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

SPONSOR

Neville

ORIGINAL DATE

LAST UPDATED

1/19/07

HB

SHORT TITLE

Creating a new crime of consumption of a controlled

substance

SB 65

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General Office (AGO)

Public Defender (PDD)

No Response Received From

Administrative Office of the District Attorneys (AODA)

SUMMARY

Synopsis of Bill

Senate Bill 65 creates the new crime of consumption of a controlled substance, a petty

misdemeanor. It provides that a blood, urine, or other medical test showing a positive result for a

controlled substance is prima facie evidence that the defendant consumed a controlled substance

in the county where the test was conducted.

SIGNIFICANT ISSUES

This bill is related to NMSA 1978, § 30-31-23 (2005); Controlled Substances; Possession

Prohibited. In State v. Hodge, 118 N.M. 410, 882 P.2d 1, (1994), the Supreme Court vacated the

defendants’ convictions on the charge of possession of a controlled substance where the only

evidence of possession was a urinalysis that showed cocaine in the defendants’ systems. “[T]he

mere presence of drugs in the urine or bloodstream does not constitute possession." State v.

Senate Bill 65 – Page

2

McCoy, 116 N.M. 491, 497, 864 P.2d 307, 313 (App.1993); overruled on other grounds, State v.

Hodge, 118 N.M. 410, 882 P.2d 1 (1994).

The Supreme Court recognized the inherent problems in convicting someone for consumption of

a controlled substance. The problem arises in that the presence of a drug in the body of a person

may not be intentional. Given that possession is a specific intent crime, conviction for

possession by consumption based only upon a drug test does not fulfill all requirements of the

criminal act because the requisite intent is not shown.

This current bill seeks to change the burden of proof. Consumption is criminalized unless the

defendant proves the consumption was not voluntary. This shifts an element of the crime from

the State to the defendant. In a constitutional system such as ours, the State always has the

burden of proving all elements of the crime beyond a reasonable doubt. This bill changes this

burden and is, therefore, unconstitutional.

PERFORMANCE IMPLICATIONS

Public Defender would be required to challenge the statute which would result in several lengthy

appeals. This would burden the department but would be absorbed in the ordinary course of

business.

EO/csd