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F I S C A L I M P A C T R E P O R T

SPONSOR Cervantes

DATE TYPED 03/15/05 HB 906/aHJC

SHORT TITLE Use of Property for Making Methamphetamine

SB

ANALYST McSherry

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

Recurring General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to HB 825 and HB 110 which propose to amend the Controlled Substance Act with re-

gard to measures dealing with Methamphetamine.

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Administrative Office of the District Attorneys (AODA)

Corrections Department (CD)

Public Defender (PD)

Administrative Office of the Courts (AOC)

Public Education Department (PED)

Regulations and Licensing Department (RLD)

SUMMARY

Synopsis of House Judiciary Committee Amendment

The first amendment provides that a person who knowingly maintains, manages, controls, owns,

rents, leases or makes available for use any building, room, dwelling, rental, store, warehouse,

trailer, vehicle, watercraft, aircraft, enclosure or other structure or place that is used for the

unlawful manufacture of methamphetamine would be guilty of a fourth, rather than the originally

proposed third, degree felony.

The second amendment provides that a person who violates the above within a drug-free school

zone guilty of a third, rather than the originally proposed second, degree felony.

House Bill 906/aHJC -- Page 2

The third amendment removes the proposed provision which provided immunity if a person in

violation of the above notifies a law enforcement agency within the jurisdiction of the unlawful

manufacture of methamphetamine.

Synopsis of Original Bill

House Bill 906 proposes to create a new second degree felony, “Use of Property for the Manu-

facture of Methamphetamine,” which would be punishable by up to three years in prison. The

new crime would be a third degree felony if within a drug-free school zone and punishable by up

to nine years in prison. The bill would make it illegal to knowingly maintain, own, rent, lease,

etc. any room, vehicle, dwelling, etc. for the unlawful manufacture of methamphetamine.

The Use of Property for the Manufacture of Methamphetamine would be enforceable against a

person who “knowingly” maintains, manages, rents, or leases property that is used for the manu-

facture of methamphetamine.”

Significant Issues

AODA points out that present law makes it illegal to manufacture methamphetamine (meth) and

that this new law will make it illegal to use property to manufacture meth as it is necessary to

have a laboratory to do so. AODA reports that the meth manufacturing process requires hazard-

ous and volatile chemicals that make the process dangerous to occupants/users of property and to

those in the vicinity; mobile labs pose serious threats to the safety of other motorists and officers.

This law will not prevent the prosecution of a violator under other provisions of law. Therefore a

person could be prosecuted for manufacturing meth and also for using property to manufacture

meth. According to CD, this provision would be a helpful tool for law enforcement.

According to CD, there have been an increasing number of methamphetamine manufacturing in

motor vehicles manufacturing cases in recent years with no indications that numbers will not

continue to increase. The Department reports that a great majority of parties who manufacture

methamphetamines maintain, own, or rent the dwelling, vehicle, or room they use to manufac-

ture methamphetamines and could be convicted under the proposed law; the department predicts

that the proposed legislation would significantly increase the amount of time methamphetamine

manufacturers would be incarcerated and on probation and parole.

PERFORMANCE IMPLICATIONS

This will result in more cases being referred to the District Attorneys for prosecution and addi-

tional cases in the courts, and corrections system.

FISCAL IMPLICATIONS

There is no appropriation in the bill.

Increase costs would likely be incurred by CD, AOC, PD and AODA as a result from the new

crime. Enactment of this law could result in increased prosecutions, court cases, and facilities’

use costs.

House Bill 906/aHJC -- Page 3

ADMINISTRATIVE IMPLICATIONS

In both the short and long term, this bill will minimally to moderately increase the administrative

burden on courts, DAs, prison and probation/parole staff because of the increasing prison popu-

lation and probation/parole caseloads.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

House Bill 906 relates to both HB 825 and HB 110, which each propose to amend the Controlled

Substance Act with regard to Methamphetamine.

TECHNICAL ISSUES

The Office of the Attorney General asserts that, although prosecution for manufacturing meth

and using property to manufacture meth would not be double jeopardy, it could be argued that

the sentences would merge because of unitary conduct. Section 30-31-20, NMSA 1978, penal-

izes the process of manufacturing meth and this proposed law penalizes the use of property to

manufacture meth. AGO predicts that the proposed existence of two distinct statutes should be

sufficient to avoid a double jeopardy or merger problem as the new law does not require that

meth actually be produced, but prohibits the separate action of using property to manufacture.

AGO references State v. Andazola.

OTHER SUBSTANTIVE ISSUES

The proposed bill’s language in subsections A and C may result in challenges due to vagueness,

according to AGO, in that terms such as “place” are not defined and how one must notify or

when one must notify law enforcement is not specified.

Although subsection E provides that the new provision does not preclude prosecutions under

other “provisions of law” it doesn’t address civil or administrative remedies.

AGO suggests adding:

1. language that the bill would not foreclose or bar other civil or administrative

remedies may be beneficial to the intent of this bill, given that forfeiture and environmental is-

sues and administrative provisions of the pharmacy board.

2. a provision for the bill to take effect immediately might well serve the public’s

health safety and welfare given the magnitude and gravity of the methamphetamine problem.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

There will be no criminal consequences for owning and/or making available property to manu-

facture methamphetamines.

EM/yr:lg