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

SPONSOR Rodriguez

ORIGINAL DATE

LAST UPDATED

1-28 -07

3/16/07 HB

SHORT TITLE Roadside Memorial Desecration Penalties

SB 478/aHJC

ANALYST Baca

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

Public Defender Department (PDD)

Economic Development Department (EDD)

Office of the Attorney General (OAG)

Department of Cultural Affairs (DCA)

SUMMARY

Synopsis of HJC Amendments

House Judiciary Amendments provide that the bill applies to descansos located on private

property as well as on state-owned property and to memorials placed on state or private property

irrespective of the cause of death.

Synopsis of Original Bill

Senate Bill 478 adds a new section to the Criminal Code penalizing those who knowingly or

willfully deface or destroy a descanso, a memorial placed along a public road to memorialize a

motor vehicle accident that resulted in death. The penalty for violation of this section is petty

misdemeanor or misdemeanor.

FISCAL IMPLICATIONS

This bill has no direct impact on the general fund.

Senate Bill 478/aHJC– Page

2

SIGNIFICANT ISSUES

The DCA notes that Descansos, crucitas, memorias or roadside crosses are important cultural

and traditional artifacts that pay tribute to the death of an individual or persons killed in

automobile accident. These roadside memorials are a unique aspect of New Mexico’s cultural

landscape. As such they should be protected from vandalism and harm. While DCA’s Historic

Preservation Division (HPD) does not consider contemporary descansos to be “historic"

properties and, therefore protected under

State preservation laws, HPD does consult with the

New Mexico Department of Transportation (NMDOT) over their treatment during highway

projects. HPD, therefore, would endorse a bill that makes their desecration a criminal offense.

The maintenance and inventory of artifacts pertaining to descansos will need to be addressed.

Also at issue are the administration and enforcement of this legislation to prosecute.

The bill provides criminal penalties ranging from a petty misdemeanor for a first offense to a

misdemeanor for subsequent offenses. According to the OAG, the bill does not apply to “law

enforcement officials or other employees of the state or a political subdivision of the state who 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."

OTHER SUBSTANTIVE ISSUES

The EDD analysis states that “Descansos are an important part of New Mexico’s cultural

heritage and it is crucial that they are protected, so long as their presence does not present a

driving hazard."

THE DCA suggests that maintenance and inventory of artifacts pertaining to descansos will need

to be addressed along with issues related to the administration and enforcement of this legislation

to prosecute.

TECHNICAL ISSUES

The OAG notes that:

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 OAG also questions the use of the term “descanso" and submits that the language in

the bill unclear, that the bill does not describe the memorials it intends to protect and that

it does not authorize their placement.

Further, notes the OAG, 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 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.

Senate Bill 478/aHJC– Page

3

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Desecration of existing descansos may continue without any penalty assessed against the

perpetrators of any damage to the memorials.

LRB/mt:nt