44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CRIMES; CHANGING THE ELEMENTS OF THE OFFENSE OF CRIMINAL DAMAGE TO PROPERTY; INCREASING PENALTIES; PROVIDING FOR FORFEITURE AND SEIZURE OF PROPERTY; AMENDING A SECTION OF THE NMSA 1978.

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

Section 1. Section 30-15-1 NMSA 1978 (being Laws 1963,

Chapter 303, Section 15-1) is amended to read:

"30-15-1. CRIMINAL ENTRY UPON AND DAMAGE TO PROPERTY.--

A. Criminal damage to property consists of entering upon, vandalizing, firing a weapon upon or intentionally damaging any real or personal property of another without the consent of the owner of the property.

[Whoever commits criminal damage to property is guilty of a petty misdemeanor, except that when the damage to the property amounts to more than one thousand dollars ($1,000), he is guilty of a fourth degree felony.]

B. As used in this section:

(1) "personal property" includes but is not limited to motor vehicles, trailers, equipment, improvements, furniture, fixtures, campers, trucks, buses, motor homes, livestock, pets and unattached outbuildings;

(2) "real property" includes but is not limited to land, lots, apartments, commercial buildings, stores, industrial buildings, single-family dwellings and any structures affixed to the land, including fences, lawns, crops and water facilities; and

(3) "vandalism" includes but is not limited to damage to or destruction of real or personal property, graffiti, harm or impairment to real or personal property, or interfering with or harming the constructive use or peaceful enjoyment of real or personal property that the offender has entered upon or damaged.

C. Whoever commits criminal damage to property when the damage to the property is one thousand dollars ($1,000) or less is guilty of a petty misdemeanor and shall be required to perform at least sixty hours of court-ordered community service. If a person is convicted a second time for a violation of this section within a twenty-four-month period following the first conviction, the person is guilty of a misdemeanor and shall be required to perform at least one hundred hours of court-ordered community service and pay a fine of not less than two thousand dollars ($2,000).

D. Whoever commits criminal damage to property when the damage to the property is more than one thousand dollars ($1,000) is guilty of a fourth degree felony.

E. In addition to criminal penalties set forth in this subsection, a person who commits criminal damage to property shall be required to provide restitution and pay punitive damages to the owner of the real or personal property. A conviction for committing criminal damage to property shall create a conclusive presumption that the offender damaged the owner of the real or personal property, including the owner's peaceful enjoyment of or constructive use of the property.

F. Any vehicle, tool or equipment used to commit criminal damage to property is subject to forfeiture. Property subject to forfeiture under this section may be seized by a law enforcement officer upon an order of the district court in the county having jurisdiction over the offense. Seizure without a court order may occur if:

(1) the seizure is incident to an arrest; or

(2) the law enforcement officer has probable cause to believe that the property was used to commit criminal damage to property.

G. In the event of seizure pursuant to this section, proceedings shall be instituted within thirty days from the date of seizure. A proceeding brought pursuant to this section shall be in rem. The claim shall not be filed against the owner or any other person and shall be filed only as a civil case. Property taken or detained pursuant to the provisions of this section shall not be subject to replevin, but is deemed to be in the custody of the agency employing the enforcing law enforcement officer, subject only to the orders and decrees of the district court. When property is seized pursuant to this section, the agency seizing it shall remove the property to a place designated by the agency for disposition in accordance with law. Property forfeited due to a conviction for committing criminal damage to property shall be sold at public auction pursuant to a court order. The proceeds of the court-ordered sale of forfeited property shall be used to pay restitution to the victims of the criminal acts. If any proceeds remain after payment of restitution, the proceeds shall be forwarded to the state treasurer for credit to the crime victims reparation fund.

H. A conviction pursuant to the provisions of this section shall not preclude any civil action that might be brought under New Mexico law."