SENATE BILL 122
56th legislature - STATE OF NEW MEXICO - second session, 2024
Craig W. Brandt and Mark Moores
RELATING TO PRETRIAL RELEASE; ESTABLISHING WHEN A REBUTTABLE PRESUMPTION ARISES THAT A DEFENDANT IS LIKELY TO POSE A THREAT TO THE SAFETY OF OTHERS IF RELEASED PENDING TRIAL AND THAT NO RELEASE CONDITIONS WILL REASONABLY PROTECT THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY; CONFIRMING THE PROSECUTION'S BURDEN OF PROOF IN PRETRIAL DETENTION HEARINGS; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 31, Article 3 NMSA 1978 is enacted to read:
"[NEW MATERIAL] REBUTTABLE PRESUMPTION AGAINST RELEASE.--
A. Subject to rebuttal by the defendant in a pretrial detention hearing requested by a prosecuting authority, it shall be presumed that the prosecution has proven by clear and convincing evidence that the defendant is likely to pose a threat to the safety of others if released pending trial and that no release conditions will reasonably protect the safety of any other person or the community if there is probable cause to believe:
(1) the defendant committed any of the following felony offenses for which the defendant is charged:
(a) murder in the first degree, as provided in Section 30-2-1 NMSA 1978;
(b) first or second degree felony human trafficking of a child, as provided in Section 30-52-1 NMSA 1978;
(c) first degree felony abuse of a child, as provided in Section 30-6-1 NMSA 1978;
(d) sexual exploitation of a child constituting at least a second degree felony, as provided in Section 30-6A-3 NMSA 1978;
(e) a serious violent felony offense, as provided in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978;
(f) a felony offense during which a firearm was brandished pursuant to Section 31-18-16 NMSA 1978 or during which a firearm was discharged; or
(g) a felony offense during which great bodily harm was inflicted, as provided in Section 30-1-12 NMSA 1978, or that caused the death of a person; or
(2) the defendant committed a new felony offense that prompted the detention hearing:
(a) while pending trial or sentencing for an offense listed in Paragraph (1) of Subsection A of this section;
(b) while on probation, parole or any other post-conviction supervision for an offense listed in Paragraph (1) of Subsection A of this section; or
(c) within five years of having been convicted of an offense listed in Paragraph (1) of Subsection A of this section.
B. If the court rules that the presumption in Subsection A of this section applies to a defendant, the court shall evaluate whether the prosecution has satisfied its burden of proof pursuant to Article 2, Section 13 of the constitution of New Mexico by considering any other available information tending to indicate that the defendant is likely to pose a threat to the safety of others if released pending trial and that no release conditions will reasonably protect the safety of any other person or the community.
C. Nothing in this section shall be deemed to shift the prosecution's burden of proof to the defendant that the defendant is likely to pose a threat to the safety of others if released pending trial and that no release conditions will reasonably protect the safety of any other person or the community. The burden of proof rests with the prosecuting authority.
D. For the purposes of this section, "firearm" means any weapon that will, is designed to or may readily be converted to expel a projectile by the action of an explosive."
SECTION 2. APPLICABILITY.--The provisions of this act apply to charges first filed against defendants on or after the effective date of this act.
SECTION 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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