offender's professional licenses;
(11) the license plate or other identifier and the description of any vehicle owned or operated by the sex offender, including aircraft and watercraft;
(12) the name and address of any school or institution of higher education that the sex offender is attending; and
(13) copies of the sex offender's passport and immigration documents.
C. A sex offender who is a resident of another state but who is employed in New Mexico or attending public or private school or an institution of higher education in New Mexico shall register with the county sheriff for the county in which the sex offender is working or attending school or an institution of higher education. [D. A sex offender who is a resident of another state but who is employed in New Mexico or attending public or private school or an institution of higher education in New Mexico] The sex offender shall register [with the county sheriff] no later than ten days after beginning work or school. When the sex offender registers with the county sheriff, [he] the sex offender shall provide the following registration information:
(1) [his] the sex offender's legal name and any other names or aliases that [he] the sex offender is using or has used;
(2) [his] the sex offender's date of birth;
(3) [his] the sex offender's social security number;
(4) [his] the sex offender's current address and the address of every place where the sex offender habitually lives in [his] the sex offender's state of residence and, if applicable, the address of [his] the sex offender's place of lodging in New Mexico while [he is] working or attending school or an institution of higher education;
[(5) his place of employment or the name of the school he is attending;
(6) the sex offense for which he was convicted; and
(7) the date and place of his sex offense conviction]
(5) every offense for which the sex offender has been arrested or convicted;
(6) the date and place of every arrest or conviction;
(7) the sex offender's names, addresses, monikers or other self-identifiers used in internet communications or postings or on other communication devices;
(8) the sex offender's telephone numbers;
(9) the sex offender's professional licenses;
(10) the license plate or other identifier and description of any vehicle owned or operated by the sex offender, including aircraft and watercraft;
(11) the name and address of the sex offender's place of employment and any school or institution of higher education that the sex offender is attending; and
(12) copies of the sex offender's passport and immigration documents.
[E.] D. When a sex offender registers with a county sheriff, the sheriff shall obtain:
(1) a photograph of the sex offender, [and] a complete set of the sex offender's fingerprints and a palm print;
(2) a physical description, including a description of any tattoos, scars or other distinguishing features on the sex offender's body that would assist in identifying the sex offender; and
(3) a DNA sample [of his DNA] for inclusion in the sex offender DNA identification system pursuant to the provisions of the DNA Identification Act.
[F.] E. When a sex offender who is registered changes [his] residence within the same county, the sex offender shall send written notice of [his] the change of address to the county sheriff no later than ten days after establishing [his] the new residence.
[G.] F. When a sex offender who is registered changes [his] residence to a new county in New Mexico, the sex offender shall register with the county sheriff of the new county no later than ten days after establishing [his] the new residence. The sex offender shall also send written notice of the change in residence to the county sheriff with whom [he] the sex offender last registered no later than ten days after establishing [his] the new residence.
[H.] G. When a sex offender who is registered or required to register does not have an established residence, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico, the sex offender shall register with the county sheriff for each county in which the sex offender is living or temporarily located. The sex offender shall register no later than ten days after a change in [his] living arrangements or temporary location.
[I.] H. When a sex offender who is registered or required to register is employed, begins a vocation or is enrolled as a student at an institution of higher education in New Mexico, the sex offender shall disclose [his] the sex offender's status as a sex offender in writing to the county sheriff for the county in which the institution of higher education is located, the law enforcement entity responsible for the institution of higher education and the registrar for the institution of higher education no later than ten days after beginning employment, beginning a vocation or enrolling at the institution of higher education. The sex offender shall also send written notice of any change regarding [his] employment, vocation or enrollment status at an institution of higher education to the county sheriff, the law enforcement entity and the registrar no later than ten days after the change in [his] employment, vocation or enrollment status.
[J.] I. When a sex offender who is registered or required to register is employed or is enrolled as a student at a public or private school in New Mexico, the sex offender shall disclose [his] the sex offender's status as a sex offender in writing to the county sheriff for the county in which the school is located and to the principal of the school no later than ten days after beginning employment or enrolling at the school. The sex offender shall also send written notice of any change regarding [his] employment or enrollment status at a school to the county sheriff and the principal no later than ten days after the change in [his] employment or enrollment status.
[K.] J. When a sex offender who is registered or required to register is employed, begins a vocation or volunteers [his] services, regardless of whether the sex offender receives payment or other compensation, the sex offender shall disclose [his] the sex offender's status as a sex offender in writing to [his] the sex offender's employer, supervisor or person similarly situated. The written disclosure shall be made immediately upon beginning [his] employment, vocation or volunteer service.
[L.] K. Following [his] initial registration pursuant to the provisions of this section:
(1) a sex offender [required to register pursuant to the provisions of] convicted of any of the sex offenses enumerated in Subsection D of Section 29-11A-5 NMSA 1978 or their equivalents shall renew [his] registration with the county sheriff not less than once in each ninety-day period following the date of the sex offender's initial registration for the entirety of [his] the sex offender's natural life; and
(2) a sex offender [required to register pursuant to the provisions of] convicted of any of the sex offenses enumerated in Subsection E of Section 29-11A-5 NMSA 1978 or their equivalents shall annually renew [his] the sex offender's registration with the county sheriff prior to December 31 of each subsequent calendar year for a period of ten years.
[M.] L. Notwithstanding the provisions of Paragraph (2) of Subsection [L] K of this section, if a sex offender is convicted a second or subsequent time for a sex offense set forth in Subsection E of Section 29-11A-5 NMSA 1978, [he] the sex offender shall renew [his] registration with the county sheriff not less than once in each ninety-day period following the date of the sex offender's initial registration for the entirety of [his] the sex offender's natural life.
[N.] M. A sex offender who willfully or knowingly fails to comply with the registration requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. A sex offender who willfully or knowingly fails to comply with the registration requirements set forth in this section after a first or subsequent conviction for a violation pursuant to this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. The willful failure to comply with any registration requirement set forth in this section shall be deemed part of a continuing transaction or occurrence. A conviction pursuant to this subsection shall not be considered a felony for purposes of the imposition of sentencing enhancements pursuant to the provisions of Section 31-18-17 NMSA 1978.
[O.] N. A sex offender who willfully or knowingly provides false information when complying with the registration requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. A sex offender who willfully or knowingly provides false information when complying with the registration requirements set forth in this section after a first or subsequent conviction for a violation pursuant to this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. The willful providing by a sex offender of false information with respect to the registration requirements set forth in this section shall be deemed part of a continuing transaction or occurrence. A conviction pursuant to this subsection shall not be considered a felony for purposes of the imposition of sentencing enhancements pursuant to the provisions of Section 31-18-17 NMSA 1978."
Section 3. Section 29-11A-5 NMSA 1978 (being Laws 1995, Chapter 106, Section 5, as amended by Laws 2007, Chapter 68, Section 2 and by Laws 2007, Chapter 69, Section 6) is amended to read:
"29-11A-5. LOCAL REGISTRY--CENTRAL REGISTRY--ADMINISTRATION BY DEPARTMENT OF PUBLIC SAFETY--PARTICIPATION IN THE NATIONAL SEX OFFENDER REGISTRY--RULES.--
A. A county sheriff shall maintain a local registry of sex offenders in the sheriff's jurisdiction required to register pursuant to the provisions of the Sex Offender Registration and Notification Act.
B. The county sheriff shall forward:
(1) registration information obtained from sex offenders to the department of public safety. The initial registration information and any new registration information subsequently obtained from a sex offender shall be forwarded by the county sheriff no later than ten working days after the information is obtained from a sex offender. If the department of public safety receives information regarding a sex offender from a governmental entity other than a county sheriff, the department shall send that information to the sheriff for the county in which the sex offender resides; and
(2) samples of DNA obtained from sex offenders to the administrative center for the sex offender DNA identification system pursuant to the provisions of the DNA Identification Act.
C. The department of public safety shall maintain a central registry of sex offenders required to register pursuant to the provisions of the Sex Offender Registration and Notification Act. The department shall participate in the national sex offender registry administered by the United States department of justice. The department shall send conviction information and fingerprints for all sex offenders registered in New Mexico to the national sex offender registry administered by the United States department of justice and to the federal bureau of investigation.
D. The department of public safety shall retain registration information regarding a sex offender convicted for any of the following sex offenses for the entirety of the sex offender's natural life:
(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;
(2) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section
30-9-13 NMSA 1978;
(3) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;
(4) kidnapping, as provided in Section
30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;
[(5) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978; or]
(5) human trafficking, as provided in Section 30-52-1 NMSA 1978, when the victim is less than sixteen years of age;
(6) conspiracy to commit any of the sex offenses set forth in Paragraphs (1) through (5) of this subsection, as provided in Section 30-28-2 NMSA 1978; or
[(6)] (7) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (5) of this subsection, as provided in Section 30-28-1 NMSA 1978.
E. The department of public safety shall retain registration information regarding a sex offender convicted for the following offenses for a period of ten years following the sex offender's conviction, release from prison or release from probation or parole, whichever occurs later:
(1) criminal sexual penetration in the fourth degree, as provided in Section 30-9-11 NMSA 1978;
(2) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;
(3) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;
(4) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;
(5) enticement of child, as provided in Section 30-9-1 NMSA 1978;
(6) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age;
(7) criminal sexual communication with a child, as provided in Section 30-37-3.3 NMSA 1978;
(8) voyeurism, as provided in Section 30-9-20 NMSA 1978;
[(7)] (9) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978;
[(8)] (10) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978; [or]
(11) conspiracy to commit any of the sex offenses set forth in Paragraphs (1) through (10) of this subsection, as provided in Section 30-28-2 NMSA 1978; or
[(9)] (12) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(6)] (8) of this subsection, as provided in Section 30-28-1 NMSA 1978.
F. Notwithstanding the provisions of Subsection E of this section, if a sex offender is convicted a second or subsequent time for a sex offense set forth in that subsection, the department of public safety shall retain information regarding the sex offender for the entirety of the sex offender's natural life.
G. The department of public safety shall adopt rules necessary to carry out the provisions of the Sex Offender Registration and Notification Act. Rules necessary for the collection of DNA samples and the administration and operation of the sex offender DNA identification system shall be adopted by the DNA identification system oversight committee pursuant to the provisions of the DNA Identification Act."
Section 4. Section 29-11A-5.1 NMSA 1978 (being Laws 1999, Chapter 19, Section 8, as amended) is amended to read:
"29-11A-5.1. PUBLIC ACCESS TO INFORMATION REGARDING CERTAIN REGISTERED SEX OFFENDERS--ACTIVE COMMUNITY NOTIFICATION--INTERNET WEB SITE.--
A. If a sex offender is convicted of one of the following sex offenses, the county sheriff shall forward registration information obtained from the sex offender to the district attorney for the judicial district in which the sex offender resides and, if the sex offender is a resident of a municipality, the chief law enforcement officer for the municipality in which the sex offender resides:
(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;
(2) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section
30-9-13 NMSA 1978;
(3) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;
(4) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978; or
(5) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (4) of this subsection, as provided in Section 30-28-1 NMSA 1978.
B. A person who wants to obtain registration information regarding sex offenders described in Subsection A of this section may request that information from the:
(1) sheriff for the county in which the sex offenders reside;
(2) chief law enforcement officer for the municipality in which the sex offenders reside;
(3) district attorney for the judicial district in which the sex offenders reside; or
(4) secretary of public safety.
C. Upon receiving a request for registration information regarding sex offenders described in Subsection A of this section, the county sheriff, chief municipal law enforcement officer, district attorney or secretary of public safety shall provide that registration information, with the exception of a sex offender's social security number and DNA information, within a reasonable period of time, and no later than seven days after receiving the request.
D. Within seven days of receiving registration information from a sex offender described in Subsection A of this section, the county sheriff shall contact every licensed daycare center, elementary school, middle school and high school within a one-mile radius of the sex offender's residence and provide them with the sex offender's registration information, with the exception of the sex offender's social security number and DNA information.
E. The department of public safety shall establish and manage an internet web site that provides the public with registration information regarding sex offenders described in Subsection A of this section, except that the department of public safety shall not provide registration information on the internet web site regarding a sex offender who was less than eighteen years of age when the sex offender committed the sex offense for which the sex offender was convicted as a youthful offender, as provided in Section 32A-2-3 NMSA 1978, unless at the time of sentencing, the court made a finding that the sex offender is not amenable to treatment and is a danger to the community. [The registration information provided to the public pursuant to this subsection shall not include a sex offender's social security number or DNA information or a sex offender's place of employment, unless the sex offender's employment requires the sex offender to have direct contact with children.] The internet web site shall provide the following registration information:
(1) the sex offender's legal name and any other names or aliases that the sex offender is using or has used;
(2) the sex offender's current address and the address of every place where the sex offender habitually lives;
(3) the address of the sex offender's place of employment, if the sex offender's employment requires the sex offender to have direct contact with children;
(4) every sex offense for which the sex offender has been convicted;
(5) the sex offender's professional licenses;
(6) the license plate or other identifier and description of any vehicle owned or operated by the sex offender, including aircraft and watercraft;
(7) a photograph of the sex offender;
(8) a physical description, including a description of any tattoos, scars or other distinguishing features on the sex offender's body that would assist in identifying the sex offender; and
(9) the sex offender's date of birth."
Section 5. APPLICABILITY.--The provisions of this act apply to:
A. a person convicted of a sex offense on or after July 1, 2005; and
B. a person convicted of a sex offense prior to July 1, 2005 and who, on July 1, 2005, was still incarcerated, on probation or on parole for commission of that sex offense.
Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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