Committee Substitute for HB0433JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILLS 433 & 24

49th legislature - STATE OF NEW MEXICO - first session, 2009

AN ACT

RELATING TO SEX OFFENDERS; REQUIRING A SEX OFFENDER TO REGISTER ANY ELECTRONIC IDENTITIES USED BY THE SEX OFFENDER; REQUIRING A SEX OFFENDER TO NOTIFY THE COUNTY SHERIFF OF ANY SUBSEQUENT ELECTRONIC IDENTITIES THAT A SEX OFFENDER INTENDS TO USE PRIOR TO USING THEM TO COMMUNICATE WITH OTHERS; PROVIDING THAT REGISTRATION INFORMATION NOT PROVIDED TO THE PUBLIC SHALL BE USED ONLY FOR LAW ENFORCEMENT PURPOSES; CLARIFYING PROVISIONS OF THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2007.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 29-11A-3 NMSA 1978 (being Laws 1995, Chapter 106, Section 3, as amended by Laws 2007, Chapter 68, Section 1 and by Laws 2007, Chapter 69, Section 5) is amended to read:

"29-11A-3. DEFINITIONS.--As used in the Sex Offender Registration and Notification Act:

A. "conviction" means a conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge;

B. "electronic identity" means a name, address, moniker or other self-identifier used in internet communications or postings or on other communication devices but does not include any passwords;

[B.] C. "institution of higher education" means a:

(1) private or public post-secondary educational institution;

(2) trade school; or

(3) professional school;

[C.] D. "registration requirement" means any requirement set forth in Section 29-11A-4 NMSA 1978 that requires a sex offender to register, provide information, including a DNA sample, renew, revise or change registration information or provide written notice or disclosure regarding the sex offender's status as a sex offender;

[D.] E. "sex offender" means a person who:

(1) is a resident of New Mexico who is convicted of a sex offense pursuant to state, federal, tribal or military law;

(2) changes residence to New Mexico, when that person has been convicted of a sex offense pursuant to state, federal, tribal or military law;

(3) does not have an established residence in New Mexico, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico and who has been convicted of a sex offense pursuant to state, federal, tribal or military law; or

(4) is a resident of another state and who has been convicted of a sex offense pursuant to state, federal, tribal or military law, but who is:

(a) employed full time or part time in New Mexico for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any calendar year, including any employment or vocation, whether financially compensated, volunteered or for the purpose of government or educational benefit; or

(b) enrolled on a full-time or part-

time basis in a private or public school or an institution of higher education in New Mexico; and

[E.] F. "sex offense" means any of the following offenses or their equivalents in any other jurisdiction:

(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second, third or fourth degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978;

(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section

30-9-13 NMSA 1978;

(4) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;

(5) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;

(6) [kidnaping] kidnapping, as provided in Section 30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(7) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(8) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;

(9) enticement of child, as provided in Section 30-9-1 NMSA 1978;

(10) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is less than eighteen years of age;

(11) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978;

(12) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or

(13) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (10) of this subsection, as provided in Section 30-28-1 NMSA 1978."

Section 2. Section 29-11A-4 NMSA 1978 (being Laws 1995, Chapter 106, Section 4, as amended) is amended to read:

"29-11A-4. REGISTRATION OF SEX OFFENDERS--INFORMATION REQUIRED--CRIMINAL PENALTY FOR NONCOMPLIANCE.--

A. A sex offender residing in this state shall register with the county sheriff for the county in which the sex offender resides.

B. A sex offender who is a resident of New Mexico shall register with the county sheriff no later than ten days after being released from the custody of the corrections department, a municipal or county jail or a federal, military or tribal correctional facility or detention center or being placed on probation or parole. A sex offender who changes [his] residence to New Mexico shall register with the county sheriff no later than ten days after [his] arrival in this state. When a sex offender registers with the county sheriff, [he] the sex offender shall provide the following registration information:

(1) [his] the sex offender's legal name and any other names or aliases that [he] the sex offender is using or has used;

(2) [his] the sex offender's date of birth;

(3) [his] the sex offender's social security number;

(4) [his] the sex offender's current address;

(5) [his] the sex offender's place of employment;

(6) every electronic identity established or used by the sex offender;

[(6)] (7) the sex offense for which [he] the sex offender was convicted; and

[(7)] (8) the date and place of [his] the sex offense conviction.

C. A sex offender who is a resident of another state but who is employed in New Mexico or attending public or private school or an institution of higher education in New Mexico shall register with the county sheriff for the county in which the sex offender is working or attending school or an institution of higher education. [D. A sex offender who is a resident of another state but who is employed in New Mexico or attending public or private school or an institution of higher education in New Mexico] The sex offender shall register [with the county sheriff] no later than ten days after beginning work or school. When the sex offender registers with the county sheriff, [he] the sex offender shall provide the following registration information:

(1) [his] the sex offender's legal name and any other names or aliases that [he] the sex offender is using or has used;

(2) [his] the sex offender's date of birth;

(3) [his] the sex offender's social security number;

(4) [his] the sex offender's current address in [his] the sex offender's state of residence and, if applicable, the address of [his] the sex offender's place of lodging in New Mexico while [he is] working or attending school or an institution of higher education;

(5) [his] the sex offender's place of employment or the name of the school [he] the sex offender is attending;

(6) every electronic identity established or used by the sex offender;

[(6)] (7) the sex offense for which [he] the sex offender was convicted; and

[(7)] (8) the date and place of [his] the sex offense conviction.

[E.] D. When a sex offender registers with a county sheriff, the sheriff shall obtain:

(1) a photograph of the sex offender and a complete set of the sex offender's fingerprints;

(2) a description of any tattoos, scars or other distinguishing features on the sex offender's body that would assist in identifying the sex offender; and

(3) a DNA sample [of his DNA] for inclusion in the sex offender DNA identification system pursuant to the provisions of the DNA Identification Act.

E. When a sex offender who is registered intends to use an electronic identity that was not provided to the county sheriff, the sex offender shall send written notice of the electronic identity to the county sheriff prior to using that identity to communicate with others over the internet.

F. When a sex offender who is registered changes [his] residence within the same county, the sex offender shall send written notice of [his] the change of address to the county sheriff no later than ten days after establishing [his] the new residence.

G. When a sex offender who is registered changes [his] residence to a new county in New Mexico, the sex offender shall register with the county sheriff of the new county no later than ten days after establishing [his] the new residence. The sex offender shall also send written notice of the change in residence to the county sheriff with whom [he] the sex offender last registered no later than ten days after establishing [his] the new residence.

H. When a sex offender who is registered or required to register does not have an established residence, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico, the sex offender shall register with the county sheriff for each county in which the sex offender is living or temporarily located. The sex offender shall register no later than ten days after a change in [his] living arrangements or temporary location.

I. When a sex offender who is registered or required to register is employed, begins a vocation or is enrolled as a student at an institution of higher education in New Mexico, the sex offender shall disclose [his] the sex offender's status as a sex offender in writing to the county sheriff for the county in which the institution of higher education is located, the law enforcement entity responsible for the institution of higher education and the registrar for the institution of higher education no later than ten days after beginning employment, beginning a vocation or enrolling at the institution of higher education. The sex offender shall also send written notice of any change regarding [his] employment, vocation or enrollment status at an institution of higher education to the county sheriff, the law enforcement entity and the registrar no later than ten days after the change in [his] employment, vocation or enrollment status.

J. When a sex offender who is registered or required to register is employed or is enrolled as a student at a public or private school in New Mexico, the sex offender shall disclose [his] the sex offender's status as a sex offender in writing to the county sheriff for the county in which the school is located and to the principal of the school no later than ten days after beginning employment or enrolling at the school. The sex offender shall also send written notice of any change regarding [his] employment or enrollment status at a school to the county sheriff and the principal no later than ten days after the change in [his] employment or enrollment status.

K. When a sex offender who is registered or required to register is employed, begins a vocation or volunteers [his] services, regardless of whether the sex offender receives payment or other compensation, the sex offender shall disclose [his] the sex offender's status as a sex offender in writing to [his] the sex offender's employer, supervisor or person similarly situated. The written disclosure shall be made immediately upon beginning [his] employment, vocation or volunteer service.

L. Following [his] initial registration pursuant to the provisions of this section:

(1) a sex offender [required to register pursuant to the provisions of] convicted of any of the sex offenses enumerated in Subsection D of Section 29-11A-5 NMSA 1978 or their equivalents shall renew [his] registration with the county sheriff not less than once in each ninety-day period following the date of the sex offender's initial registration for the entirety of [his] the sex offender's natural life; and

(2) a sex offender [required to register pursuant to the provisions of] convicted of any of the sex offenses enumerated in Subsection E of Section 29-11A-5 NMSA 1978 or their equivalents shall annually renew [his] the sex offender's registration with the county sheriff prior to December 31 of each subsequent calendar year for a period of ten years.

M. Notwithstanding the provisions of Paragraph (2) of Subsection L of this section, if a sex offender is convicted a second or subsequent time for a sex offense set forth in Subsection E of Section 29-11A-5 NMSA 1978, [he] the sex offender shall renew [his] registration with the county sheriff not less than once in each ninety-day period following the date of the sex offender's initial registration for the entirety of [his] the sex offender's natural life.

N. A sex offender who willfully or knowingly fails to comply with the registration requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. A sex offender who willfully or knowingly fails to comply with the registration requirements set forth in this section after a first or subsequent conviction for a violation pursuant to this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. The willful failure to comply with any registration requirement set forth in this section shall be deemed part of a continuing transaction or occurrence. A conviction pursuant to this subsection shall not be considered a felony for purposes of the imposition of sentencing enhancements pursuant to the provisions of Section 31-18-17 NMSA 1978.

O. A sex offender who willfully or knowingly provides false information when complying with the registration requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. A sex offender who willfully or knowingly provides false information when complying with the registration requirements set forth in this section after a first or subsequent conviction for a violation pursuant to this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. The willful providing by a sex offender of false information with respect to the registration requirements set forth in this section shall be deemed part of a continuing transaction or occurrence. A conviction pursuant to this subsection shall not be considered a felony for purposes of the imposition of sentencing enhancements pursuant to the provisions of Section 31-18-17 NMSA 1978."

Section 3. Section 29-11A-5.1 NMSA 1978 (being Laws 1999, Chapter 19, Section 8, as amended) is amended to read:

"29-11A-5.1. PUBLIC ACCESS TO INFORMATION REGARDING CERTAIN REGISTERED SEX OFFENDERS--ACTIVE COMMUNITY NOTIFICATION--INTERNET WEB SITE.--

A. If a sex offender is convicted of one of the following sex offenses, the county sheriff shall forward registration information obtained from the sex offender to the district attorney for the judicial district in which the sex offender resides and, if the sex offender is a resident of a municipality, the chief law enforcement officer for the municipality in which the sex offender resides:

(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section

30-9-13 NMSA 1978;

(3) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;

(4) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978; or

(5) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (4) of this subsection, as provided in Section 30-28-1 NMSA 1978.

B. A person who wants to obtain registration information regarding sex offenders described in Subsection A of this section may request that information from the:

(1) sheriff for the county in which the sex offenders reside;

(2) chief law enforcement officer for the municipality in which the sex offenders reside;

(3) district attorney for the judicial district in which the sex offenders reside; or

(4) secretary of public safety.

C. Upon receiving a request for registration information regarding sex offenders described in Subsection A of this section, the county sheriff, chief municipal law enforcement officer, district attorney or secretary of public safety shall provide that registration information, with the exception of a sex offender's social security number, electronic identities and DNA information, within a reasonable period of time, and no later than seven days after receiving the request.

D. Within seven days of receiving registration information from a sex offender described in Subsection A of this section, the county sheriff shall contact every licensed daycare center, elementary school, middle school and high school within a one-mile radius of the sex offender's residence and provide them with the sex offender's registration information, with the exception of the sex offender's social security number, electronic identities and DNA information.

E. The department of public safety shall establish and manage an internet web site that provides the public with registration information regarding sex offenders described in Subsection A of this section, except that the department of public safety shall not provide registration information on the internet web site regarding a sex offender who was less than eighteen years of age when the sex offender committed the sex offense for which the sex offender was convicted as a youthful offender, as provided in Section 32A-2-3 NMSA 1978, unless at the time of sentencing, the court made a finding that the sex offender is not amenable to treatment and is a danger to the community. The registration information provided to the public pursuant to this subsection shall not include a sex offender's social security number, electronic identities or DNA information or a sex offender's place of employment, unless the sex offender's employment requires the sex offender to have direct contact with children. Registration information not provided to the public shall be used only for law enforcement purposes."

Section 4. Section 29-11A-7 NMSA 1978 (being Laws 1995, Chapter 106, Section 7, as amended) is amended to read:

"29-11A-7. NOTICE TO SEX OFFENDERS OF DUTY TO

A. A court shall provide a sex offender convicted in that court with written notice of [his] the sex offender's duty to register pursuant to the provisions of the Sex Offender Registration and Notification Act. The written notice shall be included in judgment and sentence forms provided to the sex offender. The written notice shall inform the sex offender that [he] the sex offender is required to:

(1) register with the county sheriff for the county in which the sex offender will reside or, if the sex offender will not have an established residence, with the county sheriff for each county in which the sex offender will live or be temporarily located pursuant to the provisions of the Sex Offender Registration and Notification Act;

(2) report subsequent changes of address pursuant to the provisions of the Sex Offender Registration and Notification Act;

(3) notify the county sheriff of an electronic identity that is not registered and that the sex offender intends to use, prior to using that identity to communicate with others over the internet, pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(3)] (4) notify the county sheriff of the county [he] the sex offender resides in if the sex offender intends to move to another state and that the sex offender is required to register in the other state pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(4)] (5) disclose [his] the sex offender's status as a sex offender in writing when [he] the sex offender begins employment, begins a vocation or enrolls as a student at an institution of higher education in New Mexico to the county sheriff for the county in which the institution of higher education is located and to the law enforcement entity and registrar for the institution of higher education pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(5)] (6) provide written notice of any change regarding [his] the sex offender's employment, vocation or enrollment status at an institution of higher education to the county sheriff, the law enforcement entity and the registrar pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(6)] (7) disclose [his] the sex offender's status as a sex offender in writing, when [he] the sex offender begins employment or enrolls as a student at a private or public school in New Mexico, to the county sheriff for the county in which the school is located and to the principal of the school pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(7)] (8) provide written notice of any change regarding [his] the sex offender's employment or enrollment status at a public or private school in New Mexico to the county sheriff and the principal of the school pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(8)] (9) disclose [his] the sex offender's status as a sex offender in writing to [his] the sex offender's employer, supervisor or other person similarly situated when [he] the sex offender begins employment, begins a vocation or volunteers [his] the sex offender's services, regardless of whether the sex offender receives payment or other compensation, pursuant to the provisions of the Sex Offender Registration and Notification Act; and

[(9)] (10) read and sign a form that indicates that the sex offender has received the written notice and that a responsible court official, designated by the chief judge for that judicial district, has explained the written notice to the sex offender.

B. The corrections department, a municipal or county jail or a detention center, at the time of release of a sex offender in its custody, shall provide a written notice to the sex offender of [his] the sex offender's duty to register, pursuant to the provisions of the Sex Offender Registration and Notification Act. The written notice shall inform the sex offender that [he] the sex offender is required to:

(2) report subsequent changes of address pursuant to the provisions of the Sex Offender Registration and Notification Act;

(3) notify the county sheriff of any electronic identity that is not registered and that the sex offender intends to use, prior to using that identity to communicate with others over the internet, pursuant to the provisions of the Sex Offender Registration and Notification Act;

[(9)] (10) read and sign a form that indicates that the sex offender has received the written notice and that a responsible corrections department official, designated by the secretary of corrections, or a responsible municipal or county jail official or detention center official has explained the written notice to the sex offender.

C. A court, the corrections department, a municipal or county jail or a detention center shall also provide written notification regarding a sex offender's release to the sheriff of the county in which the sex offender is released and to the department of public safety.

D. The department of public safety, at the time it is notified by officials from another state that a sex offender will be establishing residence in New Mexico, shall provide written notice to the sex offender of [his] the sex offender's duty to register pursuant to the provisions of the Sex Offender Registration and Notification Act."

Section 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

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