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(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to HB182

SOURCES OF INFORMATION

LFC files

Department of Public Safety

Administrative Office of the Courts

Criminal and Juvenile Justice Coordinating Council

SUMMARY

Synopsis of HJC Amendment

SB 231/aHJC inserts on the following subsection on page 18: "D. "Firearm" means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosion; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun."

Synopsis of Bill

HB 231 provides for the detention of a child who possesses a firearm on school premises, and enacts a section of the New Mexico Children's Code. If a school administrator or employee has reasonable cause to believe that a child is in or has been in possession of a firearm on school premises, they are to immediately report the incident to a law enforcement agency and to the Children Youth and Families Department (CYFD).

Upon receiving the report, the law enforcement agency shall conduct an investigation to determine if probable cause exists behind the allegation of the child possessing a firearm on school premises.

If the law enforcement agency determines probable cause, the child shall be taken into custody immediately and delivered to a child detention facility licensed by the department. The child shall be detained, pending a detention hearing, as provided by New Mexico State Statute.

Significant Issues

The Administrative Office of the Court's (AOC) reports the judiciary will be impacted as well as detention facilities. There will be overcrowding, due to children being held for up to 72 hours pending detention hearings. If the children are detained, there will be shorter timeliness for adjudication and disposition. The court will be required to hold more hearings to comply with the new provision of this bill.

The effective date of this act is July 1, 1999.

DPS reports the significant issues presented by this proposed legislation are its conflicts with existing Children's Code provisions and the technical issues presented by an apparent drafting error on lines 16 to 17 of page 2.

FISCAL IMPLICATIONS

AOC reports it will cost the judicial system $400 for statewide update, distribution, and documentation of statutory changes. Any additional impact on the judiciary would be proportional to the enforcement of this law. New laws, amendments to existing laws, and new hearings have the potential to increase caseloads in the courts, thus requiring additional resources to handle the increase. The increase workload would include not only initial case processing and judicial time, but also tracking cases to completion, including probation and compliance.

The Department of Public Safety (DPS) reports it is unknown what the fiscal impact on the agency would be; however, it is anticipated there would be a fiscal impact, because it would require state police officers as law enforcement officers to in every instance take juveniles that they have probable cause to believe to be in possession of or have been in possession of a firearm on school premises into custody and transport them to a detention facility. Similarly, it is anticipated there will be a similar unknown impact on the entire criminal justice system. It should be noted this bill carries no appropriation with it to offset this fiscal impact.

The Criminal and Juvenile Justice Coordinating Council (CJJCC) reports the bill clearly has a fiscal impact for detention facilities, that must hold any children detained under HB 231, and for children's courts that must hold detention hearings and probable cause hearings. There are no estimates of the number of children unlawfully taking firearms onto school property, and of the number of discoveries of such children by school personnel. Thus, it is impossible to predict the number of times detentions and subsequent hearings will occur.

However, a 1997 study by the CJJCC of firearms among serious delinquents in New Mexico found that keeping or carrying guns at school is not frequent. Only 1.1% of juvenile delinquents surveyed thought that kids keep guns at school, and only 5.5% thought that kids carry guns at school. In addition, both juvenile delinquents that were surveyed and criminal justice professionals that were interviewed felt that schools do quite a lot to monitor the unlawful presence of firearms - certainly more than either families or the police - thus providing a greater disincentive for juveniles to carry guns on school premises. Therefore, the incidence of unlawful carrying of weapons on school premises is likely to be quite low.

ADMINISTRATIVE IMPLICATIONS

AOC indicates there is an administrative impact on the court resulting from added judicial time needed to dispose of these cases because of the strict time limits provided under the New Mexico Children's Code. Also, any additional impact on the judiciary would be proportional to the enforcement of this law. New laws, amendments to existing laws, and new hearings have the potential to increase caseloads in the courts, thus requiring additional resources to handle the increase. The increase workload would include not only initial case processing and judicial time, but also tracking cases to completion, including probation and compliance.

DUPLICATION, CONFLICT, COMPANIONSHIP OR RELATIONSHIP

The Attorney General reports the amendment defines "firearm" in a manner consistent with existing law regarding the prohibition of possession of firearms by felons. See 30-7-16C(3), NMSA 1978 (Repl 1994). This definition includes specific parts of a weapon and modified weapons.

HB182 and the Children's Code. House Bill 182 is legislation which is designed at preserving the nuclear family and attempting to resolve problems involving children between the parents and the children.

DPS reports the Children Code appears to be in conflict with the proposed legislation in the following sections: Section 32A-1-15 (Which sets forth the release or delivery from custody to parents/guardians rather than incarceration in a detention facility); Section 32A-2-9 (Requires the Children's Court attorney after consultation with probation services to determine that filing of a delinquency petition is in the best interest of the public and the child. This would be circumvented by the proposed legislation); Section 32A-2-11 (Which currently governs the release for delivery of children from custody to either their parents or to a detention facility only allowing them to be turned over to a detention facility when the criteria met in Section 32A-2-11 has been met which this proposed legislation does not seek to amend), as well as, Section 32A-2-12 (Which governs where children, pending court hearings on delinquency, can be placed pending their delinquency hearings. It should also be noted that Section 32A-2-13 requires a probable cause hearing by a judge within 48 hours when a child who has been taken into custody is not released but detained.)

TECHNICAL ISSUES

DPS reports there appears to be a drafting error on line 16 and 17 of page 2 of the proposed legislation. The language after the comma on line 16 and continuing onto line 17; "pending a detention facility," appears to be a typographical error, which should be deleted from the proposed legislation.

OTHER SUBSTANTIVE ISSUES

The State Department of Education reports Section 32A-2-10, NMSA sets forth alternative release and delivery provisions to detention for children taken in custody for delinquent acts. Section 32A-2-11 NMSA 1978 sets forth the criteria for the detention of children taken into custody for delinquent acts. Consideration should be given as to whether the provisions of this bill would eliminate the determination of whether immediate detention is in the best interests of the children taken into custody pursuant to the requirements of this bill.

The Attorney General reports the bill, if enacted, requires detention of a juvenile found in possession of a firearm on school grounds, and removes discretion and case by case consideration of detention options by the juvenile probation authorities. Current law leaves juvenile detention determination to probation authorities. This bill initiates the legislation of mandatory detention for individual crimes.

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