45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO CONTROLLED SUBSTANCES; PROVIDING A CIVIL PENALTY FOR POSSESSION OF ONE OUNCE OR LESS OF MARIJUANA BY A PERSON EIGHTEEN YEARS OF AGE OR OLDER; PROVIDING CIVIL FINES; AUTHORIZING A COURT TO REFER A MINOR TO A DRUG COUNSELING PROGRAM; AMENDING AND ENACTING SECTIONS OF THE CONTROLLED SUBSTANCES ACT.

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

Section 1. A new section of the Controlled Substances Act is enacted to read:

"[NEW MATERIAL] POSSESSION OF ONE OUNCE OR LESS OF MARIJUANA BY A PERSON EIGHTEEN YEARS OF AGE OR OLDER--CITATION--CIVIL FINE--PROCEDURE.--

A. Upon an offense for possession of one ounce or less of marijuana by a person eighteen years of age or older, the arresting law enforcement officer shall offer the alleged offender the option of accepting a citation for a three hundred dollar ($300) civil fine or appearing in metropolitan or magistrate court within thirty days after issuance of the citation to contest it. The violator's signature on the citation constitutes an acknowledgment of guilt of the offense stated in the citation.

B. If an offender elects to sign the citation, payment of the civil fine shall be made by mailing the payment or tendering the payment in person within thirty days from the date of issuance of the citation to the metropolitan or magistrate court. Payment of the fine is timely if postmarked within thirty days from the date of issuance of the citation. When a fine is paid by currency, a receipt shall be immediately issued to the offender. When a fine is paid by check, the canceled check is a sufficient receipt.

C. If an alleged offender elects to contest the citation, he shall appear in metropolitan or magistrate court within thirty days after issuance of the citation to contest it. The citing law enforcement officer shall act as the plaintiff during the proceedings. The citing law enforcement officer shall be required to prove, by a preponderance of the evidence, that the alleged offender was in possession of one ounce or less of marijuana. If the court determines that the alleged offender is guilty of the civil offense of possession of one ounce or less of marijuana by a person eighteen years of age or older, the court shall impose a civil fine of three hundred dollars ($300) and may require the offender to pay court costs. When a fine is paid by currency, a receipt shall be immediately issued to the offender. When a fine is paid by check, the canceled check is a sufficient receipt.

D. The department of public safety shall prepare a citation, to be used by law enforcement officers, for the offense of possession of one ounce or less of marijuana by a person eighteen years of age or older. The department of public safety shall prepare a warning notice to be used by law enforcement officers when a citation is not issued.

E. A record of payment of a civil fine for possession of one ounce or less of marijuana by a person eighteen years of age or older is not admissible as evidence in a separate civil or criminal action; provided that the record may be used to determine if a person has a prior offense for possession of one ounce or less of marijuana by a person eighteen years of age or older.

F. If the civil fine is not paid within thirty days from the date of issuance of the citation, the offender may be punished for contempt by the presiding metropolitan or magistrate court, pursuant to he provisions of Sections 34-1-2 and 35-3-9 NMSA 1978.

G. A civil fine collected by a metropolitan court or a magistrate court pursuant to the provisions of this section shall be remitted to the state treasurer for deposit into the general fund."

Section 2. Section 30-31-23 NMSA 1978 (being Laws 1972, Chapter 84, Section 23, as amended by Laws 1990, Chapter 19, Section 5 and also by Laws 1990, Chapter 33, Section 1) is amended to read:

"30-31-23. CONTROLLED SUBSTANCES--POSSESSION PROHIBITED.--

A. It is unlawful for [any] a person intentionally to possess a controlled substance unless the substance was obtained pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or except as otherwise authorized by the Controlled Substances Act. It is unlawful for [any] a person intentionally to possess a controlled substance analog.

B. [Any] A person less than eighteen years of age who violates this section with respect to [(1)] one ounce or less of marijuana is, for the first offense, guilty of a petty misdemeanor and shall be punished by a fine of not less than fifty dollars ($50.00) or more than one hundred dollars ($100) and by imprisonment for not more than fifteen days, and, for the second and subsequent offenses, guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both. In addition to any punishment provided pursuant to the provisions of this subsection, the court may refer the offender to a drug counseling program administered by or approved by the department of health.

[(2)] C. A person who violates this section with respect to:

(1) more than one ounce and less than eight ounces of marijuana is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both; or

[(3)] (2) eight ounces or more of marijuana is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

[C.] D. Except for those substances listed in Subsection [D] E of this section, [any] a person who violates this section with respect to any amount of any controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a substance enumerated in Schedule I, II, III or IV is guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both.

[D. Any] E. A person who violates this section with respect to phencyclidine as enumerated in Schedule III or a controlled substance analog of phencyclidine; methamphetamine, its salts, isomers or salts of isomers as enumerated in Schedule II or a controlled substance analog of methamphetamine, its salts, isomers or salts of isomers; or a narcotic drug enumerated in Schedule I or II or a controlled substance analog of a narcotic drug enumerated in Schedule I or II is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

Section 3. EFFECTIVE DATE.--This effective date of the provisions of this act is July 1, 2001.