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SPONSOR: |
Carraro |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Child Endangerment |
SB |
532 |
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ANALYST: |
Fox-Young |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
|
|
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|
|
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$0.1 Significant |
Recurring |
General
Fund |
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|
|
|
|
|
|
|
|
|
|
|
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Corrections
Department (CD)
Association of
District Attorneys (AODA)
Department of Public
Safety (DPS)
Attorney General (AG)
Department of Health (DOH)
State Highway and Transportation Department
(SHTD)
Public
Defender Department (PDD)
SUMMARY
Synopsis
of Bill
Senate Bill 532 enacts a new section in Chapter 30, Article 6 of NMSA 1978, creating the crime of “Child Endangerment.” Chili endangerment consists of violating the provisions of Section 66-8-102, the DWI statute, while “transporting a child in a motor vehicle.”
Penalties for child endangerment are as follows:
A third-degree felony when there is no injury to the child,
A second-degree felony when the child is injured and
A first-degree felony when there is great bodily harm or the child dies.
Significant
Issues
The Attorney General (AG)
notes that the bill addresses circumstances that might otherwise be charged
under the child abuse statute, NMSA 1978, §
AG reports that currently, a person convicted of child abuse for a second offense, with or without injury, is guilty of a second-degree felony. A second offense of child endangerment where there is no injury would remain a third-degree felony.
AG notes that the bill
raises the issue of whether a defendant may be charged with both a DWI offense
and child endangerment. AG reports that
state appellate courts have identified double jeopardy problems in cases where
prosecutors have attempted to charge more than one offense in circumstances
involving driving while intoxicated and vehicular deaths of children. (AG references State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d
1203) In order to determine whether more
than one offense may be charged in situations involving “unitary conduct,” our
state’s appellate courts look to the “legislative intent.” (AG references Swafford v. State,
112 N.M. 3, 810 P.2d 1223 (1991))
AG notes the bill is
silent as to whether it’s provisions are intended to
preempt other potential crimes arising from unitary conduct, such as vehicular
homicide or child abuse.
The New Mexico Court
of Appeals has held that the Legislature intends the vehicular homicide statute
(NMSA 1978, §66-8-101) to be the applicable statute governing child abuse
resulting in death, where the death is caused by the operation of a vehicle
while the driver was intoxicated. (State v. Santillanes). As a result, case law dictates that the death
of a child killed in a vehicle driven by an intoxicated offender may not
currently be addressed as anything greater than a third-degree felony. By contrast, other forms of child abuse
resulting in death are currently defined as first-degree felonies under NMSA
1978, §
FISCAL IMPLICATIONS
Because the bill is likely to increase the felony caseload significantly, the courts, district attorneys, PDD and the AG will likely see a significant increase in costs.
AG indicates that the
bill will likely prompt an increase in the appellate caseload, increasing costs
for PDD, courts and the AG.
Corrections Department (CD) will likely see a
significant increase in costs, as the prison population and the numbers of
offenders under supervision in probation and parole programs is likely to
increase. CD notes that because second and third degree
felonies generally require longer prison sentences, the additional costs of
incarceration are greater and will persist for many years.
TECHNICAL ISSUES
The Administrative Office of the District
Attorneys (AODA) notes that “child” is not defined in the bill.
AG notes that it is not clear whether “injury”
refers only to physical injury or to all types of injury a child might
suffer. AG notes that there may be
issues at trial as to whether a DWI offender has been the cause of injury,
great bodily harm, or death.
AODA suggests amending the bill to include the
following definitions:
“child” means a person
who is less than eighteen years of age;
and
“injury” means an
injury that causes painful, temporary disfigurement or temporary loss or impairment
of the functions of any member or organ of the child’s body or causes great
bodily harm or is likely to cause great bodily harm or death.”
As an alternative to the provisions in the bill,
AG suggests amending other existing statutes to evince a legislative intent to
apply a first-degree felony penalty when a child is killed in a vehicle driven
by a DWI offender. Alternatively, the
Legislature could amend the child abuse statute to limit the proof necessary to
establish abuse in DWI situations.
There are no
provisions that the offender be cognizant of the child’s presence in the
vehicle at the time of driving.
JFY/yr