0001|                            HOUSE BILL 107
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                             LISA L. LUTZ
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO CIVIL LAW; ENACTING THE DRUG TRAFFICKER LIABILITY
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0012|     ACT; PROVIDING FOR LEGAL ACTIONS BY CERTAIN PERSONS TO RECOVER
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0013|     DAMAGES FROM DRUG TRAFFICKERS. 
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|         Section 1.  SHORT TITLE.--This act may be cited as the
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0017|     "Drug Trafficker Liability Act". 
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0018|         Section 2.  DEFINITIONS.--As used in the Drug Trafficker
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0019|     Liability Act:
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0020|               A.  "controlled substance" means a "controlled
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0021|     substance", a "counterfeit substance" or a "controlled
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0022|     substance analog" as defined in Section 30-31-2 NMSA 1978;
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0023|               B.  "illegal user" means a person who acquires a
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0024|     controlled substance from a person who traffics in controlled
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0025|     substances;
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0001|               C.  "traffic" means the illegal distribution, sale
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0002|     or possession with the intent to distribute of a controlled
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0003|     substance; and
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0004|               D.  "trafficker" means a person who traffics.
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0005|         Section 3.  CAUSE OF ACTION- PRESUMPTION OF INJURY.--
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0006|               A.  A person other than an illegal user may recover
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0007|     damages from an illegal user's trafficker for an injury that
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0008|     is proximately caused by an illegal user's use of a controlled
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0009|     substance.
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0010|               B.  An illegal user may recover damages from a
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0011|     trafficker for an injury that is proximately caused by the
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0012|     illegal user's use of a controlled substance if:
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0013|                    (1)  prior to filing the action, the illegal
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0014|     user discloses to a law enforcement authority the identity of
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0015|     the trafficker;
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0016|                    (2)  prior to filing the action, the illegal
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0017|     user has not used a controlled substance for thirty days; and 
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0018|                    (3)  the illegal user does not use a
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0019|     controlled substance during the pendency of the action.     
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0020|               C.  A trafficker is presumed to have injured the
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0021|     plaintiff and to have acted willfully and wantonly if the
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0022|     plaintiff is:
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0023|                    (1)  a parent, legal guardian, child, spouse
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0024|     or sibling of the illegal user;
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0025|                    (2)  a person whose mother was the illegal
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0001|     user while the person was in utero;
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0002|                    (3)  the illegal user's employer;
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0003|                    (4)  a person that financially supports or
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0004|     provides unreimbursed services to or on behalf of the illegal
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0005|     user; or
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0006|                    (5)  a neighbor who proves the trafficker's
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0007|     trafficking caused a decline in the value of the neighbor's
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0008|     property in the neighborhood of the illegal user.
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0009|               D.  The cause of action established by the Drug
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0010|     Trafficker Liability Act is in addition to and not in lieu of
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0011|     any other cause of action available to a plaintiff. 
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0012|         Section 4.  PRESUMPTIONS--EFFECT OF CRIMINAL DRUG
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0013|     CONVICTION.--
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0014|               A.  If a person has been convicted of trafficking
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0015|     in a controlled substance pursuant to Section 30-31-20 NMSA
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0016|     1978, that person is presumed to have trafficked in a
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0017|     controlled substance pursuant to the Drug Trafficker Liability
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0018|     Act.  This presumption is rebuttable.
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0019|               B.  A person convicted of violating the Controlled
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0020|     Substances Act or the federal Comprehensive Drug Abuse
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0021|     Prevention and Control Act of 1970 by trafficking in a
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0022|     controlled substance to an illegal user is estopped from
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0023|     denying trafficking in a controlled substance.  The conviction
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0024|     is also prima facie evidence of the person's trafficking in a
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0025|     controlled substance during the two years preceding the date
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0001|     of an act giving rise to the conviction. 
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0002|               C.  The absence of a conviction of a person against
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0003|     whom recovery is sought does not bar an action against that
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0004|     person. 
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0005|         Section 5.  DAMAGES.--
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0006|               A.  A person, other than an illegal user, who is
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0007|     entitled to a recovery pursuant to the Drug Trafficker
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0008|     Liability Act may recover the following:
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0009|                    (1)  economic or noneconomic and exemplary
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0010|     damages;
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0011|                    (2)  any pecuniary or nonpecuniary loss
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0012|     proximately caused by an illegal user's use of a controlled
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0013|     substance; and
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0014|                    (3)  reasonable attorney fees and costs.
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0015|               B.  An illegal user entitled to recovery under the
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0016|     Drug Trafficker Liability Act may recover the following:
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0017|                    (1)  economic damages;
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0018|                    (2)  any pecuniary loss proximately caused by
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0019|     an illegal user's use of a controlled substance; and
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0020|                    (3)  reasonable attorney fees and costs. 
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0021|         Section 6.  COMPARATIVE NEGLIGENCE.--An action by an
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0022|     illegal user pursuant to the Drug Trafficker Liability Act is
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0023|     governed by the principles of comparative negligence.
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0024|     Negligence shall not be attributed to a plaintiff who is not
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0025|     an illegal user, unless that plaintiff willfully and knowingly
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0001|     gave the illegal user the controlled substance or money for
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0002|     its purchase. 
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0003|         Section 7.  ATTACHMENT--PROPERTY SUBJECT TO LEVY.--
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0004|               A.  After commencing an action under the Drug
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0005|     Trafficker Liability Act, a plaintiff may seek a writ of
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0006|     attachment by filing a motion supported by an affidavit
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0007|     setting forth specific facts showing all of the following:
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0008|                    (1)  a description of the injury claimed and a
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0009|     statement that the affiant in good faith believes that the
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0010|     defendant is liable in a stated amount;
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0011|                    (2)  the defendant is subject to the judicial
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0012|     jurisdiction of the state; and 
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0013|                    (3)  after diligent effort, the plaintiff
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0014|     cannot serve the defendant with process.
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0015|               B.  If an attachment action is instituted, a
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0016|     defendant is entitled to an immediate hearing.  Attachment may
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0017|     be lifted if the defendant demonstrates that the assets will
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0018|     be available for a potential award or if the defendant posts a
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0019|     bond sufficient to cover a potential award.
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0020|               C.  A person against whom a judgment has been
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0021|     rendered under the Drug Trafficker Liability Act is not
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0022|     eligible to exempt any property from process to levy or
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0023|     process to execute on the judgment.  Unless the jury, or the
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0024|     court if there is no jury, specifically finds otherwise, the
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0025|     actions for which a person is found liable under the Drug
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0001|     Trafficker Liability Act are willful and malicious, and the
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0002|     judgment is not subject to discharge under federal bankruptcy
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0003|     law.
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0004|               D.  An asset shall not be used to satisfy a
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0005|     judgment under the Drug Trafficker Liability Act if that asset
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0006|     is named in or has been seized for a forfeiture action by the
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0007|     state or the United States before a plaintiff commences an
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0008|     action under that act unless the asset is released after the
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0009|     forfeiture action or is released by the agency that seized the
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0010|     asset.
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0011|         Section 8.  ACCRUAL OF CAUSE OF ACTION--TOLLING OF STATUTE
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0012|     OF LIMITATIONS.--
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0013|               A.  Except as otherwise provided in this section, a
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0014|     cause of action accrues under the Drug Trafficker Liability
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0015|     Act when a person who may recover has reason to know of the
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0016|     harm and that trafficking in a controlled substance is the
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0017|     cause of the harm.  
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0018|               B.  The statute of limitations is tolled while the
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0019|     person is incapacitated by the use of a controlled substance
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0020|     to the extent that the person cannot reasonably be expected to
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0021|     seek recovery under the Drug Trafficker Liability Act or as
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0022|     otherwise provided by law.
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0023|               C.  A person may bring an action for an injury
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0024|     pursuant to the Drug Trafficker Liability Act within six years
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0025|     of the date the action accrues.
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0001|         Section 9.  PROSECUTIONS--STAYS.--
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0002|               A.  A prosecuting attorney may represent the state
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0003|     or a political subdivision of the state in an action brought
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0004|     pursuant to the provisions of the Drug Trafficker Liability
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0005|     Act.
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0006|               B.  On motion by a governmental agency involved in
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0007|     a controlled substance investigation or prosecution, an action
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0008|     brought pursuant to the Drug Trafficker Liability Act shall be
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0009|     stayed until the completion of the criminal investigation or
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0010|     prosecution that gave rise to the motion for a stay of the
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0011|     action.
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0012|               C.  An action shall not be brought pursuant to the
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0013|     Drug Trafficker Liability Act against a law enforcement
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0014|     officer or agency, or a person acting in good faith at the
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0015|     direction of a law enforcement officer or agency, for
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0016|     participation in illegal marketing of a controlled substance,
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0017|     if that participation is in the furtherance of an official
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0018|     investigation.
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0019|         Section 10.  SEVERABILITY.--If any part of the Drug
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0020|     Trafficker Liability Act is held invalid, the remainder or its
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0021|     application to other situations or persons shall not be
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0022|     affected.
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0023|         Section 11.  EFFECTIVE DATE.--The effective date of the
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0024|     provisions of this act is July 1, 1998. 
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0025|                            - 7 -
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