45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO CRIMINAL LAW; INCREASING THE PENALTY FOR THE CRIMINAL OFFENSE OF BATTERY AGAINST A HOUSEHOLD MEMBER; PROVIDING FOR A TWENTY-FOUR HOUR HOLD ON OFFENDERS; CREATING A FUND; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

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

Section 1. Section 30-3-15 NMSA 1978 (being Laws 1995, Chapter 221, Section 6) is amended to read:

"30-3-15. BATTERY AGAINST A HOUSEHOLD MEMBER.--

A. Battery against a household member consists of the unlawful, intentional touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.

B. Whoever commits battery against a household member is guilty of a [petty] misdemeanor."

Section 2. A new section of the Crimes Against Household Members Act is enacted to read:

"[NEW MATERIAL] TWENTY-FOUR HOUR HOLD FOLLOWING ARREST.--Following an arrest for an offense pursuant to the Crimes Against Household Members Act, the offender may be held for a period of not less than twenty-four hours following the offender's arrest. The offender shall be given a bail hearing, in accordance with the provisions of Article 2, Section 13 of the constitution of New Mexico, and shall be eligible for bail following the twenty-four hour hold period."

Section 3. Section 40-13-6 NMSA 1978 (being Laws 1987, Chapter 286, Section 6, as amended) is amended to read:

"40-13-6. SERVICE OF ORDER--DURATION--PENALTY--REMEDIES NOT EXCLUSIVE.--

A. An order of protection granted under the Family Violence Protection Act shall be filed with the clerk of the court, and a copy shall be sent by the clerk to the local law enforcement agency. The order shall be personally served upon the respondent, unless he or his attorney was present at the time the order was issued. The order shall be filed and served without cost to the petitioner.

B. An order of protection granted by the court involving custody or support shall be effective for a fixed period of time not to exceed six months. The order may be extended for good cause upon motion of the petitioner for an additional period of time not to exceed six months. Injunctive orders shall continue until modified or rescinded upon motion by either party or until the court approves a subsequent consent agreement entered into by the petitioner and the respondent.

C. A peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an order pursuant to this section.

D. State courts shall give full faith and credit to tribal court orders of protection and orders of protection issued by courts of other states. A protection order issued by a state or tribal court against one who has petitioned, filed a complaint or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if:

(1) no cross or counter petition, complaint or other written pleading was filed seeking such a protection order; or

(2) a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.

E. A person convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement. Following an arrest for violation of an order of protection granted by a court pursuant to the Family Violence Protection Act, the offender may be held for a period of not less than twenty-four hours following the offender's arrest. The offender shall be given a bail hearing, in accordance with the provisions of Article 2, Section 13 of the constitution of New Mexico, and shall be eligible for bail following the twenty-four hour hold period.

F. In addition to any other punishment provided in the Family Violence Protection Act, the court shall order a person convicted to make full restitution to the party injured by the violation of an order of protection and order the person convicted to participate in and complete a program of professional counseling, at his own expense, if possible.

G. In addition to charging the person with violating an order of protection, a peace officer shall file all other possible criminal charges arising from an incident of domestic abuse when probable cause exists.

H. The remedies provided in the Family Violence Protection Act are in addition to any other civil or criminal remedy available to the petitioner."

Section 4. [NEW MATERIAL] FUND CREATED--ADMINISTRATION--PURPOSE.--

A. The "domestic violence education, victim protection and offender treatment fund" is established in the state treasury. The fund shall be administered by the first judicial district attorney's office.

B. All balances in the domestic violence education, victim protection and offender treatment fund are appropriated to the first judicial district attorney's office for the following purposes:

(1) to educate the public regarding the dangers of domestic violence and the availability of resources for victims of domestic violence;

(2) to provide resources for victims of domestic violence and children who witness domestic violence, including counseling services and shelter for victims of domestic violence and children who witness domestic violence; and

(3) to provide treatment for an offender who is convicted of committing assault or battery against a household member, as a condition of probation for the offender.

C. The first judicial district court may contract for the provision of domestic violence education programs, counseling and shelter services for victims of domestic violence or children who witness domestic violence and treatment for offenders convicted of committing assault or battery against a household member.

D. Payments from the domestic violence education, victim protection and offender treatment fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers issued by the district attorney for the first judicial district.

E. Any balance remaining in the domestic violence education, victim protection and offender treatment fund at the end of any fiscal year shall not revert to the general fund.

Section 5. APPROPRIATION.--One million dollars ($1,000,000) is appropriated from the general fund to the domestic violence education, victim protection and offender treatment fund for expenditure in fiscal year 2002 and subsequent fiscal years to carry out the purposes of the domestic violence education, victim protection and offender treatment fund. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.