SB0495

SENATE BILL 495

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Pete Campos

AN ACT

RELATING TO CRIMINAL LAW; PROHIBITING FIREARM POSSESSION BY CERTAIN PERSONS CONVICTED OF DOMESTIC VIOLENCE OFFENSES OR SUBJECT TO CERTAIN ORDERS OF PROTECTION; REQUIRING TRANSFER OF FIREARMS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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

SECTION 1. A new section of the Crimes Against Household Members Act is enacted to read:

"[NEW MATERIAL] TRANSFER OF FIREARMS BY PERSONS CONVICTED OF DOMESTIC VIOLENCE OFFENSES.--If a person is convicted of a misdemeanor crime of domestic violence as described in Section 30-7-16 NMSA 1978, that person shall be prohibited from receiving, transporting or possessing firearms and the court shall inform the person of that prohibition and shall order the person to transfer all firearms owned by the person or in the person's possession as follows:

A. the transfer shall be made within twenty-four hours of conviction to a state or local law enforcement agency or to a federally licensed firearms dealer. A law enforcement agency or federally licensed firearms dealer that takes possession of the firearms shall issue a proof of transfer to the person transferring the firearms. The proof of transfer shall include the name of the person, the date of transfer and the serial number, make and model of all transferred firearms;

B. within forty-eight hours after being served with the order to transfer the person shall either:

(1) file a copy of the proof of transfer with the court of conviction and attest that all firearms owned by the person or in the person's possession at the time of conviction have been transferred in accordance with this section and that the person currently owns no firearms and has no firearms in the person's possession; or

(2) attest that, at the time of conviction, the person owned no firearms and had no firearms in the person's possession and that the person currently owns no firearms and has no firearms in the person's possession; and

C. if the person transfers a firearm to a law enforcement agency, the law enforcement agency may dispose of the firearm; provided that the person is notified of the disposal and that the person receives any financial value received from the disposal, less the cost associated with taking possession of, storing and disposing of the firearm."

SECTION 2. Section 30-3-12 NMSA 1978 (being Laws 1995, Chapter 221, Section 3) is amended to read:

"30-3-12. ASSAULT AGAINST A HOUSEHOLD MEMBER.--

A. Assault against a household member consists of:

(1) an attempt to commit a battery against a household member; or

(2) any unlawful act, threat or menacing conduct that causes a household member to reasonably believe that [he] the household member is in danger of receiving an immediate battery.

B. Whoever commits assault against a household member is guilty of a petty misdemeanor.

C. The court shall indicate on the record of conviction for assault against a household member whether the conviction is pursuant to Paragraph (1) or (2) of Subsection A of this section. If the conviction is pursuant to Paragraph (1) of Subsection A of this section, the court shall inform the offender that the offender is prohibited from receiving, transporting or possessing firearms pursuant to Paragraph (2) of Subsection A of Section 30-7-16 NMSA 1978 and shall order the offender to transfer any firearms in the offender's possession in accordance with Section 1 of this 2015 act. If the conviction is pursuant to Paragraph (2) of Subsection A of this section, the court shall indicate on the record of conviction whether the offense involved a battery or attempted battery or the threatened use of a firearm. If a conviction pursuant to Paragraph (2) of Subsection A of this section involved a battery or attempted battery, or the threatened use of a firearm, the court shall inform the offender that the offender is prohibited from receiving, transporting or possessing firearms pursuant to Paragraph (2) of Subsection A of Section 30-7-16 NMSA 1978 and shall order the offender to transfer any firearms in the offender's possession in accordance with Section 1 of this 2015 act."

SECTION 3. Section 30-3-15 NMSA 1978 (being Laws 1995, Chapter 221, Section 6, as amended) is amended to read:

"30-3-15. BATTERY AGAINST A HOUSEHOLD MEMBER.--

A. Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.

B. Whoever commits battery against a household member is guilty of a misdemeanor.

C. Upon conviction pursuant to this section, an offender shall be required to participate in and complete a domestic violence offender treatment or intervention program approved by the children, youth and families department pursuant to rules promulgated by the department that define the criteria for such programs.

D. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to this section is suspended or deferred in whole or in part, the period of probation may extend beyond three hundred sixty-four days but may not exceed two years. If an offender violates a condition of probation, the court may impose any sentence that the court could originally have imposed and credit shall not be given for time served by the offender on probation; provided that the total period of incarceration shall not exceed three hundred sixty-four days and the combined period of incarceration and probation shall not exceed two years.

E. The offender shall be prohibited from receiving, transporting or possessing firearms pursuant to Paragraph (2) of Subsection A of Section 30-7-16 NMSA 1978. The court shall inform the offender of the offender's prohibited status and shall order the offender to transfer any firearms in the offender's possession in accordance with Section 1 of this 2015 act."

SECTION 4. Section 30-7-16 NMSA 1978 (being Laws 1981, Chapter 225, Section 1, as amended) is amended to read:

"30-7-16. FIREARMS OR DESTRUCTIVE DEVICES--RECEIPT, TRANSPORTATION OR POSSESSION BY A FELON--PENALTY.--

A. It is unlawful for a [felon] person to receive, transport or possess any firearm or destructive device in this state if the person:

(1) is a felon;

(2) has been convicted of a misdemeanor crime of domestic violence; or

(3) is subject to a domestic violence order of protection.

B. Any person violating the provisions of this section shall be guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act.

C. As used in this section:

(1) "destructive device" means:

(a) any explosive, incendiary or poison gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge of more than four ounces; 4) missile having an explosive or incendiary charge of more than one-fourth ounce; 5) mine; or 6) similar device;

(b) any type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that is generally recognized as particularly suitable for sporting purposes; and

(c) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in this paragraph and from which a destructive device may be readily assembled.

The term "destructive device" does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device;

(2) "domestic violence order of protection" means an order issued pursuant to the Family Violence Protection Act or an equivalent order by any federal, state or local court that:

(a) includes a finding of domestic abuse as defined in Section 40-13-2 NMSA 1978; and

(b) was issued after the restrained party received notice of the proceedings and had an opportunity to be heard;

[(2)] (3) "felon" means a person convicted of a felony offense by a court of the United States or of any state or political subdivision thereof and:

(a) less than ten years have passed since the person completed serving [his] a sentence or period of probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for the felony conviction by the proper authority; and

(3)] (4) "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an [explosion] explosive; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun; and

(5) "misdemeanor crime of domestic violence" means a conviction for a misdemeanor by a federal, state or local court that involves the use or attempted use of force, or the threatened use of a firearm, against a household member as defined in Section 30-3-11 NMSA 1978; provided that:

(a) less than ten years have passed since the person completed serving a sentence or period of probation for the conviction, whichever is later;

(b) the person has not been pardoned for the conviction by the proper authority; and

(c) the person has not had the misdemeanor crime of domestic violence charges dismissed after completing the terms of a deferred sentence."

SECTION 5. Section 30-9-12 NMSA 1978 (being Laws 1975, Chapter 109, Section 3, as amended) is amended to read:

"30-9-12. CRIMINAL SEXUAL CONTACT.--

A. Criminal sexual contact is the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached [his eighteenth birthday] eighteen years of age, or intentionally causing another who has reached [his eighteenth birthday] eighteen years of age to touch one's intimate parts.

B. Criminal sexual contact does not include touching by a psychotherapist on [his] a patient that is:

(1) inadvertent;

(2) casual social contact not intended to be sexual in nature; or

(3) generally recognized by mental health professionals as being a legitimate element of psychotherapy.

C. Criminal sexual contact in the fourth degree consists of all criminal sexual contact perpetrated:

(1) by the use of force or coercion that results in personal injury to the victim;

(2) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons; or

(3) when the perpetrator is armed with a deadly weapon.

D. Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony.

[D.] E. Criminal sexual contact is a misdemeanor when perpetrated with the use of force or coercion.

[E.] F. For the purposes of this section, "intimate parts" means the primary genital area, groin, buttocks, anus or breast.

G. The court shall indicate on the record of conviction for misdemeanor criminal sexual contact whether the offense was committed against a household member as defined in Section 30-3-11 NMSA 1978. If the offense was committed against a household member, the offender shall be prohibited from receiving, transporting or possessing firearms pursuant to Paragraph (2) of Subsection A of Section 30-7-16 NMSA 1978.

The court shall inform the offender of the offender's prohibited status and shall order the offender to transfer any firearms in the offender's possession in the same manner as required by Section 1 of this 2015 act."

SECTION 6. Section 30-20-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 20-1, as amended) is amended to read:

"30-20-1. DISORDERLY CONDUCT.--

A. Disorderly conduct consists of:

[A.] (1) engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct [which] that tends to disturb the peace; or

[B.] (2) maliciously disturbing, threatening or, in an insolent manner, intentionally touching any house occupied by any person.

B. Whoever commits disorderly conduct is guilty of a petty misdemeanor.

C. The court shall indicate on the record of conviction for disorderly conduct whether the offense involved the use or attempted use of force or the threatened use of a deadly weapon against a household member as defined in Section 30-3-11 NMSA 1978. If the offense involved the use or attempted use of force or the threatened use of a deadly weapon against a household member, the offender shall be prohibited from receiving, transporting or possessing firearms pursuant to Paragraph (2) of Subsection A of Section 30-7-16 NMSA 1978.

SECTION 7. Section 40-13-5 NMSA 1978 (being Laws 1987, Chapter 286, Section 5, as amended) is amended to read:

"40-13-5. ORDER OF PROTECTION--CONTENTS--REMEDIES--TITLE TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.--

A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, the court shall enter an order of protection ordering the restrained party to refrain from abusing the protected party or any other household member. The court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:

(1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;

(2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;

(3) order that the restrained party shall not initiate contact with the protected party;

(4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party's property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;

(5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;

(6) order the restrained party to participate in, at the restrained party's expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and

(7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.

B. An order of protection that was issued after the restrained party received notice of the proceedings and had an opportunity to be heard shall prohibit the restrained party from receiving, transporting or possessing firearms pursuant to Paragraph (3) of Subsection A of Section 30-7-16 NMSA 1978 for the period of time that the order is in effect. The order shall inform the restrained party of the restrained party's prohibited status and shall require that the restrained party transfer all firearms in the restrained party's possession to law enforcement or to a federally licensed firearms dealer in accordance with Section 8 of this 2015 act.

[B.] C. The order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both.

[C.] D. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action.

[D.] E. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

[E.] F. No order issued under the Family Violence Protection Act shall affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party's property or the joint or community property of the parties.

[F.] G. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.

[G.] H. An order of protection shall not be issued unless a petition or a counter petition has been filed."

SECTION 8. A new section of the Family Violence Protection Act is enacted to read:

"[NEW MATERIAL] TRANSFER OF FIREARMS BY A PERSON SUBJECT TO AN ORDER OF PROTECTION.--When a court grants an order of protection pursuant to the Family Violence Protection Act that was issued after the restrained party received notice of the proceedings and had an opportunity to be heard, the court shall inform the restrained party that the restrained party is prohibited from receiving, transporting or possessing firearms pursuant to Paragraph (3) of Subsection A of Section 30-7-16 NMSA 1978 and shall order the restrained party to transfer all firearms owned by the restrained party or in the restrained party's possession as follows:

A. the transfer shall be made within twenty-four hours after the restrained party is served with the order to a state or local law enforcement agency or to a federally licensed firearms dealer. A law enforcement agency or federally licensed firearms dealer that takes possession of the firearms shall issue a proof of transfer to the restrained party transferring the firearms. The proof of transfer shall include the name of the restrained party, the date of transfer, whether the transfer is permanent or temporary and the serial number, make and model of all transferred firearms;

B. within forty-eight hours after being served with the order, the restrained party shall either:

(1) file a copy of the proof of transfer with the court that issued the transfer order and attest that all firearms owned by the restrained party or in the restrained party's possession at the time the order was issued have been transferred in accordance with this section and that the restrained party currently has no firearms in the restrained party's possession; or

(2) attest that, at the time the order was issued, the restrained party owned no firearms and had no firearms in the restrained party's possession and that the restrained party currently owns no firearms and has no firearms in the restrained party's possession;

C. at the expiration of the order, the law enforcement agency or federally licensed firearms dealer shall, at the restrained party's request, return any temporarily transferred firearm to the restrained party, unless the order is extended or the restrained party is otherwise prohibited from possessing firearms under state or federal law. Prior to returning any firearm to the restrained party, the law enforcement agency shall conduct an appropriate check of available records and contact the national instant criminal background check system to ensure that the restrained party is no longer prohibited from possessing firearms under state or federal law; and

D. law enforcement agencies and federally licensed firearms dealers may establish policies for the disposition of abandoned firearms and may charge a fee in connection with the storage of any firearm held pursuant to this section. The fee charged by a law enforcement agency may not exceed the cost associated with storing the firearm."

SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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