SENATE BILL 549
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Manny M. Aragon
FOR THE WELFARE REFORM OVERSIGHT COMMITTEE
AN ACT
RELATING TO DOMESTIC VIOLENCE; INCREASING PENALTIES FOR OFFENSES AGAINST HOUSEHOLD MEMBERS; IMPOSING AN INCREASED PENALTY FOR VIOLATION OF AN ORDER OF PROTECTION; PROVIDING FOR A FORTY-EIGHT-HOUR HOLD ON OFFENDERS WHO COMMIT AN OFFENSE PURSUANT TO THE CRIMES AGAINST HOUSEHOLD MEMBERS ACT OR THE FAMILY VIOLENCE PROTECTION ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-3-12 NMSA 1978 (being Laws 1995, Chapter 221, Section 3) is amended to read:
"30-3-12. ASSAULT AGAINST A HOUSEHOLD MEMBER.--
A. Assault against a household member consists of:
(1) an attempt to commit a battery against a household member; or
(2) any unlawful act, threat or menacing conduct that causes a household member to reasonably believe that he is in danger of receiving an immediate battery.
B. Whoever commits assault against a household member is [guilty of a petty misdemeanor]:
(1) upon a first conviction, guilty of a petty misdemeanor and the offender shall be sentenced pursuant to Section 31-19-1 NMSA 1978;
(2) upon a second conviction, guilty of a misdemeanor and the offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement; and
(3) upon a third or subsequent conviction, guilty of a misdemeanor and the offender shall be sentenced to a jail term of not less than one month that shall not be suspended, deferred or taken under advisement."
Section 2. Section 30-3-13 NMSA 1978 (being Laws 1995, Chapter 221, Section 4) is amended to read:
"30-3-13. AGGRAVATED ASSAULT AGAINST A HOUSEHOLD MEMBER.--
A. Aggravated assault against a household member consists of:
(1) unlawfully assaulting or striking at a household member with a deadly weapon; or
(2) willfully and intentionally assaulting a household member with intent to commit any felony.
B. Whoever commits aggravated assault against a household member is [guilty of a fourth degree felony]:
(1) upon a first conviction, guilty of a fourth degree felony and the offender shall be sentenced to a term of incarceration of eighteen months with not less than six months of the term of incarceration that shall not be suspended, deferred or taken under advisement;
(2) upon a second conviction, guilty of a fourth degree felony and the offender shall be sentenced to a term of incarceration of eighteen months with not less than one year of the term of incarceration that shall not be suspended, deferred or taken under advisement; and
(3) upon a third or subsequent conviction, guilty of a fourth degree felony and the offender shall be sentenced to a term of incarceration of not less than eighteen months that shall not be suspended, deferred or taken under advisement."
Section 3. Section 30-3-14 NMSA 1978 (being Laws 1995, Chapter 221, Section 5) is amended to read:
"30-3-14. ASSAULT AGAINST A HOUSEHOLD MEMBER WITH INTENT TO COMMIT A VIOLENT FELONY.--
A. Assault against a household member with intent to commit a violent felony consists of any person assaulting a household member with intent to kill or commit any murder, mayhem, criminal sexual penetration in the first, second or third degree, robbery, kidnapping, false imprisonment or burglary.
B. Whoever commits assault against a household member with intent to commit a violent felony is [guilty of a third degree felony]:
(1) upon a first conviction, guilty of a third degree felony and the offender shall be sentenced to a term of three years of incarceration with not less than one year of the term of incarceration that shall not be suspended, deferred or taken under advisement;
(2) upon a second conviction, guilty of a third degree felony and the offender shall be sentenced to three years of incarceration with not less than two years of the term of incarceration that shall not be suspended, deferred or taken under advisement; and
(3) upon a third or subsequent conviction, guilty of a third degree felony and the offender shall be sentenced to three years of incarceration that shall not be suspended, deferred or taken under advisement."
Section 4. Section 30-3-15 NMSA 1978 (being Laws 1995, Chapter 221, Section 6, as amended) is amended to read:
"30-3-15. BATTERY AGAINST A HOUSEHOLD MEMBER.--
A. Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.
B. Whoever commits battery against a household member is [guilty of a misdemeanor]:
(1) upon a first conviction, guilty of a misdemeanor and the offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement;
(2) upon a second conviction, guilty of a misdemeanor and the offender shall be sentenced to a jail term of not less than thirty consecutive days that shall not be suspended, deferred or taken under advisement; and
(3) upon a third or subsequent conviction, guilty of a fourth degree felony and the offender shall be sentenced to a term of incarceration of not less than six months that shall not be suspended, deferred or taken under advisement."
Section 5. Section 30-3-16 NMSA 1978 (being Laws 1995, Chapter 221, Section 7) is amended to read:
"30-3-16. AGGRAVATED BATTERY AGAINST A HOUSEHOLD MEMBER.--
A. Aggravated battery against a household member consists of the unlawful touching or application of force to the person of a household member with intent to injure that person or another.
B. Whoever commits aggravated battery against a household member by inflicting an injury to that person that is not likely to cause death or great bodily harm, but that does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is [guilty of a misdemeanor]:
(1) upon a first conviction, guilty of a misdemeanor and the offender shall be sentenced to a jail term of not less than ninety consecutive days that shall not be suspended, deferred or taken under advisement;
(2) upon a second conviction, guilty of a fourth degree felony and shall be sentenced to a term of incarceration of not less than one year that shall not be suspended, deferred or taken under advisement; and
(3) upon a third or subsequent conviction, guilty of a fourth degree felony and shall be sentenced to a term of incarceration of not less than eighteen months that shall not be suspended, deferred or taken under advisement.
C. Whoever commits aggravated battery against a household member by inflicting great bodily harm or doing so with a deadly weapon or doing so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony and upon conviction shall be sentenced to a term of incarceration of not less than three years that shall not be suspended, deferred or taken under advisement."
Section 6. A new section of the Crimes Against Household Members Act is enacted to read:
"[NEW MATERIAL] COUNSELING.--In addition to any other penalty provided in the Crimes Against Household Members Act, the court shall order a person convicted for the first time for violation of a criminal offense pursuant to the Crimes Against Household Members Act to participate in and complete a program of professional counseling at the person's own expense."
Section 7. A new section of the Crimes Against Household Members Act is enacted to read:
"[NEW MATERIAL] FORTY-EIGHT-HOUR HOLD FOLLOWING ARREST.--
Following an arrest for an offense pursuant to the Crimes Against Household Members Act, the offender shall be held for a period of not less than forty-eight hours following the offender's arrest. The offender shall be given a bail hearing, in accordance with the provisions of Article 2, Section 13 of the constitution of New Mexico and shall be eligible for bail following the forty-eight-hour hold period."
Section 8. Section 40-13-6 NMSA 1978 (being Laws 1987, Chapter 286, Section 6, as amended) is amended to read:
"40-13-6. SERVICE OF ORDER--DURATION--PENALTY--REMEDIES NOT EXCLUSIVE.--
A. An order of protection granted under the Family Violence Protection Act shall be filed with the clerk of the court, and a copy shall be sent by the clerk to the local law enforcement agency. The order shall be personally served upon the respondent, unless [he] the respondent or [his] the respondent's attorney was present at the time the order was issued. The order shall be filed and served without cost to the petitioner.
B. An order of protection granted by the court involving custody or support shall be effective for a fixed period of time not to exceed six months. The order may be extended for good cause upon motion of the petitioner for an additional period of time not to exceed six months. Injunctive orders shall continue until modified or rescinded upon motion by either party or until the court approves a subsequent consent agreement entered into by the petitioner and the respondent.
C. A peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order pursuant to this section.
D. State courts shall give full faith and credit to tribal court orders of protection and orders of protection issued by courts of other states. A protection order issued by a state or tribal court against one who has petitioned, filed a complaint or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if:
(1) no cross or counter petition, complaint or other written pleading was filed seeking such a protection order; or
(2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.
E. A person convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a [second or subsequent]:
(1) first conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement;
(2) second conviction, the offender shall be sentenced to a jail term of not less than thirty consecutive days that shall not be suspended, deferred or taken under advisement; and
(3) third conviction, the offender shall be sentenced to a jail term of not less than sixty consecutive days that shall not be suspended, deferred or taken under advisement.
F. In addition to any other [punishment] penalty provided in the Family Violence Protection Act, the court shall order a person convicted to make full restitution to the party injured by the violation of an order of protection and order the person convicted to participate in and complete a program of professional counseling, at [his] the person's own expense, if possible.
G. In addition to charging the person with violating an order of protection, a peace officer shall file all other possible criminal charges arising from an incident of domestic abuse when probable cause exists.
H. The remedies provided in the Family Violence Protection Act are in addition to any other civil or criminal remedy available to the petitioner."
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