Fiscal impact
reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for
standing finance committees of the NM Legislature. The LFC does not assume
responsibility for the accuracy of these reports if they are used for other
purposes.
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in
SPONSOR |
Cravens |
DATE TYPED |
|
HB |
|
||
SHORT
TITLE |
Create Offense of Child Endangerment |
SB |
448 |
||||
|
ANALYST |
Maloy |
|||||
APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY04 |
FY05 |
FY04 |
FY05 |
||
|
NFI |
|
See Narrative |
Recurring |
General
Fund |
|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
SB 448 duplicates HB 490.
Conflicts with HB 316.
LFC Files
Responses
Received From
Children,
Youth and Families Department
Public
Defenders’ Department
Office
of the Attorney General
Administrative
Offices of the Courts
SUMMARY
Synopsis of Bill
Senate Bill 448
creates a new category for the crime of “child endangerment”. The bill adds transporting a child in a motor
vehicle while under the influence of intoxicating liquor or drugs to the definition
of the crime “child endangerment”.
Thereafter, the bill
establishes a degree of offense scale:
· Where
there is no harm to the child, the offender is guilty of a third degree felony.
· Where
there is injury to a child, the offender is guilty of a second degree felony.
· Where
there is great bodily harm to a child, the offender is guilty of a first degree
felony.
The bill also provides
that any person charged with this offense who has had a prior DWI conviction in
the preceding 10 years shall have his basic sentence increased by two years for
each prior DWI conviction.
The bill states that
sentences imposed pursuant to prior DWI convictions shall not be suspended or
deferred.
The bill defines
“prior DWI conviction” as including not only a
Significant Issues
The
Public Defenders’ Department offers:
·
Injury” for purposes of the second degree
felony has no definition. If a child suffers
a scratch or bruise, is that an injury?
How big must the scratch or bruise be?
The definition of “great bodily harm” will be taken from NMSA 1978 section
The Children, Youth and Families
Department notes:
·
The
New Mexico Court of Appeals has already determined that a person who drives
while intoxicated with a child in the car can be charged with child abuse. It was also determined by the Court of
Appeals, however, that each DWI incident could only result in one conviction
for child abuse regardless of the number of children in the car because driving
while intoxicated is a single act. It is
an open question whether the present bill could allow for multiple convictions
child endangerment if there is more than one child in the car. An amendment to the bill stating that each
child in a car is a separate offense under the provisions of the bill would
clearly indicate to the judiciary that multiple charges and punishments are
intended. In any event, this bill would
allow for an increase of two years for each prior DWI conviction that would not
be available for a conviction under Section
The Office of the
Attorney General states:
·
This bill makes the distinction that each victim—“a
child” – is protected irrespective of injury or other consequences. This bill would effectively overrule State
v. Castaneda, 2001-NMCA-052, 130 N.M. 679, 30 P.3d 368 (intoxicated mother
was prosecuted with one count of child abuse for each of four children in the
car she was driving; no injuries sustained; if no child is injured and more
than one child is in the vehicle, only one count of child abuse may be
prosecuted).
·
The bill provides for a range of punishments
involving DWI and transportation of a child or children, depending on the
severity of the harm caused to the child/children. Such a distinction is well advised.
·
The definition of “child” should be included. For example, “Any person under the age of
eighteen years.”
·
This bill conflicts with the proposed amendments to
Section 66-8-102 included in Senate Bill 144/207/SJCS, and House Bill 94/HJCS,
involving the commission of a DWI with a passenger or passengers under the age
of eighteen. These two bills provide
that this circumstance—a child in the vehicle during a DWI—is defined only as
an aggravated DWI and provides for much lower penalties than provided in Senate
Bill 448. Unlike Senate Bill 448, no
consideration of possible injury or death is included in these two bills.
·
Assuming three possible laws may apply to a set of
circumstances, i.e. Section 66-8-102(D)(4), as proposed in both Senate Bill
144/207/SJC and House Bill 94/HJC is enacted, Section
Aggravated
DWI Misdemeanor, first offense,
90 days,
Child
endangerment First, second or third
degree felony (depending on injury), and
Child abuse First, second or third degree (depending on
injury).
·
A “prior DWI conviction” should take into account
any difference in the wording or language used to describe a comparable offense
in a jurisdiction other than
FISCAL IMPLICATIONS
There is no appropriation
contained in this bill. There will be
slight administrative cost increases for the Children, Youth and Families
Department as it works to address the “endangered” child’s needs through the
protective services program. Also, law
enforcement and legal entities, including the courts, public defenders and district attorneys, will
likely see an increase in case loads.
Because of the enhanced sentences and the potential risk of losing a
child to state custody, offenders will be less likely to accept plea bargains,
and convictions will be more frequently appealed.
CONFLICT AND RELATIONSHIP
The
Office of the Attorney General notes:
·
Conflicts
with House Bill 94/HJCS, involving the crime of aggravated DWI if a passenger
or passengers is/are under the age of eighteen.
·
Conflicts
with Senate Bill 144/207/SJCS, involving the crime of aggravated DWI if a passenger
or passengers is/are under the age of eighteen.
·
Possible
conflict with Section
The Public Defenders’ Department notes:
·
The child abuse statute, NMSA 1978,
section
·
HB 316 makes driving while intoxicated
with a child under 18 an aggravated DWI.
OTHER SUBSTANTIVE ISSUES
·
Conceivably, an 18-year-old intoxicated
driver could be charged with child endangerment (up to a first degree felony level)
is a 17-year-old passenger was seriously injured in an automobile accident,
even if the 17-year-old participated in the drinking / intoxication.
This
is likely beyond the intended bill objective.
ALTERNATIVE
The Office of the
Attorney General notes:
·
The
only law applicable would be the child abuse statute, Section 30-601, and if, enacted,
the aggravated DWI provision that addresses the situation when a child is in
the vehicle and a DWI is committed.
Also, the holding in State v. Castaneda would remain law, and
failing to allow a separate prosecution for child abuse for each child in a
vehicle.
SJM/dm:yr