SENATE BILL 189

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

INTRODUCED BY

Linda M. Lopez and Mark Moores

AN ACT

RELATING TO PRETRIAL RELEASE; ESTABLISHING WHEN A REBUTTABLE PRESUMPTION ARISES THAT A PERSON IS DANGEROUS TO ANY OTHER PERSON OR TO THE COMMUNITY AND NO RELEASE CONDITIONS WILL REASONABLY PROTECT THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY; CONFIRMING THE PROSECUTING AUTHORITY'S BURDEN OF PROOF IN PRETRIAL DETENTION HEARINGS; DECLARING AN EMERGENCY.

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

     SECTION 1. A new section of Chapter 31, Article 3 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] REBUTTABLE PRESUMPTION AGAINST RELEASE.--

          A. Subject to rebuttal by the defendant in a pretrial detention hearing requested by a prosecuting authority, evidence or offers of proof establishing probable cause for any of the following felony offenses for which a defendant is charged shall be deemed prima facie proof that the defendant is a danger to any other person or to the community and that no release conditions will reasonably protect the safety of any other person or the community:

                (1) any of the following serious violent felony offenses:

                     (a) murder in the first degree;

                     (b) first or second degree felony human trafficking of a child;

                     (c) first degree felony abuse of a child;

                     (d) sexual exploitation of a child constituting at least a second degree felony; or

                     (e) a serious violent felony offense as provided in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978;

                (2) a felony offense during which a firearm was brandished pursuant to Section 31-18-16 NMSA 1978 or during which a firearm was discharged; or

                (3) a felony offense during which great bodily harm was inflicted as defined in Section 30-1-12 NMSA 1978 or that caused the death of a person.

          B. Subject to rebuttal by the defendant in a pretrial detention hearing requested by a prosecuting authority, it shall be presumed that the defendant is a danger to any other person or to the community and that no release condition will reasonably protect the safety of any other person or the community if the court finds that there is probable cause to believe that the defendant committed a new felony offense that prompted the detention hearing:

                (1) while pending trial or sentencing for an offense listed in Paragraphs (1) through (3) of Subsection A of this section;

                (2) while on probation, parole or any other post-conviction supervision for an offense listed in Paragraphs (1) through (3) of Subsection A of this section; or

                (3) within five years of having been convicted of an offense listed in Paragraphs (1) through (3) of Subsection A of this section.

          C. If the court rules that the presumption in Subsection A or B of this section applies to a defendant, the court shall evaluate whether the prosecuting authority has satisfied its burden to prove by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community by evaluating any factors established by rules approved by the New Mexico supreme court for pretrial detention, including:

                (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence;

                (2) the weight of the evidence against the defendant;

                (3) the history and characteristics of the defendant;

                (4) the nature and seriousness of the danger to any person or to the community that would be posed by the defendant's release;

                (5) any facts tending to indicate that the defendant may or may not commit new crimes if released;

                (6) whether the defendant has been ordered detained under Article 2, Section 13 of the constitution of New Mexico based on a finding of dangerousness in another pending case or was ordered detained based on a finding of dangerousness in any prior case; and

                (7) any available results of a pretrial risk assessment instrument approved by the New Mexico supreme court for use in the jurisdiction; provided that the court shall not defer to the recommendation in the instrument but shall make an independent determination of dangerousness and community safety based on all information available at the hearing.

          D. Nothing in this section shall be deemed to shift the burden of proof to the defendant that the defendant is not a danger to any other person or to the community and that there are no release conditions that will reasonably protect the safety of any other person or the community. The burden of proof rests with the prosecuting authority.

          E. For the purposes of this section, "firearm" means any weapon that will, is designed to or may readily be converted to expel a projectile by the action of an explosive."

     SECTION 2. APPLICABILITY.--The provisions of this act apply to charges first filed against defendants on or after the effective date of this act.

     SECTION 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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