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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.
pg_0002
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.
pg_0003
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.
pg_0004
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