HOUSE BILL 211

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Rhonda S. King and Clinton D. Harden

AN ACT

RELATING TO CRIMINAL LAW; PROHIBITING INTOXICATION BY PERSONS UNDER TWENTY-ONE YEARS OF AGE; PROVIDING FOR DISMISSAL IN CERTAIN CIRCUMSTANCES; INCREASING A PENALTY.

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

     SECTION 1. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read:

     "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:

          A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, including the following offenses:

                (1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code:

                     (a) driving while under the influence of intoxicating liquor or drugs;

                     (b) failure to stop in the event of an accident causing death, personal injury or damage to property;

                     (c) unlawful taking of a vehicle or motor vehicle;

                     (d) receiving or transferring of a stolen vehicle or motor vehicle;

                     (e) homicide by vehicle;

                     (f) injuring or tampering with a vehicle;

                     (g) altering or changing of an engine number or other vehicle identification numbers;

                     (h) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

                     (i) reckless driving;

                     (j) driving with a suspended or revoked license; or

                     (k) an offense punishable as a felony;

                (2) [buying, attempting to buy, receiving, possessing or being served any alcoholic liquor] a violation of Subsection C of Section 60-7B-1 NMSA 1978 or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations division of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods;

                (3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

                (4) a violation of the Controlled Substances Act;

                (5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;

                (6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; or

                (7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act;

          B. "delinquent child" means a child who has committed a delinquent act;

          C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

          D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

          E. "felony" means an act that would be a felony if committed by an adult;

          F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

          G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

          H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section;

          I. "supervised release" means the release of a juvenile, whose term of commitment has not expired, from a facility for the care and rehabilitation of adjudicated delinquent children, with specified conditions to protect public safety and promote successful transition and reintegration into the community. A juvenile on supervised release is subject to monitoring by the department until the term of commitment has expired and may be returned to custody for violating conditions of release; and

          J. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:

                (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

                     (a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

                     (b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

                     (c) kidnapping, as provided in Section 30-4-1 NMSA 1978;

                     (d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

                     (e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

                     (f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

                     (g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

                     (h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

                     (i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

                     (j) robbery, as provided in Section

30-16-2 NMSA 1978;

                     (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

                     (l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

                     (m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

                (2) fourteen to eighteen years of age at the time of the offense, who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees are not considered a prior adjudication for the purposes of this paragraph; or

                (3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978."

     SECTION 2. Section 60-3A-1 NMSA 1978 (being Laws 1981, Chapter 39, Section 1, as amended) is amended to read:

     "60-3A-1. SHORT TITLE.--Chapter 60, Articles 3A, 4B, 4C, 5A, 6A, 6B, 6C, 6E, 7A, 7B and 8A [of Chapter 60] NMSA 1978 may be cited as the "Liquor Control Act"."

     SECTION 3. Section 60-7B-1 NMSA 1978 (being Laws 1993, Chapter 68, Section 22, as amended) is amended to read:

     "60-7B-1. SELLING OR GIVING ALCOHOLIC BEVERAGES TO

MINORS--POSSESSION OF ALCOHOLIC BEVERAGES BY MINORS.--

          A. It is a violation of the Liquor Control Act for a person, including a person licensed pursuant to the provisions of the Liquor Control Act, or an employee, agent or lessee of that person, if [he] the person knows or has reason to know that [he] the person is violating the provisions of this section, to:

                (1) sell, serve or give alcoholic beverages to a minor or permit a minor to consume alcoholic beverages on the licensed premises;

                (2) buy alcoholic beverages for or procure the sale or service of alcoholic beverages to a minor;

                (3) deliver alcoholic beverages to a minor; or

                (4) aid or assist a minor to buy, procure or be served with alcoholic beverages.

          B. It is not a violation of the Liquor Control Act, as provided in Subsection A or C of this section, when:

                (1) a parent, legal guardian or adult spouse of a minor serves alcoholic beverages to that minor on real property, other than licensed premises, under the control of the parent, legal guardian or adult spouse; or

                (2) alcoholic beverages are used in the practice of religious beliefs.

          C. It is a violation of the Liquor Control Act for a minor to buy, attempt to buy, receive, possess or permit [himself to be] being served with alcoholic beverages or to be visibly in an intoxicated condition.

          D. When a person other than a minor procures another person to sell, serve or deliver alcoholic beverages to a minor by actual or constructive misrepresentation of facts or concealment of facts calculated to cause the person selling, serving or delivering the alcoholic beverages to the minor to believe that the minor is legally entitled to be sold, served or delivered alcoholic beverages, and actually deceives that person by that misrepresentation or concealment, then the procurer and not the person deceived shall have violated the provisions of the Liquor Control Act.

          [E. As used in the Liquor Control Act, "minor" means a person under twenty-one years of age.

          F.] E. In addition to the penalties provided in Section 60-6C-1 NMSA 1978, a violation of the provisions of Subsection A of this section is a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

          [G.] F. A violation of the provisions of Subsection C of this section is a misdemeanor and the offender shall be punished as follows:

                (1) for a first violation: [the offender shall be:

                     (a) fined an amount not more than one thousand dollars ($1,000); and

                     (b)] (a) the offender shall be ordered by the sentencing court to perform thirty hours of community service preferably related to reducing the incidence of driving while under the influence of intoxicating liquor. Community service may include attending a victim impact panel;

                     (b) the offender's driver's license shall be suspended for a period of sixty days. If the minor is too young to possess a driver's license at the time of the violation, then sixty days shall be added to the date that the minor would otherwise become eligible to obtain a driver's license;

                     (c) the offender shall be ordered by the sentencing court to attend an alcohol prevention or early intervention program approved by the local DWI county program. The program shall be a minimum of eight hours and up to sixteen hours in length; and

                     (d) if the offender successfully completes the requirements of this paragraph, an adjudication of guilt shall not be entered and the offender shall be discharged and the proceedings dismissed; provided that discharge and dismissal pursuant to this subparagraph may only occur once with respect to any person. Discharge and dismissal pursuant to this subparagraph shall be without adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime;

                (2) for a second violation, the offender shall:

                     (a) be fined an amount not more than one thousand dollars ($1,000);

                     (b) be ordered by the sentencing court to perform forty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and

                     (c) have [his] the offender's driver's license suspended for a period of ninety days. If the minor is too young to possess a driver's license at the time of the violation, then ninety days shall be added to the date [he] the offender would otherwise become eligible to obtain a driver's license; and

                (3) for a third or subsequent violation, the offender shall:

                     (a) be fined an amount not more than one thousand dollars ($1,000);

                     (b) be ordered by the sentencing court to perform sixty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and

                     (c) have [his] the offender's driver's license suspended for a period of two years or until the offender reaches twenty-one years of age, whichever period of time is greater.

          [H.] G. A violation of the provisions of Subsection D of this section is a fourth degree felony, and the offender shall be sentenced pursuant to the provisions of Section

31-18-15 NMSA 1978.

          H. As used in this section:

                (1) "intoxicated" means the impairment of a person's mental and physical faculties as a result of alcoholic beverage use so as to substantially diminish that person's ability to think and act in a manner in which an ordinarily prudent person, in full possession of the person's faculties, would think and act under like circumstances; and

                (2) "possess" means to be in actual physical control and does not include constructive possession."

     SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2012.

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