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

SPONSOR Garcia, M.P

ORIGINAL DATE

LAST UPDATED

2/03/07

2/21/07 HB 333/aHJC/aHF#1

SHORT TITLE

Roadside Memorial Desecration Penalties

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB 478

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Corrections Department (CD)

Second Judicial District Attorney

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of HFL#1 Amendment

House Floor Amendment 1 to House Bill 333 as amended removes from criminal liability

owners of private property upon which a descanso is located. This amendment addresses the

concerns expressed by the AGO in this regard as outlined below.

Synopsis of HJC Amendment

House Judiciary Committee amendment 1 to HB 333, broadens the bill to state that a person

shall not knowingly or willfully deface or destroy, in whole or in part, a descanso, also known as

a memorial, placed alongside a public road right of way to memorialize a death of one or more

persons.

House Bill 333/aHJC/aHFL#1 – Page

2

Synopsis of Original Bill

House Bill 333 prohibits a person from defacing or destroying a “descanso, also known as a

memorial" placed alongside a public road right-of-way to memorialize a motor vehicle accident

resulting in death. The bill provides criminal penalties ranging from a petty misdemeanor for a

first offense to a misdemeanor for subsequent offenses. The bill does not apply to “law

enforcement officials or other employees of the state or a political subdivision of the state that in

the course of the lawful discharge of their duties move or remove a descanso that obstructs or

damages any public road in this state."

FISCAL IMPLICATIONS

The Second Judicial District Attorney’s Office notes that persons punished for violating the

proposed statute could be incarcerated for up 180 days on a first offense and up to 364 days on a

second offense. See, Section 31-19-1, NMSA.

SIGNIFICANT ISSUES

According to the Second Judicial District Attorney’s Office, there is no limitation stated on the

size of the memorials or specifics regarding their location which—if very large or ornate or close

to the traveled portion of a road--might be distracting and/or obstruct visibility or create other

hazards. As stated: “alongside a public road" might give rise to a claim that a memorial should

be allowed on private property. Protection of a memorial on public property, if it is religious in

nature, might be considered a violation of the Establishment Clause of the First Amendment to

the United States Constitution, even if the memorial was erected and/or maintained by a private

citizen.

The AGO identifies the following legal issues.

The Memorial Sign Program has been established by the New Mexico Department of

Transportation in NMAC 18.20.7. That program regulates the application for and placement of

memorial signs, but does not provide for the placement of other structures. Other than the

memorial signs provided by that rule, New Mexico law does not allow for the placement or

regulation of memorials along public highways or roads.

Under current state law, the erection of a “descanso" may be considered to be “trespassing"

and/or in violation of DOT regulations. They may also be prohibited by state law prohibiting the

erection of any structure upon any highway. NMSA Section 67-7-2. Another DOT rule prohibits

“encroachments" and “obstructions" on highway right-of-ways. NMAC 18.20.5.Therefore, this

bill has the effect of attaching criminal penalties to the destruction or defacing of an

unauthorized structure.

The bill uses the term “descanso" which can be translated from Spanish to English as "resting

place (of a dead person)," from the verb descansar "to (have a) rest." It is unclear why the

Spanish terminology is used, and is unclear whether the bill intends to prohibit the defacement or

destruction of all roadside memorials, or just those having Spanish characteristics. Further, the

bill does not describe the memorials it seeks to protect or authorize their placement.

Further, the bill implies that law enforcement officers or public employees may remove a

descanso only if it obstructs or damages the public road. This is a question of fact, which may

House Bill 333/aHJC/aHFL#1 – Page

3

subject those officers and employees to criminal liability. Also, the holder of the right-of-way

and/or owner of the land upon which the right-of-way lies usually has authority to manage that

property. This bill might affect their management rights and obligations.

ALTERNATIVES

As suggest by the AGO, the bill should specifically describe the structures it seeks to protect,

authorize their placement in accordance with DOT regulations, consider the safety of those

placing the structures and motorists and the rights of property owners and right-of-way holders to

manage property along public highways.

EO/nt:csd