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SPONSOR: |
Lujan |
DATE TYPED: |
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HB |
847 |
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SHORT TITLE: |
Theft of Identity and Unlawful Communication |
SB |
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ANALYST: |
Maloy |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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See Narrative |
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Responses
Received From
Office
of the Attorney General
Department
of Corrections
Department
of Health
Public
Defenders Office
SUMMARY
Synopsis
of Bill
House
Bill 847 amends three criminal statutes: NMSA 1978, § 30-16-24.1 (theft of
identity); § 30-20-12 (use of telephone to terrify, etc.); and §§ 30-20A-1 et seq. (antiterrorism act).
The
bill amends these acts as follows:
1. Theft of identity is currently a
misdemeanor. The bill would make it a
second-degree felony offense when committed with the intent to commit or assist
an act of terrorism, or facilitate the use of a weapon of mass
destruction. Those terms are defined by
reference to the antiterrorism act.
2.
The use of telephone statute would be revised in three ways. First, it would include "electronic or
written communication[s]", updating the statute to reflect technological progress
in communications. Second, while the
first offense remains a misdemeanor, a second offense is elevated to a
fourth-degree felony. Third, committing
the offense by threatening an act of terrorism or use of a destructive device
or weapon of mass destruction (all these terms are defined) is a third-degree
felony upon first conviction, and a second-degree felony upon subsequent conviction. In addition, the bill specifically states a
legislative intent that prosecution under this section would not bar
prosecution under other laws.
3. The antiterrorism act would be revised in
several ways. Definitions of the
following terms are added: "act of terrorism" and "weapon of
mass destruction." The statute
currently prohibits training another in the use of firearms and destructive
devices with the intent that the training will be used to promote civil
disorder. The bill includes training
with a "knife, box cutter or similar device" when used to further an
act of terrorism or threatened use of a weapon of mass destruction. The penalty is increased from fourth to
third-degree felony. Commission of an
act of terrorism and use of a weapon of mass destruction, neither of which is
currently prohibited by the statute, are criminalized as first-degree
felonies. The bill specifically states a
legislative intent that prosecution under this section would not bar
prosecution under other laws.
Significant Issues
The
Attorney General’s Office notes two potential constitutional issues. While the issues below are noted, the
Attorney General’s Office also states that neither of the potential issues is a
meritorious legal claim.
1.
2. The Ninth Circuit has held that the first
amendment protects one gang member training another in criminal techniques, so
long as "imminent" criminal activity isn't planned. McCoy v. Stewart, 282 F.3d 626 (9th Cir.
2002), cert. denied, 123 S.Ct. 468 (2002). That opinion is not controlling in
FISCAL IMPLICATIONS
There are no direct, readily
immediate fiscal implications for the state with HB 847. However, secondary costs may arise for such
agencies as the Courts, District Attorneys Offices, Public Defenders Offices
and Corrections Department if an individual undertakes criminal conduct that
would fall under the heightened sanctions outlined in this bill.
Terrorism is a reality
in today’s world and, thus, appropriate legal preparation (such as this bill)
is a responsible and sound course of action.
It is not likely a
large number of convictions would arise under the heightened charges and sanctions
in this bill. As such, the impact (both
fiscally and administratively) are likely very manageable within the bounds of
existing resources. However, if the
legal preparation outlined in this bill were to become costly to the state in
an unexpected turn of events, the costs are something the state simply must
absorb as part of being appropriately prepared for the unique challenges of
today’s political environment and covert violent attacks by outsiders on the
innocent.
OTHER SUBSTANTIVE ISSUES
The Office of the Public Defender has noted these
additional substantive issues for consideration:
1. This bill makes a second violation of the
"telephone harassment" statute a fourth degree felony.
Turning a misdemeanor into a felony (as in the felony DWI statute) means that
this crime cannot be enhanced under the habitual offender statute and cannot be
used to enhance another crime under the habitual offender statute.
2. The bill also authorizes the state to impose
additional penalties by using the same evidence twice.
This provision could potentially be a violation of the double jeopardy clause
of the state and federal constitutions. “The state is not permitted to use the
same evidence more than once to increase a penalty. If the legislative intent
of one statute and the legislative intent of the other are different (i.e., one
statute protects people and one protects property) there is no double jeopardy
problem. If the two statutes protect the same societal interest, there is a
double jeopardy problem and this phrase is meaningless.”
3. The bill seeks to redefines "destructive
device" to exclude devices that are not designed or redesigned for use as
a weapon unless the device is readily convertible for use as a weapon.
This definition does not put a reasonable citizen on notice of what constitutes
a destructive device. The provision is too vague and ambiguous. For example, is
a "potato launcher" a destructive device? It meets the definition of destructive device
except that it is not designed for use as a weapon. However, although it is not
intended for use as a weapon, the fact that a potato can be replaced with a
more serious projectile makes it "readily convertible into a weapon."
School book clubs sells instructions for making a potato launcher to children
in middle school. Is the publisher of the book in violation of the statute if
the device is converted into a weapon?
Is the teacher who distributes the book guilty? Is a child who makes a
potato launchers guilty if someone else converts it to an actual weapon?
The
Department of Health also raises the following for consideration:
4. The certificate of birth is widely known as a
“breeder document”, due to the fact that once a birth certificate is obtained,
it opens the doors to obtain other types of “Identifying information”.
A “certificate of birth” allows a person to obtain a driver’s license,
identification card, US Passport, etc., which in turn allow a person to apply
for and/or access credit cards, bank accounts, social security card,
employment, health and human service benefits and other critical
resources. If enacted, HB 847 would
support Section 24-14-31 NMSA 1978 which identifies penalties for violation of
the Vital Statistics Act and would increase penalties for terrorist acts.
SJM/sb:yr