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

SPONSOR Jennings

DATE TYPED 3/4/05

HB

SHORT TITLE Notice Requirements for Criminal Trespass

SB 437/aSJC

ANALYST Medina

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Partially duplicates HB 189

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General (AGO)

Administrative Office of the District Attorneys (AODA)

Administrative Office of the Courts (AOC)

Corrections Department (NMCD)

SUMMARY

Synopsis of SJC Amendment

The Senate Judiciary Committee Amendment restores requirement of the sufficient notice to the

public concerning criminal trespass to “posting of the property at all vehicular entryways”,

eliminating the provision that fencing or other enclosure obviously designed to exclude intruders

or contain livestock be considered adequate public notice of criminal trespass.

The amendment clarifies that government lands include state trust lands. In further regard to “no-

tice”, the amendment requires that posted notice signs be placed at the entrance of a building,

property, or fences. Regarding the placement of orange paint marks on trees to provide notice of

trespass, the amendment increases the minimum required dimensions of the orange marks from

eight inches in length to ten and from one inch in width to two. The amendment also considers

the placement of orange steel fence posts as adequate notice of trespass.

Senate Bill 437/aSJC -- Page 2

Synopsis of Original Bill

Senate Bill 437 amends Sections 30-14-1, 30-14-1.1, and 30-14-6 NMSA 1978 relating to the

technical posting requirements for no trespassing notices, making it easier to post private prop-

erty while still abiding by criminal trespass law and the wrongful posting of public lands law.

This bill expands the definition of criminal trespass to include “fenced” private property, in addi-

tion to “posted” private property. It further deletes the requirement to post “notice of no consent”

at all vehicular access entry ways, and replaces it with the need to issue written communication

or by the existence of fencing or other enclosure obviously designed to exclude intruders or con-

tain livestock.

This bill further replaces the section of statute relating to the requirements for posting a written

notice with one detailing several mechanisms by which to provide notice. This language is re-

placed by language providing for acceptable forms of notice. Notice is defined to include written

communication by the owner, fencing or other enclosure, a posted sign on the property, or the

placement of identifying orange paint marks on trees.

Significant Issues

This bill expands the means by which a property owner can provide notice of no consent for en-

tering private property. Rather than place the responsibility solely on the property owner for

clear signs posted at every vehicular entry way, this bill changes the notice provisions to allow

posting by written communication as well as the placement of fencing or signs in places likely to

be seen by visitors; and adds a new posting technique which uses vertical stripes of orange paint

placed on trees and sign posts at certain heights and intervals.

According to the Attorney General’s Office, this provision may prove difficult to enforce be-

cause the crime of criminal trespass, as defined by the New Mexico Supreme Court in its Uni-

form Jury Instruction 14-402, requires that the defendant “knew or should have known” that

permission to enter had been denied. When property is posted by signs proclaiming it closed that

is relatively easy to prove; however, the use of orange paint would require proving that the de-

fendant knew or should have known the meaning of the paint stripes, which could be very diffi-

cult to prove and would depend on the widespread understanding of the significance of such

stripes.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

The sections of this bill relating to criminal trespass, types of trespass, and no trespassing notice

duplicate language in HB 819. However, HB 819 also includes a rewrite of Unlawful Hunting

and Fishing (Section 17-2-7 NMSA 1978).

TECHNICAL ISSUES

Although fencing, sing posting, and the placement orange paint are all defined and it is evident

how a property owner can issue notice of criminal trespass by these means, the bill is not clear

on how written communication from the property owner, lessee, or his agent is to be transmitted

to provide notice of criminal trespass.

Senate Bill 437/aSJC -- Page 3

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The technical posting requirements for no trespassing notices will not change.

DXM/lg:yr