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

SPONSOR Beffort

DATE TYPED 2/20/05

HB

SHORT TITLE Domestic Violence Arrests within 24 hours

SB 315/aSPAC

ANALYST Wilson

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

Commission on the Status of Women (CSW)

Department of Public Safety (DPS)

Synopsis of SPAC Amendment

The Senate Public Affairs Committees amendment to SB 315 deletes the requirement that an ar-

rest under the provisions of this bill must be made within 24 hours. The amendment also

expands the original bill and allows an officer who responds to make an arrest instead of requir-

ing that the officer be at the scene. In addition the amendment adds that there must be exigent

circumstances to support making an arrest.

Synopsis of Original Bill

Senate Bill 315 amends §31-1-7 NMSA 1978 and gives an officer more flexibility to arrest a

person without a warrant when there has been a domestic disturbance. Under current law, an of-

ficer may only arrest a person without a warrant when that person is present at the scene of the

domestic disturbance.

This bill allows the officer to arrest a person without a warrant within 24 hours of arriving at the

scene of the domestic disturbance when that person is not present at the scene and the officer has

probable cause to believe that person has committed an assault or battery on a household mem-

ber.

Senate Bill 315/aSPAC -- Page 2

Significant Issues

This bill gives law enforcement officers more flexibility. If the alleged perpetrator has left the

scene of the domestic disturbance, the officer may arrest that person at another location without

first obtaining an arrest warrant. The officer will not be delayed waiting for an arrest warrant.

Giving arresting officers more flexibility and shortening the time until arrest makes an arrest

more likely. This change may increase the number of domestic violence related criminal cases

that are filed in the state courts.

The CSW believes this provision in the law will save peace officers time and effort in obtaining

a warrant on an individual who could potentially cause fatal harm to a victim of domestic abuse

if that person were not in custody.

The AGO provided the following:

As background, traditionally, the authority of the police to arrest someone without a war-

rant for commission of misdemeanor crimes has been limited by the “in the presence” re-

quirement. In order for the police to make an arrest without a warrant on a misdemeanor

crime, the crime must have been committed in the officer’s presence. The purpose of an

in presence requirement is to prevent warrantless arrests based on information from third

parties. The “in the presence” requirement also reduces the risk of an erroneous arrest on

crimes generally viewed as lacking in sufficient violence, or are of a non-serious nature.

The New Mexico legislature recognized domestic violence as a serious societal problem

in this state, and in dealing with this problem, law enforcement must be afforded addi-

tional tools by which to quickly and effectively defuse and resolve the situation. Before

its enactment, obtaining a warrant required law enforcement to leave the scene to prepare

the document and secure judicial approval. Unless the victim was transported to another

location, they may well have been left in the presence of the perpetrator, posing a poten-

tially dangerous opportunity for further violence.

As many offenders leave the scene to avoid immediate arrest, law enforcement agencies

interpreting current law as prohibiting an arrest unless the suspect is at the scene when

the officers arrive, place victims in a dangerous situation. In reality, few officers will

ever seek a warrant for a crime involving misdemeanor assault or battery on a household

member. Lack of manpower, the number of calls a field officer may have holding, and

detectives who are assigned to investigate felony crimes only, are factors contributing to

this reality. Another reality is most victims will not go to a shelter, preferring instead to

remain in their homes, many times in an attempt to prevent further trauma on children

who may have witnessed the violence.

Within Albuquerque, victims have suffered further abuse upon the return of the offender

after the police have left the scene. Many offenders will call the victim while the police

are still at the scene threatening or intimidating the victim over the phone for having

called the police. Victims have been informed by officers at the scene of an assault or

battery that when the offender was located around the block or several blocks away that

the police had no authority to make an arrest, only a criminal summons could be issued.

Senate Bill 315/aSPAC -- Page 3

Without a definition of “at the scene of a domestic disturbance” it must be noted that

agencies adhering to this interpretation may eventually find themselves on the end of a

failure to protect lawsuit, should the offender return to the scene and commit further

abuse.

It should be noted that other misdemeanor crimes in New Mexico specifically allow an

arrest without warrant. For example any law enforcement officer may arrest without war-

rant any person he has probable cause for believing has committed the crime of falsely

obtaining services or accommodations or the crime of shoplifting.

This bill is consistent with other misdemeanor crimes allowing arrest away from the

scene. The two other misdemeanor crimes do not involve the type and level of violence

that is unique to domestic violence. It should also be noted, that in Albuquerque more ar-

rests are made on shoplifting than domestic violence misdemeanors.

It is a general rule that once an officer has the right to arrest without a warrant for a mis-

demeanor or breach of the peace committed in his presence, he must do so as soon as he

reasonably can, and if he delays for purposes disassociated with the arrest or for such a

length of time as to necessarily indicate the interposition of other purposes, he cannot ar-

rest without a warrant.

Despite the significance of this amendment, the 24 hour window being proposed will in-

spire the usual “unconstitutional” objections. The 24 hour window creates an opportunity

for arguments that the police will no longer be concerned about the victim’s safety and

instead will take their time looking for the offender. Exigency will no longer be a consid-

eration. The rationale behind exigency in domestic violence situations is fear that the vic-

tim will be further harmed before a warrant can be obtained. That rationale may no

longer be valid given a 24 hour window. As officer shifts are usually of an 8 or 10 hour

length, the need for 24 hours will be questioned since once an officer performs a misde-

meanor investigation, follow up by officers on the next shift is rare particularly in com-

munities with larger populations due to lack of manpower.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution, and documenta-

tion of statutory changes. This change to the statute has the potential to increase the workload of

courts, thus requiring additional resources to handle the increase. This increased workload will

also apply to the public defenders and district attorneys.

OTHER SUBSTANTIVE ISSUES

The AGO has proposed an amendment that will require probable cause and exigent circum-

stances in order for an arrest to have been made of an offender who had left the scene. Requiring

exigent circumstances is a more palatable version since it will follow established New Mexico

law which states that even in felony cases, a warrantless arrest requires both probable cause and

exigent circumstances. Most often, law enforcement will pursue an offender committing these

two types of misdemeanor domestic violence offenses because they believe that the victim may

be under a particular threat of harm.

Senate Bill 315/aSPAC -- Page 4

POSSIBLE QUESTIONS

DPS asks if in the process of the investigation does the arresting officer need to be the original

officer or can the information be passed along to another officer if it is done in good faith.

DW/yr