SB0141

SENATE BILL 141

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Katy Duhigg and Sheryl Williams Stapleton and Gail Chasey

AN ACT

RELATING TO CRIMINAL JUSTICE REFORM; PROVIDING STATEWIDE PROCEDURES FOR IMPOSING SANCTIONS FOR TECHNICAL VIOLATIONS OF PROBATION AND PAROLE; REQUIRING ESCALATING NON-INCARCERATION SANCTIONS BEFORE IMPOSING CARCERAL SENTENCING.

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

SECTION 1. A new section of the Probation and Parole Act is enacted to read:

"[NEW MATERIAL] SANCTIONS FOR TECHNICAL VIOLATIONS.--

A. The adult probation and parole division of the corrections department shall provide for graduated responses to technical violations of supervision conditions in a swift, certain and proportional manner. Before seeking formal resolution in a court pursuant to Section 31-21-15 NMSA 1978 or before the board pursuant to Section 31-21-14 NMSA 1978, the probation and parole officer shall impose graduated sanctions pursuant to this section starting with the non-detention sanctions specified in Subsection B of this section.

B. A probation and parole officer shall determine whether sanctions are necessary for a technical violation and, if they are, may impose graduated non-detention sanctions for a technical violation in the following manner:

(1) for a first violation sanction, up to three days of community service, restrictive curfew, global positioning system monitoring or other non-detention sanction; and

(2) for a second violation sanction, up to five days of community service, restrictive curfew, global positioning system monitoring or other non-detention sanction.

C. After imposing the non-detention sanctions pursuant to Subsection B of this section, the probation and parole officer may pursue detention sanctions. If a probationer declined to enter a waiver of formal resolution pursuant to Section 31-20-5 NMSA 1978 or if a parolee declined to enter a waiver of formal resolution pursuant to Section 31-18-15 NMSA 1978, the probation and parole officer shall promptly report the alleged violation to the court or the board for adjudication and sanctions. If a waiver was given, the probation and parole officer may impose a limited detention sanction not to exceed the following graduated sanctions:

(1) for a third violation sanction, up to three days in jail;

(2) for a fourth violation sanction, up to seven days in jail; and

(3) for a fifth and subsequent violation sanction, formal resolution in a court pursuant to Section 31-21-15 NMSA 1978 for a probationer and formal resolution by the board for a parolee.

D. A probation and parole officer may decline to sanction a technical violation or may impose a lesser sanction than provided in this section. If a violation is not sanctioned, it shall not be counted as a sanction for purposes of progressive sanctions outlined in Subsections B and C of this section. If a probation and parole officer believes that additional detention is necessary or that graduated sanctions have failed, the probation and parole officer shall seek formal resolution of a technical violation in a court pursuant to Section 31-21-15 NMSA 1978 for a probationer or formal resolution by the board for a parolee.

E. If a probationer or parolee fails to complete any part of the community service imposed pursuant to Subsection B of this section, the probationer or parolee shall be detained in a county jail for the remainder of the community service term specified in that subsection.

F. Once sanctions are imposed pursuant to this section, a probationer or parolee shall not be subject to further technical violation sanctions for the same technical violation instance unless the probationer or parolee fails to comply with the sanctions imposed pursuant to this section. This prohibition on cumulative punishment shall also apply to conduct occurring prior to the technical violation, about which the probation and parole officer knew or had reason to know, and that the probation and parole officer did not allege or cite when the probation and parole officer imposed the sanction.

G. To impose non-judicial detention sanctions under this section, the director shall issue a written statement to the jail detaining the probationer or parolee affirming that the adult probation and parole division of the corrections department has complied with Subsections A and B of this section and that this statement shall serve as sufficient warrant for detention of a probationer or parolee. Time served in detention as a non-judicial sanction shall be counted as time served for the period of probation or parole."

SECTION 2. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:

(1) for a first degree felony resulting in the death of a child, life imprisonment;

(2) for a first degree felony for aggravated criminal sexual penetration, life imprisonment;

(3) for a first degree felony, eighteen years imprisonment;

(4) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;

(5) for a second degree felony for a sexual offense against a child, fifteen years imprisonment;

(6) for a second degree felony for sexual exploitation of children, twelve years imprisonment;

(7) for a second degree felony, nine years imprisonment;

(8) for a third degree felony resulting in the death of a human being, six years imprisonment;

(9) for a third degree felony for a sexual offense against a child, six years imprisonment;

(10) for a third degree felony for sexual exploitation of children, eleven years imprisonment;

(11) for a third degree felony, three years imprisonment;

(12) for a fourth degree felony for sexual exploitation of children, ten years imprisonment; or

(13) for a fourth degree felony, eighteen months imprisonment.

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act. The order imposing a period of parole shall indicate whether the defendant voluntarily waives future formal resolution for technical parole violations before the parole board pursuant to Section 1 of this 2021 act. The court shall ensure that the defendant is advised by counsel before deciding whether the defendant waives formal resolution before the court.

D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.

E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

(1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);

(2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);

(3) for a first degree felony, fifteen thousand dollars ($15,000);

(4) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

(5) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

(6) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);

(7) for a second degree felony, ten thousand dollars ($10,000);

(8) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);

(9) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);

(10) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);

(11) for a third or fourth degree felony, five thousand dollars ($5,000); or

(12) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).

F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense, as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

G. No later than October 31 of each year, the

New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

SECTION 3. Section 31-20-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-17, as amended) is amended to read:

"31-20-5. PLACING DEFENDANT ON PROBATION.--

A. When a person has been convicted of a crime for which a sentence of imprisonment is authorized and when the [magistrate, metropolitan or district] court has deferred or suspended sentence, it shall order the defendant to be placed on probation for all or some portion of the period of deferment or suspension if the defendant is in need of supervision, guidance or direction that is feasible for the corrections department to furnish; provided that nothing in this section shall limit the requirements established pursuant to Subsections D and E of Section 66-8-102 NMSA 1978. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978, the total period of probation [for district court] shall not exceed five years and the total period of probation [for the magistrate or metropolitan courts] shall be no longer than the maximum allowable incarceration time for the offense or as otherwise provided by law.

B. The order imposing a period of probation shall indicate whether the defendant voluntarily waives future formal resolution for technical probation violations before the court pursuant to Section 1 of this 2021 act. The court shall ensure that the defendant is advised by counsel before deciding whether the defendant waives formal resolution before the court.

C. The court may designate specific and particular conditions as conditions that warrant a standard violation pursuant to Subsection E of Section 31-21-15 NMSA 1978 for a defendant serving a period of probation under a suspended, deferred or conditional discharge from a plea or conviction that includes either a sex offense as defined in Section 29-11A-3 NMSA 1978 or a serious violent offense as enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978. The court may only order these conditions if it finds by clear and convincing evidence these additional conditions are necessary to ensure public safety or the safety of a particular individual.

[B.] D. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

(1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and

(2) [in the event that] if the defendant violates any condition of that parole, the parole board shall cause [him] the defendant to be brought before it pursuant to the provisions of Section 31-21-14 NMSA 1978 and may make any disposition authorized pursuant to that section and, if parole is revoked, the period of parole served in the custody of a correctional facility shall not be credited as time served on probation."

SECTION 4. Section 31-21-5 NMSA 1978 (being Laws 1978, Chapter 41, Section 1, as amended) is amended to read:

"31-21-5. DEFINITIONS.--As used in the Probation and Parole Act:

A. "probation" means the procedure under which an adult defendant, found guilty of a crime upon verdict or plea, is released by the court without imprisonment under a suspended or deferred sentence and subject to conditions;

B. "parole" means the release to the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board and to its supervision;

C. "institution" means the state penitentiary and any other similar state institution hereinafter created;

D. "board" means the parole board;

E. "director" means the director of the [field services] adult probation and parole division of the corrections department or any employee designated by [him] the director; [and]

F. "adult" means any person convicted of a crime by a district court;

G. "absconding" means that a person under supervision willfully makes the person's whereabouts unknown or willfully fails to report as ordered with a purpose to evade compliance with the person's supervision obligations by making the person's self unavailable for supervision, which may be inferred from surrounding circumstances;

H. "standard violation" means:

(1) absconding;

(2) violating any municipal or county criminal

ordinance or tribal, state or federal criminal law; or

(3) for a sex offender or serious violent offender pursuant to Subsection C of Section 31-20-5 NMSA 1978, any contact with the victim or any violation of a condition designated by the sentencing court as a standard violation; and

I. "technical violation" means any willful violation of conditions of probation or parole supervision that is not a standard violation, including a positive chemical test for alcohol or controlled substance consumption or missing a scheduled supervision appointment."

SECTION 5. Section 31-21-10 NMSA 1978 (being Laws 1980, Chapter 28, Section 1, as amended) is amended to read:

"31-21-10. PAROLE AUTHORITY AND PROCEDURE.--

A. An inmate of an institution who was sentenced to life imprisonment becomes eligible for a parole hearing after the inmate has served thirty years of the sentence. Before ordering the parole of an inmate sentenced to life imprisonment, the board shall:

(1) interview the inmate at the institution where the inmate is committed;

(2) consider all pertinent information concerning the inmate, including:

(a) the circumstances of the offense;

(b) mitigating and aggravating circumstances;

(d) whether the inmate is a habitual offender;

(e) the reports filed under Section

31-21-9 NMSA 1978; and

(f) the reports of such physical and mental examinations as have been made while in an institution;

(3) make a finding that a parole is in the best interest of society and the inmate; and

(4) make a finding that the inmate is able and willing to fulfill the obligations of a law-abiding citizen. If parole is denied, the inmate sentenced to life imprisonment shall again become entitled to a parole hearing at two-year intervals. The board may, on its own motion, reopen any case in which a hearing has already been granted and parole denied.

B. Unless the board finds that it is in the best interest of society and the parolee to reduce the period of parole, a person who was sentenced to life imprisonment shall be required to undergo a minimum period of parole of five years. During the period of parole, the person shall be under the guidance and supervision of the board.

C. An inmate of an institution who was sentenced to life imprisonment without possibility of release or parole is not eligible for parole and shall remain incarcerated for the entirety of the inmate's natural life.

D. Except for certain sex offenders as provided in Section 31-21-10.1 NMSA 1978, an inmate who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a two-year period of parole. An inmate who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in an institution designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the board.

E. Every person while on parole shall remain in the legal custody of the institution from which the person was released, but shall be subject to the orders of the board. The board shall furnish to each inmate as a prerequisite to release under its supervision a written statement of the conditions of parole that shall be accepted and agreed to by the inmate as evidenced by the inmate's signature affixed to a duplicate copy to be retained in the files of the board. If the inmate waived formal resolution of technical parole violations pursuant to Subsection C of Section 31-18-15 NMSA 1978, such waiver shall be noted in the inmate's written statement of conditions. The board shall also require as a prerequisite to release the submission and approval of a parole plan. If an inmate refuses to affix the inmate's signature to the written statement of the conditions of parole or does not have an approved parole plan, the inmate shall not be released and shall remain in the custody of the institution in which the inmate has served the inmate's sentence, excepting parole, until such time as the period of parole the inmate was required to serve, less meritorious deductions, if any, expires, at which time the inmate shall be released from that institution without parole, or until such time that the inmate evidences acceptance and agreement to the conditions of parole as required or receives approval for the inmate's parole plan or both. Time served from the date that an inmate refuses to accept and agree to the conditions of parole or fails to receive approval for the inmate's parole plan shall reduce the period, if any, to be served under parole at a later date. If the district court has ordered that the inmate make restitution to a victim as provided in Section 31-17-1 NMSA 1978, the board shall include restitution as a condition of parole. The board shall also personally apprise the inmate of the conditions of parole and the inmate's duties relating thereto.

F. When a person on parole has performed the obligations of the person's release for the period of parole provided in this section, the board shall make a final order of discharge and issue the person a certificate of discharge.

G. Pursuant to the provisions of Section 31-18-15 NMSA 1978, the board shall require the inmate as a condition of parole:

(1) to pay the actual costs of parole services to the adult probation and parole division of the corrections department for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised parole costs shall not be waived unless the board holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the board waives the defendant's payment of the supervised parole costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the board and the board shall hold an evidentiary hearing to determine whether the waiver should be rescinded; and

(2) to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to the inmate's arrest, prosecution or conviction.

H. The provisions of this section shall apply to all inmates except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act."

SECTION 6. Section 31-21-14 NMSA 1978 (being Laws 1955, Chapter 232, Section 17, as amended) is amended to read:

"31-21-14. [RETURN OF] PAROLE [VIOLATOR] VIOLATIONS.--

A. At any time during release on parole:

(1) the board or the director may issue a warrant for the arrest of the [released prisoner for] parolee to answer a charge of a standard violation [of any of the conditions of release or issue a notice to appear to answer a charge of violation. The notice shall be served personally upon the prisoner]. The warrant shall authorize the [superintendent] warden of the institution from which the [prisoner] parolee was released to return the [prisoner] parolee to the [actual] physical custody of the institution or to any other [suitable] detention facility designated by the board or the director. If the [prisoner] parolee is out of the state, the warrant shall authorize the [superintendent] warden to return [him] the parolee to the state;

[B. The director] (2) a probation and parole officer may arrest the [prisoner] parolee without a warrant or may deputize [any] an officer with the power of arrest to do so by giving [him] the officer a written statement setting forth that the [prisoner] parolee has, in the judgment of the [director, violated the conditions of his release] probation and parole officer, committed a standard violation. Where an arrest is made without a warrant, the [prisoner] parolee shall not be returned to the institution unless authorized by the director or the board [Pending hearing as provided by law upon any charge of violation, the prisoner shall remain incarcerated in the institution];

(3) a probation and parole officer may arrest a parolee without a warrant or may deputize an officer with the power of arrest to do so by giving the officer a written statement that the parolee has, in the judgment of the probation and parole officer, committed a technical violation or a standard violation if the parolee is serving a period of parole stemming from a plea or conviction for a sex offense enumerated in Subsection I of Section 29-11A-3 NMSA 1978, a serious violent offense as enumerated in Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978 or a human trafficking offense as enumerated in Section 30-52-1 NMSA 1978; or

(4) a probation and parole officer may arrest a parolee for a technical or standard violation without a warrant or may deputize an officer with the power of arrest to do so if the probation and parole officer has reason to believe that the parolee poses a flight risk or a danger to the community.

B. Pending hearing as provided by law upon any charge of violation, the prisoner shall remain incarcerated in the institution.

C. Upon arrest and detention for a standard violation, the board shall cause the [prisoner] parolee to be promptly brought before it for a parole revocation hearing on the [parole] standard violation charged [under rules and regulations the board may adopt].

D. If a standard violation is established, the board may continue or revoke the parole, impose detention for a fixed term up to ninety days, which shall be counted as time served under the sentence, or enter any other order as it sees fit.

[D.] E. A [prisoner] parolee for whose return a warrant has been issued shall, if it is found that the warrant cannot be served, be a fugitive from justice.

F. At any time during release on parole, the board or the director may issue a notice to appear to answer a charge of a technical violation consistent with the procedures outlined in Section 1 of this 2021 act. The notice shall be served personally upon the parolee and shall initiate a technical violation process.

G. If a technical violation is established before the board at a technical violation hearing, the sanction for the technical violation shall be commensurate with the seriousness of the violation and not a punishment for the offense for which the parolee was convicted, and the board shall:

(1) inquire whether the probation and parole officer supervising the parolee followed the graduated sanctions system provided in Section 1 of this 2021 act; and

(2) continue the parole term and impose a non-detention sanction, including community service, a behavioral health or mental health treatment program or a fixed term in a community corrections program pursuant to the Adult Community Corrections Act, which term shall be credited toward the sentence originally imposed, and the parolee shall be placed back on parole; or

(3) determine that detention shall be imposed, and the board may impose a term of detention in a county jail that shall not exceed thirty days unless the board articulates findings and concludes that additional detention is necessary for the parolee's rehabilitation or public safety.

H. If it appears that [he] the parolee has [violated the provisions of his release] committed a violation, the board shall determine whether the time from the date of the violation to the date of [his] the parolee's arrest, or any part of it, shall be counted as time served under the sentence."

SECTION 7. Section 31-21-15 NMSA 1978 (being Laws 1963, Chapter 301, Section 13, as amended by Laws 2016, Chapter 27, Section 1 and by Laws 2016, Chapter 31, Section 1) is amended to read:

"31-21-15. [RETURN OF] PROBATION [VIOLATOR] VIOLATIONS.--

A. At any time during probation:

(1) the court may issue a warrant for the arrest of a probationer for a standard violation [of any of the conditions of release]. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court;

(2) the court may issue a notice to appear to answer a charge of a technical or standard violation. The notice shall be personally served upon the probationer; [or]

(3) the director may arrest a probationer without warrant or may deputize any officer with power of arrest to do so by giving the officer a written statement setting forth that the probationer has, in the judgment of the director, [violated the conditions] committed a standard violation of the probationer's release. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer. Upon the probationer's arrest and detention, the director shall immediately notify the court and submit in writing a report showing in what manner the probationer has violated the conditions of release; or

(4) a probation and parole officer may arrest a probationer for a technical or standard violation without a warrant or may deputize an officer with the power of arrest to do so if the probation and parole officer has reason to believe the probationer poses a flight risk or a danger to the community.

[B. The court shall then hold a hearing, which may be informal, on the violation charged. If the violation is established, the court may continue the original probation or revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978 or require the probationer to serve the balance of the sentence imposed or any lesser sentence. If imposition of sentence was deferred, the court may impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

C. If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that the probationer has violated the provisions of the probationer's release, the court shall determine whether the time from the date of violation to the date of the probationer's arrest, or any part of it, shall be counted as time served on probation. For the purposes of this subsection, "probationer" means a person convicted of a crime by a district, metropolitan, magistrate or municipal court.

D. The board shall budget funds to cover expenses of returning probationers to the court. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state.]

B. If it is found that a warrant for the return of a probationer cannot be served, the probationer shall be a fugitive from justice. After hearing upon return, if it appears that the probationer has violated the provisions of the probationer's release, the court shall determine whether the time from the date of violation to the date of the probationer's arrest, or any part of it, shall be counted as time served on probation.

C. The board shall budget funds to cover expenses of returning probationers to the court. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state.

D. Upon the probationer's arrest and detention or service of a notice to appear for a violation:

(1) the director shall immediately notify the court and submit in writing a report describing the manner in which the probationer has violated the conditions of release; and

(2) the court shall hold a probation revocation hearing on the violation charged.

E. If a standard violation is established, the court may continue the original probation or revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978 or require the probationer to serve the balance of the sentence imposed or any lesser sentence and credit shall be given for time served on probation. If imposition of sentence was deferred or suspended, the court may impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

F. If a technical violation is established before the court at a technical violation hearing, the sanction for the technical violation shall be commensurate with the seriousness of the violation and not a punishment for the offense for which the probationer was placed on probation, and the court shall:

(1) inquire whether the probation and parole officer supervising the probationer followed the graduated sanctions system provided in Section 1 of this 2021 act; and

(2) continue the probation term and impose a non-detention sanction, including community service, a behavioral health or mental health treatment program or a fixed term in a community corrections program pursuant to the Adult Community Corrections Act, which term shall be credited toward the sentence originally imposed, and the defendant shall be placed back on probation; or

(3) determine whether detention shall be imposed to enforce the purpose of probation pursuant to Subsection A of Section 31-20-5 NMSA 1978, and if the court determines that detention shall be imposed, the court may impose a term of detention in a county jail that shall not exceed thirty days unless the court articulates findings and concludes that additional detention is necessary for the probationer's rehabilitation or public safety."