SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 513

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

AN ACT

RELATING TO DOMESTIC VIOLENCE; ADDING DEFINITIONS OF "SUFFOCATION" AND "STRANGULATION" TO THE FAMILY VIOLENCE PROTECTION ACT, THE CRIMES AGAINST HOUSEHOLD MEMBERS ACT AND THE ABUSE AND NEGLECT ACT; CLARIFYING THAT THE CRIME OF AGGRAVATED BATTERY AGAINST A HOUSEHOLD MEMBER MAY BE COMMITTED BY SUFFOCATION OR STRANGULATION.

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

     SECTION 1. Section 30-3-11 NMSA 1978 (being Laws 1995, Chapter 221, Section 2, as amended) is amended to read:

     "30-3-11. DEFINITIONS.--As used in the Crimes Against Household Members Act:

          A. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, a co-parent of a child or a person with whom a person has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for the purposes of the Crimes Against Household Members Act; [and]

          B. "continuing personal relationship" means a dating or intimate relationship;

          C. "strangulation" means the unlawful touching or application of force to another person's neck or throat with intent to injure that person, the result of which impedes the person's normal breathing or blood circulation; and

          D. "suffocation" means the unlawful touching or application of force that blocks the nose or mouth of another person with intent to injure that person, the result of which impedes the person's normal breathing or blood circulation."

     SECTION 2. Section 30-3-16 NMSA 1978 (being Laws 1995, Chapter 221, Section 7, as amended) is amended to read:

     "30-3-16. AGGRAVATED BATTERY AGAINST A HOUSEHOLD MEMBER.--

          A. Aggravated battery against a household member consists of the unlawful touching or application of force to the person of a household member with intent to injure that person or another.

          B. Whoever commits aggravated battery against a household member by inflicting an injury to that person that is not likely to cause death or great bodily harm, but that does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor.

          C. Whoever commits aggravated battery against a household member by inflicting strangulation or suffocation is guilty of a fourth degree felony.

          [C.] D. Whoever commits aggravated battery against a household member by inflicting great bodily harm or doing so with a deadly weapon or doing so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony.

          [D.] E. Upon conviction pursuant to Subsection B of 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.

          [E.] F. Notwithstanding any provision of law to the contrary, if a sentence imposed pursuant to the provisions of Subsection B of 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."

     SECTION 3. 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 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] D 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] is 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 4. Section 32A-4-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 96, as amended) is amended to read:

     "32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act:

          A. "abandonment" includes instances when the parent, without justifiable cause:

                (1) left the child without provision for the child's identification for a period of fourteen days; or

                (2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:

                     (a) three months if the child was under six years of age at the commencement of the three-month period; or

                     (b) six months if the child was over six years of age at the commencement of the six-month period;

          B. "abused child" means a child:

                (1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian;

                (2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian;

                (3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian;

                (4) whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or

                (5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child;

          C. "aggravated circumstances" includes those circumstances in which the parent, guardian or custodian has:

                (1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;

                (2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;

                (3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or

                (4) had parental rights over a sibling of the child terminated involuntarily;

          D. "great bodily harm" means an injury to a person that creates a high probability of death, that causes serious disfigurement or that results in permanent or protracted loss or impairment of the function of a member or organ of the body;

          E. "neglected child" means a child:

                (1) who has been abandoned by the child's parent, guardian or custodian;

                (2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them;

                (3) who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm;

                (4) whose parent, guardian or custodian is unable to discharge that person's responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity; or

                (5) who has been placed for care or adoption in violation of the law; provided that nothing in the Children's Code shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof is for that reason alone a neglected child within the meaning of the Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code;

          F. "physical abuse" includes but is not limited to any case in which the child suffers strangulation or suffocation, and any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and:

                (1) there is not a justifiable explanation for the condition or death;

                (2) the explanation given for the condition is at variance with the degree or nature of the condition;

                (3) the explanation given for the death is at variance with the nature of the death; or

                (4) circumstances indicate that the condition or death may not be the product of an accidental occurrence;

          G. "sexual abuse" includes but is not limited to criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;

          H. "sexual exploitation" includes but is not limited to:

                (1) allowing, permitting or encouraging a child to engage in prostitution;

                (2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or

                (3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law; [and]

          I. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978;

          J. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

          [I.] K. "transition plan" means an individualized written plan for a child, based on the unique needs of the child, that outlines all appropriate services to be provided to the child to increase independent living skills. The plan shall also include responsibilities of the child, and any other party as appropriate, to enable the child to be self-sufficient upon emancipation."

     SECTION 5. Section 40-13-2 NMSA 1978 (being Laws 1987, Chapter 286, Section 2, as amended) is amended to read:

     "40-13-2. DEFINITIONS.--As used in the Family Violence Protection Act:

          A. "continuing personal relationship" means a dating or intimate relationship;

          B. "co-parents" means persons who have a child in common, regardless of whether they have been married or have lived together at any time;

          C. "court" means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;

          D. "domestic abuse":

                (1) means an incident of stalking or sexual assault whether committed by a household member or not;

                (2) means an incident by a household member against another household member consisting of or resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) bodily injury or assault;

                     (d) a threat causing imminent fear of bodily injury by any household member;

                     (e) criminal trespass;

                     (f) criminal damage to property;

                     (g) repeatedly driving by a residence or work place;

                     (h) telephone harassment;

                     (i) harassment; [or]

                     (j) strangulation;

                     (k) suffocation; or

                     [(j)] (l) harm or threatened harm to children as set forth in this paragraph; and

                (3) does not mean the use of force in self-defense or the defense of another;

          E. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;

          F. "mutual order of protection" means an order of protection that includes provisions that protect both parties;

          G. "order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

          H. "protected party" means a person protected by an order of protection; [and]

          I. "restrained party" means a person who is restrained by an order of protection;

          J. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

          K. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978."

     SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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