SENATE BILL 408

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Lisa A. Torraco

AN ACT

RELATING TO DOMESTIC VIOLENCE; REQUIRING LAW ENFORCEMENT OFFICERS TO DETERMINE WHO THE PREDOMINANT AGGRESSOR IS WHEN RESPONDING TO A DOMESTIC ABUSE INCIDENT.

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

     SECTION 1. Section 29-7-4.1 NMSA 1978 (being Laws 2002, Chapter 34, Section 3 and Laws 2002, Chapter 35, Section 3) is amended to read:

     "29-7-4.1. DOMESTIC ABUSE INCIDENT TRAINING.--Domestic abuse incident training shall be included in the curriculum of each basic law enforcement training class, including training on identifying the predominant aggressor when reporting to the scene of a domestic abuse incident. Domestic abuse incident training shall be included as a component of in-service training each year for certified police officers."

     SECTION 2. Section 31-1-7 NMSA 1978 (being Laws 1979, Chapter 178, Section 1, as amended) is amended to read:

     "31-1-7. ARREST WITHOUT WARRANT--LIABILITY.--

          A. Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic [disturbance] abuse incident and has probable cause to believe that the person has committed an assault or a battery upon a household member. [As used in this section: "household member" means a spouse; former spouse; family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child; or a person with whom the victim has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section.]

          B. If a peace officer receives a complaint of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine who the predominant aggressor was. If the officer determines that one person was the predominant aggressor, the officer need not arrest the other person alleged to have committed an assault or battery upon a household member. In determining who the predominant aggressor was, the officer shall consider:

                (1) any prior complaints of domestic violence;

                (2) the relative severity of injuries inflicted on each person;

                (3) the seriousness of any threats creating fear of serious injury to another household member or another person;

                (4) the likelihood of future injury to each of the parties; and

                (5) whether one of the parties acted in self- defense.

          [B.] C. No peace officer shall be held criminally or civilly liable for making an arrest pursuant to this section, provided [he] that the officer acts in good faith and without malice.

          [C.] D. Whether or not an arrest is made pursuant to this section, a peace officer may remain with the victim and assist the victim in getting to a shelter or receiving proper medical attention.

          E. As used in this section:

                (1) "household member" means a spouse; former spouse; family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child of the victim; or a person with whom the victim has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section; and

                (2) "predominant aggressor" has the same meaning as set forth in the Family Violence Protection Act."

     SECTION 3. Section 40-13-1.1 NMSA 1978 (being Laws 2002, Chapter 34, Section 2 and Laws 2002, Chapter 35, Section 2) is amended to read:

     "40-13-1.1. LEGISLATIVE FINDINGS--STATE POLICY--DUAL ARRESTS.--The legislature finds that domestic abuse incidents are complex and require special training on the part of law enforcement officers to respond appropriately to domestic abuse incidents. The state [of New Mexico] discourages dual arrests of persons involved in incidents of domestic abuse and encourages law enforcement officers to analyze each domestic abuse incident to determine whether a particular party is the predominant aggressor. A law enforcement officer, in making arrests for domestic abuse, shall seek to identify and shall consider whether one of the parties acted in [self defense] self-defense."

     SECTION 4. Section 40-13-2 NMSA 1978 (being Laws 1987, Chapter 286, Section 2, as amended) is amended to read:

     "40-13-2. DEFINITIONS.--As used in the Family Violence Protection Act:

          A. "continuing personal relationship" means a dating or intimate relationship;

          B. "co-parents" means persons who have a child in common, regardless of whether they have been married or have lived together at any time;

          C. "court" means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;

          D. "domestic abuse":

                (1) means an incident of stalking or sexual assault whether committed by a household member or not;

                (2) means an incident by a household member against another household member consisting of or resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) bodily injury or assault;

                     (d) a threat causing imminent fear of bodily injury by any household member;

                     (e) criminal trespass;

                     (f) criminal damage to property;

                     (g) repeatedly driving by a residence or work place;

                     (h) telephone harassment;

                     (i) harassment; or

                     (j) harm or threatened harm to children as set forth in this paragraph; and

                (3) does not mean the use of force in self-defense or the defense of another;

          E. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;

          F. "mutual order of protection" means an order of protection that includes provisions that protect both parties;

          G. "order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

          H. "predominant aggressor" means the most significant, rather than the first, aggressor at the scene of competing claims of domestic violence;

          [H.] I. "protected party" means a person protected by an order of protection; and

          [I.] J. "restrained party" means a person who is restrained by an order of protection."

     SECTION 5. Section 40-13-7 NMSA 1978 (being Laws 1987, Chapter 286, Section 7, as amended) is amended to read:

     "40-13-7. LAW ENFORCEMENT OFFICERS--EMERGENCY ASSISTANCE--LIMITED LIABILITY--PROVIDING NOTIFICATION TO VICTIMS WHEN AN ALLEGED PERPETRATOR IS RELEASED FROM DETENTION--STATEMENT IN JUDGMENT AND SENTENCE DOCUMENT.--

          A. A person who allegedly has been a victim of domestic abuse may request the assistance of a local law enforcement agency.

          B. A local law enforcement officer responding to the request for assistance shall be required to take whatever steps are reasonably necessary to protect the victim from further domestic abuse, including:

                (1) advising the victim of the remedies available under the Family Violence Protection Act; the right to file a written statement, a criminal complaint and a request for an arrest warrant; and the availability of domestic violence shelters, medical care, counseling and other services;

                (2) upon the request of the victim, providing or arranging for transportation of the victim to a medical facility or place of shelter;

                (3) upon the request of the victim, accompanying the victim to the victim's residence to obtain the victim's clothing and personal effects required for immediate needs and the clothing and personal effects of any children then in the care of the victim;

                (4) upon the request of the victim, assist in placing the victim in possession of the dwelling or premises or otherwise assist in execution, enforcement or service of an order of protection;

                (5) following the procedures to determine the predominant aggressor pursuant to Section 31-1-7 NMSA 1978;

                [(5)] (6) arresting the alleged perpetrator when appropriate and including a written statement in the attendant police report to indicate that the arrest of the alleged perpetrator was, in whole or in part, premised upon probable cause to believe that the alleged perpetrator committed domestic abuse against the victim and, when appropriate, indicate that the party arrested was the predominant aggressor; and

                [(6)] (7) advising the victim when appropriate of the procedure for initiating proceedings under the Family Violence Protection Act or criminal proceedings and of the importance of preserving evidence.

          C. The jail or detention center shall make a reasonable attempt to notify the arresting law enforcement agency or officer when the alleged perpetrator is released from custody. The arresting law enforcement agency shall make a reasonable attempt to notify the victim that the alleged perpetrator is released from custody.

          D. Any law enforcement officer responding to a request for assistance under the Family Violence Protection Act is immune from civil liability to the extent allowed by law. Any jail, detention center or law enforcement agency that makes a reasonable attempt to provide notification that an alleged perpetrator is released from custody is immune from civil liability to the extent allowed by law.

          E. A statement shall be included in a judgment and sentence document to indicate when a conviction results from the commission of domestic abuse."

     SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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