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

SPONSOR Rehm

ORIGINAL DATE

LAST UPDATED

2/7/2006

HB 821

SHORT TITLE Consumption of a Controlled Substance

SB

ANALYST McOlash

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

None

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to: HB 336

SOURCES OF INFORMATION

LFC Files

Responses Received From

NM Board of Pharmacy (BOP)

Public Defender Department (PDD)

Corrections Department (CD)

Department of Public Safety (DPS)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

House Bill 821 amends Section 30-31-23 NMSA 1978 to add the following to the definition of

possession:

A blood, urine or other medical test that indicates a detectable

amount of a controlled substance not obtained through a valid

prescription is present or has been metabolized is prima facie

evidence of possession in the county where the test was obtained.

House Bill 821 - Page

2

FISCAL IMPLICATIONS

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

tion of statutory changes. Any additional fiscal impact on the judiciary would be proportional to

the enforcement of this law and commenced prosecutions. New laws, amendments to existing

laws, and new hearings have the potential to increase caseloads in the courts, thus requiring addi-

tional resources to handle the increase (AOC).

SIGNIFICANT ISSUES

Corrections

This bill would not likely withstand Constitutional scrutiny under the Eighth and Fourteenth

Amendments. It appears to punish a person for the status of being a drug user rather than for ac-

tually presently using, purchasing, selling, possessing, or for antisocial or disorderly behavior

resulting from the controlled substances’ administration in New Mexico. Moreover, it appears

that a person can be guilty of an offense under the bill whether or not he has ever used or pos-

sessed any narcotics within the state of New Mexico, and whether or not he has been guilty of

any antisocial behavior here. The New Mexico Court of Appeals has already ruled that inges-

tion, i.e. the mere presence of drugs in the urine or bloodstream.

Board of Pharmacy

Medical biological testing information not obtained with a search warrant or subpoena would

probably be a violation of the patient’s right to privacy. If a hospital, clinic, private practice

practitioner, medical testing laboratory, etc., reported positive tests for a controlled substance,

they might be subject to a administrative or civil penalty for reporting protected health informa-

tion to authorities unless given immunity from such action. A Schedule 1 controlled substance

does not have a legitimate medical use and therefore may not be obtained by a valid prescription.

A Schedule 2 thru 5 controlled substance may be obtained by a valid prescription but without a

subpoena or search warrant, the protected health information would not be available to law en-

forcement. A positive test for a controlled substance in Schedules 2 thru 5 without additional

information would probably not meet the probable cause level.

Public Safety

It appears that this legislation seeks to over rule current case law in the State of New Mexico as

set forth in the case of State vs. McCoy, 116 N.M. 491 (Ct. App. 1993), which overturned the

conviction of two defendants who were charged with possession of a controlled substance when

random urinalysis testing indicated the presence of controlled substances in their body. The

court found that the positive drug results were relevant as circumstantial evidence that the defen-

dant has possessed drugs at the time of ingestion. Furthermore, the court found that the state

could rely on circumstantial evidence of possession to establish jurisdiction.

However, that additional proof of knowledge or intent to possess drugs beyond a positive drug

test was required for a conviction. The current bill would make results of a positive drug test

prima-facie evidence of possession in the county where the test was obtained. Prima-facie evi-

dence is sufficient to establish a given fact, which if not rebutted or contradicted, will remain suf-

ficient. In the McCoy matter, the court noted the argument of the state that because the positive

drug test is circumstantial evidence of possession the states has exceeded in establishing a prima-

facie case of possession of a controlled substance that argument would “impermissibly shift the

burden of proof to defendants.” The problem being that as the court noted, “it would be difficult,

House Bill 821 - Page

3

if not impossible, for a defendant to present credible evidence that he or she ingested drugs un-

knowingly. Although it may be just as difficult for the state to show a lack of deception, coer-

cion or involuntary consumption, we believe it is the state that should shoulder the burden of

proof if it chooses to rely principally on a positive drug test to prosecute a defendant for posses-

sion of cocaine.”

RELATIONSHIP

Relates to HB 336 (concerning drug-free residential zones)

TECHNICAL ISSUES

Corrections

Currently persons convicted for the possession of the controlled substance (e.g., marijuana) are

sentenced based upon the amount of the substance they had in their possession. Under this bill a

person could presumably be convicted based merely upon a positive drug test; however, the bill

does not contain a clear sentencing structure that does not rely on the amount of the controlled

substance in the convicted person’s possession, nor does it state what degree a felony will be for

convictions based on positive blood tests.

POSSIBLE QUESTIONS

If a person uses drugs but also has drugs for future use, can the person be prosecuted for both

“possessions”.

BMC/nt