HB0068JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 68

55th legislature - STATE OF NEW MEXICO - second session, 2022

AN ACT

RELATING TO PUBLIC SAFETY; CREATING THE CRIME OF CRIMINAL THREAT; CLARIFYING EXCEPTIONS FOR UNLAWFUL POSSESSION OF A HANDGUN BY A PERSON; CLARIFYING THE PENALTY FOR RECEIPT, TRANSPORTATION OR POSSESSION OF A FIREARM OR DESTRUCTIVE DEVICE BY A SERIOUS VIOLENT FELON; ADDING PENALTIES FOR AGGRAVATED FLEEING A LAW ENFORCEMENT OFFICER; PROVIDING FOR A SENTENCING ENHANCEMENT WHEN A FIREARM IS POSSESSED OR USED DURING THE COMMISSION OF A DRUG TRANSACTION OR SERIOUS VIOLENT OFFENSE; CLARIFYING THAT A FIREARM POSSESSED OR USED DURING THE COMMISSION OF A DRUG TRANSACTION OR SERIOUS VIOLENT OFFENSE MAY BE SEIZED.

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

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

"[NEW MATERIAL] CRIMINAL THREAT--PENALTY.--

A. A criminal threat consists of a statement or other form of expression made for the purpose of causing or in reckless disregard of the risk of causing the evacuation, lockdown or disruption of regular, ongoing activities at a public or non-public preschool, school or institution of higher learning, an occupied dwelling, a place of business or public building, a place of assembly or a facility or vehicle of public transportation and communicating an intent to:

(1) inflict unlawful physical injury against a person;

(2) cause unlawful damage to property of another; or

(3) commit any other unlawful act of violence.

B. Whoever commits a criminal threat is guilty of a fourth degree felony.

C. If a criminal threat results in the evacuation, lockdown or disruption of regular, ongoing activities at a public or non-public preschool, school or institution of higher learning, an occupied dwelling, place of business or public building, a place of assembly or a public transportation facility or vehicle, the court, in its discretion, may order a

person convicted for the offense of criminal threat to reimburse any person, business, nonprofit organization or public agency for economic harm caused by that offense.

D. As used in this section, "economic harm" means any direct, incidental or consequential financial damage caused by a criminal threat and includes:

(1) wages, salaries or other compensation that was lost as a result of the commission of the offense;

(2) the cost of all wages, salaries or other compensation for the time that employees were prevented from working as a result of the commission of the crime; and

(3) overhead costs incurred for any period of evacuation or lockdown.

E. Nothing in this section shall be construed to limit a court's authority to order that restitution be paid to a victim of the offense pursuant to other provisions of law."

SECTION 2. Section 30-7-2.2 NMSA 1978 (being Laws 1994, Chapter 22, Section 2) is amended to read:

"30-7-2.2. UNLAWFUL POSSESSION OF A HANDGUN BY A PERSON--EXCEPTIONS--PENALTY.--

A. Unlawful possession of a handgun by a person consists of a person knowingly having a handgun in [his] the person's possession or knowingly transporting a handgun, except when the person is:

(1) in attendance at a hunter's safety course or [a] handgun safety course or participating in a lawful shooting activity;

(2) engaging in the use of a handgun for target shooting at an established range authorized by the governing body of the jurisdiction in which the range is located or in an area where the discharge of a handgun without legal justification is not prohibited by law;

(3) engaging in an organized competition involving the use of a handgun;

(4) participating in or practicing for a performance by an organization that has been granted exemption from federal income tax by the United States commissioner of internal revenue as an organization described in Section 501(c)(3) of the United States Internal Revenue Code of [1954] 1986, as amended or renumbered;

(5) engaging in legal hunting or trapping activities;

(6) traveling, with an unloaded handgun in [his] the person's possession, to or from an activity described in Paragraph (1), (2), (3), (4) or (5) of this subsection; or

(7) on real property under the control of the person's parent, grandparent or legal guardian and the person is being supervised by [his] a parent, grandparent or legal guardian.

B. A person who commits unlawful possession of a handgun by a person is guilty of a misdemeanor.

C. As used in this section:

(1) "person" means an individual who is less than nineteen years old; and

(2) "handgun" means a loaded or unloaded pistol, revolver or firearm [which] that will or is designed to or may readily be converted to expel a projectile by the action of an explosion and the barrel length of which, not including a revolving, detachable or magazine breech, does not exceed twelve inches."

SECTION 3. Section 30-7-16 NMSA 1978 (being Laws 1981, Chapter 225, Section 1, as amended) is amended to read:

"30-7-16. FIREARMS OR DESTRUCTIVE DEVICES--RECEIPT, TRANSPORTATION OR POSSESSION BY CERTAIN PERSONS--PENALTY.--

A. It is unlawful for the following persons to receive, transport or possess a firearm or destructive device in this state:

(1) a felon;

(2) a person subject to an order of protection pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978; or

(3) a person convicted of any of the following crimes:

(a) battery against a household member pursuant to Section 30-3-15 NMSA 1978;

(b) criminal damage to property of a household member pursuant to Section 30-3-18 NMSA 1978;

(d) a crime listed in 18 U.S.C. 921.

B. A felon found in possession of a firearm shall be guilty of a third degree felony [and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act].

C. A serious violent felon that is found to be in possession of a firearm shall be guilty of a second degree felony.

[C.] D. Any person subject to an order of protection pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978 or convicted of a crime listed in Paragraph (3) of Subsection A of this section who receives, transports or possesses a firearm or destructive device is guilty of a misdemeanor.

[D.] E. As used in this section:

(1) except as provided in Paragraph (2) of this subsection, "destructive device" means:

(a) any explosive, incendiary or poison gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge of more than four ounces; 4) missile having an explosive or incendiary charge of more than one-fourth ounce; 5) mine; or 6) similar device;

(b) any type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that is generally recognized as particularly suitable for sporting purposes; or

(c) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in this paragraph and from which a destructive device may be readily assembled;

(2) the term "destructive device" does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device;

(3) "felon" means a person convicted of a felony offense by a court of the United States or of any state or political subdivision thereof and:

(a) less than ten years have passed since the person completed serving a sentence or period of probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for the felony conviction by the proper authority; and

(4) "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon; and

(5) "serious violent felon" means a person convicted of an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or an equivalent offense under the laws of the United States or of any state or an offense found to be a serious violent offense pursuant to the provisions of Subparagraph (o) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978; provided that:

(a) less than ten years have passed since the person completed serving a sentence or a period of probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for the felony conviction by the proper authority; and

(c) the person has not received a deferred sentence and completed the total term of deferment as provided in Section 31-20-9 NMSA 1978."

SECTION 4. Section 30-22-1.1 NMSA 1978 (being Laws 2003, Chapter 260, Section 5) is amended to read:

"30-22-1.1. AGGRAVATED FLEEING A LAW ENFORCEMENT OFFICER.--

A. Aggravated fleeing a law enforcement officer consists of a person willfully and carelessly driving [his] a vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an [appropriately marked law enforcement vehicle] authorized emergency vehicle pursuant to Section 66-7-6 NMSA 1978

in pursuit in accordance with the provisions of the Law Enforcement Safe Pursuit Act.

B. Whoever commits aggravated fleeing a law enforcement officer that does not result in injury or great bodily harm to another person is guilty of a fourth degree felony.

C. Whoever commits aggravated fleeing a law enforcement officer that results in injury to another person is guilty of a third degree felony.

D. Whoever commits aggravated fleeing a law enforcement officer that results in great bodily harm to another person is guilty of a second degree felony."

SECTION 5. Section 31-18-16 NMSA 1978 (being Laws 1977, Chapter 216, Section 5, as amended) is amended to read:

"31-18-16. POSSESSION, USE, BRANDISHING OR DISCHARGE OF FIREARM--ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL LIMITED.--

A. When a separate finding of fact by the court or jury shows that a firearm was possessed or used in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by one year.

[A.] B. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by three years, except that when the offender is a serious youthful offender or a youthful offender that received an adult sentence, the sentence imposed by this subsection may be increased by one year.

C. When a separate finding of fact by the court or jury shows that a firearm was discharged in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by three years.

[B.] D. For a [second or subsequent noncapital felony in which a firearm is brandished] separate offense resulting in a second or subsequent finding of fact by the court or jury of possession, use, brandishing or discharge of a firearm in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the [basic] sentence [of imprisonment prescribed in Section 31-18-15 NMSA 1978] shall be increased by [five] three years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by three years.

[C.] E. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was possessed, used, brandished [in the commission of the offense] or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court [and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense], the court shall decide the issue and shall make a separate finding of fact thereon.

F. When a separate finding of fact by the court or jury shows that a firearm was possessed, used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the firearm is subject to seizure and forfeiture as an instrumentality pursuant to the provisions of the Forfeiture Act.

[D.] G. As used in this section:

(1) "brandished" means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person;

(2) "in relation to a drug transaction" means participating or attempting to participate in the trafficking of a controlled substance pursuant to Section 30-31-20 NMSA 1978, distribution of a controlled substance to a minor pursuant to Section 30-31-21 NMSA 1978 or distribution of a controlled or counterfeit substance pursuant to Section 30-31-22 NMSA 1978 as a seller, purported seller, buyer, purported buyer or as an accomplice; and

(3) "serious violent offense" means an offense enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978."

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