46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CRIMINAL LAW; AMENDING THE ANTITERRORISM ACT; AMENDING CERTAIN SECTIONS OF THE CRIMINAL CODE THAT RELATE TO THEFT OF IDENTITY AND UNLAWFUL COMMUNICATIONS; DECLARING AN EMERGENCY.

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

Section 1. Section 30-16-24.1 NMSA 1978 (being Laws 2001, Chapter 138, Section 1) is amended to read:

"30-16-24.1. THEFT OF IDENTITY.--

A. Theft of identity consists of willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another.

B. As used in this section, "personal identifying information" means information that alone or in conjunction with other information identifies a person, including the person's name, address, telephone number, driver's license number, social security number, place of employment, maiden name of the person's mother, demand deposit account number, checking or savings account number, credit card or debit card number, personal identification number, passwords or any other numbers or information that can be used to access a person's financial resources.

C. [Whoever] A person who commits theft of identity is guilty of:

(1) a misdemeanor; or

(2) a second degree felony when the act is committed with the intent to:

(a) commit or assist in the commission of an act of terrorism as defined in Section 30-20A-2 NMSA 1978; or

(b) use or facilitate the use of a weapon of mass destruction as defined in Section 30-20A-2 NMSA 1978.

D. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.

E. In a prosecution brought pursuant to this section, the theft of identity shall be considered to have been committed in the county where the person whose identifying information was appropriated resided at the time of the offense, or in which any part of the offense took place, regardless of whether the defendant was ever actually present in the county.

F. A person found guilty of theft of identity shall, in addition to any other punishment, be ordered to make restitution for any financial loss sustained by a person injured as the direct result of the theft of identity. In addition to out-of-pocket costs, restitution may include payment for costs, including attorney fees, incurred by that person in clearing his credit history or credit rating or costs incurred in connection with a civil or administrative proceeding to satisfy a debt, lien, judgment or other obligation of that person arising as a result of the theft of identity.

G. The sentencing court shall issue written findings of fact and may issue orders as are necessary to correct a public record that contains false information as a result of the theft of identity."

Section 2. Section 30-20-12 NMSA 1978 (being Laws 1967, Chapter 120, Section 2) is amended to read:

"30-20-12. USE OF [TELEPHONE] ELECTRONIC OR WRITTEN COMMUNICATION TO TERRIFY, INTIMIDATE, THREATEN OR HARASS [ANNOY OR OFFEND]--PENALTY.--

A. It [shall be] is unlawful for [any] a person, with intent to terrify, intimidate, threaten or harass, [annoy or offend, to telephone another] to communicate with another by electronic or written communication and use any obscene, lewd or profane language or suggest any lewd, criminal or lascivious act or threaten to inflict injury or physical harm to the person or property of any person. It [shall] is also [be] unlawful for [any] a person to attempt by [telephone] electronic or written communication to extort money or other thing of value from any other person, or to otherwise disturb by repeated anonymous [telephone calls] electronic or written communication the peace, quiet or right of privacy of any other person at the place where the [telephone call or calls] communications were received, or to maliciously [make a telephone call, whether or not conversation ensues] communicate by electronic or written communication, whether or not a response results, with intent to [annoy or] disturb another, or to disrupt the [telecommunications] electronic or written communications of another.

B. The use of obscene, lewd or profane language or the making of a threat or statement as set forth in Subsection A of this section shall be prima facie evidence of intent to terrify, intimidate, threaten or harass [annoy or offend].

C. As used in this section:

(1) "electronic communication" means a communication made through an electronic device or medium, including a telephone, computer, fax machine, pager or similar device; and

(2) "written communication" means a communication made by delivery of a written document, including communication by public or private mail, courier or similar delivery service.

[C.] D. Any offense committed [by use of a telephone as set forth] in violation of this section shall be deemed to have been committed at either the place where the [telephone call or calls] communication originated or at the place where the [telephone call or calls were] communication was received.

[D. Whosoever violates this section is guilty of a misdemeanor, unless such person has previously been convicted of such offense or of an offense under the laws of another state or of the United States which would have been an offense under this section if committed in this state, in which case such person is guilty of a fourth degree felony.]

E. Except as provided in Subsection F of this section, a person who violates the provisions of this section is guilty of:

(1) a misdemeanor; or

(2) a fourth degree felony if the person has previously been convicted of the offense or of an offense pursuant to the laws of another state or of the United States that would have been an offense pursuant to this section if committed in this state.

F. A person who violates the provisions of this section by threatening to inflict injury or physical harm to the person or property of another by an act of terrorism as defined in Section 30-20A-2 NMSA 1978, the use of a destructive device as defined in Section 30-20A-2 NMSA 1978 or the use of a weapon of mass destruction as defined in Section 30-20A-2 NMSA 1978 is guilty of:

(1) a third degree felony; or

(2) a second degree felony if the person has previously been convicted of the offense or of an offense pursuant to the laws of another state or of the United States that would have been an offense pursuant to this section if committed in this state.

G. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of law when the conduct also constitutes a violation of that other provision."

Section 3. Section 30-20A-1 NMSA 1978 (being Laws 1990, Chapter 66, Section 1) is amended to read:

"30-20A-1. SHORT TITLE.--[This act] Chapter 30, Article 20A NMSA 1978 may be cited as the "Antiterrorism Act"."

Section 4. Section 30-20A-2 NMSA 1978 (being Laws 1990, Chapter 66, Section 2) is amended to read:

"30-20A-2. DEFINITIONS.--As used in the Antiterrorism Act:

A. "act of terrorism" means an act of violence that is or may reasonably be expected to be dangerous to human life or to cause property damage in excess of one hundred thousand dollars ($100,000) and that is intended to intimidate or coerce a civilian population or influence the policy or conduct of a unit of government;

[A.] B. "civil disorder" means any planned act of violence by an assemblage of two or more persons with the intent to cause damage or injury to another individual or his property;

[B.] C. "destructive device" means:

(1) any explosive, incendiary or poison gas:

(a) bomb;

(b) grenade;

(c) rocket having a propellant charge of more than four ounces;

(d) missile having an explosive or incendiary charge of more than [one-quarter] one-fourth ounce;

(e) mine; or

(f) similar device;

(2) any type of weapon that can expel or may be readily converted to expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than six-tenths inch in diameter, except a shotgun, shotgun shell or muzzle loading firearm that is generally recognized as particularly suitable for sporting purposes; or

(3) any part or combination of parts either designed or intended for use in converting or assembling any device described in Paragraphs (1) and (2) of this subsection.

The term "destructive device" [shall] does not include any device that is neither designed nor redesigned for use as a weapon unless the device is readily convertible for use as a weapon;

[C.] D. "firearm" means any weapon that can expel 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, any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun; [and

D.] E. "law enforcement officer" means any employee of a police or public safety department administered by the state or any political subdivision of the state where the employee is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of this state. "Law enforcement officer" includes any member of the New Mexico national guard; any peace officer of the United States, any state, any political subdivision of a state or the district of Columbia; any member of the New Mexico mounted patrol or the national guard, as defined in 10 U.S.C. Sec. 101(9); any member of the organized militia of any state or territory of the United States, the commonwealth of Puerto Rico or the district of Columbia not included within the definition of national guard; and any member of the armed forces of the United States. "Law enforcement officer" also means any person or entity acting as a contractor for any other law enforcement officer, police or public safety department described in this section; and

F. "weapon of mass destruction" means a device capable of releasing a radioactive, biological, toxic or chemical agent in a form or by a means that will or that may reasonably be expected to produce death, bodily harm or illness in a civilian population."

Section 5. Section 30-20A-3 NMSA 1978 (being Laws 1990, Chapter 66, Section 3) is amended to read:

"30-20A-3. UNLAWFUL ACTS--PENALTY.--

A. [Any] A person who teaches or demonstrates the use, application or making of [any] a knife, box cutter or similar device or a firearm, destructive device, weapon of mass destruction or technique capable of causing injury or death to any person with the intent that the knowledge or skill taught, demonstrated or gained be [unlawfully] used in furtherance of a civil disorder, an act of terrorism or the use or threatened use of a weapon of mass destruction is guilty of a [fourth] third degree felony [and shall be sentenced under the provisions of the Criminal Sentencing Act to imprisonment for a definite term of eighteen months or, in the discretion of the sentencing court, to a fine of not more than five thousand dollars ($5,000) or both].

B. [Any] A person who trains, practices or receives instruction in the use of [any] a knife, box cutter or similar device or a firearm, destructive device, weapon of mass destruction or technique capable of causing injury or death to any person with the intent that the knowledge or skill taught, demonstrated or gained be [unlawfully] used in furtherance of a civil disorder, an act of terrorism or the use or threatened use of a weapon of mass destruction is guilty of a [fourth] third degree felony [and shall be sentenced under the provisions of the Criminal Sentencing Act to imprisonment for a definite term of eighteen months or, in the discretion of the sentencing court, to a fine of not more than five thousand dollars ($5,000) or both].

C. A person who commits an act of terrorism or uses a weapon of mass destruction is guilty of a first degree felony.

D. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of law when the conduct also constitutes a violation of that other provision."

Section 6. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.