SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 84

56th legislature - STATE OF NEW MEXICO - first session, 2023

AN ACT

RELATING TO CRIMINAL JUSTICE; LIMITING INCARCERATION FOR TECHNICAL VIOLATIONS OF PROBATION AND PAROLE; ALPHABETIZING DEFINITIONS.

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

     SECTION 1. 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. "adult" means a person convicted of a crime by a district court;

          B. "board" means the parole board;

          C. "director" means the director of the adult probation and parole division of the corrections department or any employee designated by the director;

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

          E. "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;

          [A.] F. "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 division of the corrections department or any employee designated by him; and

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

          G. "standard violation of probation" or "standard violation of parole" means any violation not constituting a technical violation; and

          H. "technical violation of probation" or "technical violation of parole" means a violation of a condition of probation or parole that does not either create a threat to the probationer or parolee or others or does not constitute a new criminal charge."

     SECTION 2. 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.--

          A. At any time during release on parole, the board or the director may issue a warrant for the arrest of the [released prisoner] parolee for [violation of any of the conditions of release] a standard violation of parole or issue a notice to appear to answer a charge of any violation. The notice shall be served personally upon the [prisoner] parolee. 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 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. For a technical violation of parole, the director shall issue a notice to appear served personally upon the parolee unless the director authorizes arrest based on a flight risk or danger to the community.

          B. The director may arrest the [prisoner] parolee without a warrant or may deputize [any] an officer with 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] committed a standard violation of parole and the parolee presents a flight risk or danger to the community. 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] a charge of a standard violation of parole, the [prisoner] parolee presenting a flight risk or danger to the community shall remain incarcerated in the institution.

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

          D. If the violation of parole is established, the board may continue or revoke the parole and impose non-detention sanctions or a maximum of ninety days of incarceration or enter any other order as it sees fit; provided that the sanction shall be commensurate with the seriousness of the violation and not a punishment for the offense of conviction, and the board:

                (1) shall not impose a sanction of more than three days of community service, restrictive curfew, behavioral health treatment or other non-detention sanction for a first technical violation of parole;

                (2) shall not impose a sanction of more than five days of community service, restrictive curfew, behavioral health treatment or other non-detention sanction for a second technical violation of parole;

                (3) shall not impose a sanction of more than seven days of incarceration for a third technical violation of parole; and

                (4) may impose incarceration for a fixed term up to thirty days, which shall be counted as time served under the sentence, or enter any other order as it sees fit for a fourth or subsequent technical violation of parole; provided that the board may impose more than thirty days of incarceration if the board finds that additional detention is necessary for the parolee's rehabilitation or public safety.

          [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. If it appears that [he] the parolee has violated the provisions of [his] the parolee's release, 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 3. 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.--

          A. At any time during probation:

                (1) the court may issue a warrant for the arrest of a probationer for [violation of any of the conditions of release] a standard violation of probation. 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 any violation and shall issue the notice for a technical violation of probation unless the director authorizes arrest based on a flight risk or danger to the community. 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 of the probationer's release] committed a standard violation of probation. 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.

          B. Following service of a notice to appear or arrest pursuant to Subsection A of this section, the court shall then hold a hearing, which may be informal, on the violation charged. If the violation of probation 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; provided that the sanction shall be commensurate with the seriousness of the violation and not a punishment for the offense of conviction, and the court:

                (1) shall not impose a sanction of more than three days of community service, restrictive curfew, behavioral health treatment or other non-detention sanction for a first technical violation of probation;

                (2) shall not impose a sanction of more than five days of community service, restrictive curfew, behavioral health treatment or other non-detention sanction for a second technical violation of probation;

                (3) shall not impose a sanction of more than three days of incarceration for a third technical violation of probation; and

                (4) 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 for a fourth or subsequent technical violation of probation.

          C. If imposition of sentence was deferred, the court may, consistent with Subsection B of this section, impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

          [C.] D. 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.] E. 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."

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