SENATE BILL 427

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Joseph Cervantes and Andrea Romero

AN ACT

RELATING TO CRIME; IMPOSING A MANDATORY WAITING PERIOD WHEN CONDUCTING SALES OF A FIREARM; PROVIDING PENALTIES.

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

     SECTION 1. Section 30-7-7.1 NMSA 1978 (being Laws 2019, Chapter 45, Section 1) is amended to read:

     "30-7-7.1. UNLAWFUL SALE OF A FIREARM WITHOUT A BACKGROUND CHECK OR BEFORE THE REQUIRED WAITING PERIOD IS COMPLETED.--

          A. Unlawful sale of a firearm without a background check consists of the sale of a firearm without conducting a federal instant background check, subject to the following:

                (1) if the buyer of a firearm is not a natural person, then each natural person who is authorized by the buyer to possess the firearm after the sale shall undergo a federal instant background check before taking possession of the firearm;

                (2) a prospective firearm seller who does not hold a current and valid federal firearms license issued pursuant to 18 U.S.C. Section 923(a) shall arrange for a person who does hold that license to conduct the federal instant background check. A federal firearms licensee shall not unreasonably refuse to perform a background check pursuant to this paragraph; and

                (3) a person who holds a current and valid federal firearms license issued pursuant to 18 U.S.C. Section 923(a) may charge a fee not to exceed thirty-five dollars ($35.00) for conducting a background check pursuant to this section.

          B. Unlawful sale of a firearm before the required waiting period is completed consists of a seller and buyer completing the sale of a firearm by transferring physical control of the firearm from the seller to the buyer at any time prior to 8:00 a.m. on the fourteenth day following the initiation of the federal instant background check. For purposes of this subsection, a seller includes the holder of a current and valid federal firearms license issued pursuant to 18 U.S.C. Section 923(a).

          C. Nothing in this section shall prevent the firearm from remaining in the custody of the seller or a person who holds a current and valid federal firearms license issued pursuant to 18 U.S.C. Section 923(a) during the imposed waiting period; provided that the federal firearms license holder may not transfer the firearm to the buyer prior to the expiration of the waiting period.

          D. Records of firearm sales shall be available for inspection by any law enforcement agency upon request between 9:00 a.m. and 5:00 p.m. on a weekday.

          [B.] E. The provisions of [Subsection] Subsections A and B of this section do not apply to the sale of a firearm:

                (1) by or to a person who holds a current and valid federal firearms license issued pursuant to 18 U.S.C. Section 923(a);

                (2) to a law enforcement agency;

                (3) between two law enforcement officers authorized to carry a firearm and certified pursuant to federal law or the Law Enforcement Training Act; [or]

                (4) between immediate family members; or

                (5) to any person who holds a valid New Mexico concealed carry license.

          [C.] F. As used in this section:

                (1) "consideration" means anything of value exchanged between the parties to a sale;

                (2) "federal instant background check" means a background check that meets the requirements of 18 U.S.C. Section 922(t) and that does not indicate that a sale to the person receiving the firearm would violate 18 U.S.C. Section 922(g) or 18 U.S.C. Section 922(n) or state law;

                (3) "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; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer; and includes any handgun, rifle or shotgun; but shall not include an antique firearm as defined in 18 U.S.C. Section 921(16), a powder-actuated tool or other device designed to be used for construction purposes, an emergency flare or a firearm in permanently inoperable condition;

                (4) "immediate family member" means a spouse, parent, child, sibling, grandparent, grandchild, great-grandchild, niece, nephew, first cousin, aunt or uncle; and

                (5) "sale" means the delivery or passing of ownership, possession or control of a firearm for a fee or other consideration, but does not include temporary possession or control of a firearm provided to a customer by the proprietor of a licensed business in the conduct of that business.

          [D.] G. Each party to an unlawful sale, including a federal firearms license holder, in violation of this section may be separately charged for the same sale.

          [E.] H. Each firearm sold contrary to the provisions of this section constitutes a separate offense under Subsection A of this section.

          [F.] I. Two or more offenses may be charged in the same complaint, information or indictment and shall be punished as separate offenses.

          [G.] J. Whoever violates the provisions of this section is guilty of a misdemeanor."

- 5 -