HOUSE FLOOR SUBSTITUTE FOR

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE REGULATORY AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 72

52nd legislature - STATE OF NEW MEXICO - second session, 2016

AN ACT

RELATING TO YOUTHFUL OFFENDERS; ALLOWING THE USE OF THE JUVENILE DISPOSITION AND EVIDENCE GIVEN IN A HEARING IN COURT FOR A YOUTHFUL OFFENDER WHEN CONSIDERING CONDITIONS OF RELEASE OR AN ALTERATION OF A BASIC SENTENCE FOR A CRIME.

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

     SECTION 1. A new section of the Criminal Procedure Act is enacted to read:

     "[NEW MATERIAL] REVIEW OF YOUTHFUL OFFENDER RECORDS.--Notwithstanding any other provision of law, when considering the setting of bail or other conditions of release of a person charged with an offense, the juvenile disposition of a youthful offender and any evidence given in a hearing in court for a youthful offender may be considered. The juvenile disposition and evidence used pursuant to this section may be considered only if the person is thirty years old or younger."

     SECTION 2. 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.

          B. Notwithstanding the provisions of Subsection A of this section, the juvenile disposition of a youthful offender and any evidence given in a hearing in court for a youthful offender may be considered when a judge sentences a person or imposes a period of parole pursuant to Section 31-18-15 NMSA 1978 or may be presented during a hearing to consider whether to alter a basic sentence for a crime pursuant to Section 31-18-15.1 NMSA 1978. If a judge considers the juvenile disposition of a youthful offender or evidence given in a hearing for the youthful offender pursuant to this subsection, the disposition and evidence shall be considered confidential and shall be reviewed or discussed in camera. All evidence, motions or other documents or evidence pertaining to the juvenile disposition shall be sealed, unless otherwise considered not to be confidential by law.

          [B.] C. 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.] D. 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 3. 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 when considering the setting of bail or other conditions of release of a person charged with an offense whether charged as an adult or a juvenile. The court also may set aside a sealing order when rendering a sentence after a conviction.

          [F.] 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.

          [G.] 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 when considering the setting of bail or other conditions of release of a person charged with an offense, whether charged as an adult or juvenile, and when rendering a sentence after a conviction.

          [H.] 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.

          [I.] 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."

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