0001| SENATE BILL 1111
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| DON KIDD
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO INTOXICATING LIQUOR OR DRUGS; AMENDING THE LIQUOR
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0012| CONTROL ACT AND THE DELINQUENCY ACT; PROVIDING FOR THE
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0013| FORFEITURE AND SEIZURE OF A MOTOR VEHICLE FOR A SECOND OR
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0014| SUBSEQUENT CONVICTION OF DRIVING UNDER THE INFLUENCE OF
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0015| INTOXICATING LIQUOR OR DRUGS; AMENDING AND ENACTING SECTIONS OF
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0016| THE NMSA 1978.
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0017|
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0018| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0019| Section 1. A new section of the Motor Vehicle Code is
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0020| enacted to read:
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0021| "[NEW MATERIAL] SEIZURE AND FORFEITURE OF MOTOR
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0022| VEHICLE--PROCEDURE--EXCEPTION.--
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0023| A. A motor vehicle shall be subject to seizure and
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0024| forfeiture if the seizure is incident to an arrest for driving
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0025| under the influence of intoxicating liquor or drugs pursuant to
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0001| Section 66-8-102 NMSA 1978.
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0002| B. In the event of seizure pursuant to Subsection A
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0003| of this section, proceedings under the Rules of Civil Procedure
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0004| for the District Courts and Subsection D of this section shall
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0005| be instituted promptly.
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0006| C. Upon conviction of a first offense, the motor
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0007| vehicle shall be subject to seizure and forfeiture for a period
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0008| of no more than ninety days.
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0009| D. A motor vehicle seized pursuant to Subsection A
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0010| of this section for a second or subsequent offense shall not be
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0011| subject to replevin, but is deemed to be in the custody of the
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0012| seizing law enforcement agency, subject only to the orders and
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0013| decrees of the district court. When a motor vehicle is seized
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0014| pursuant to the provisions of this section, a law enforcement
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0015| officer may remove the property to a place designated by the
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0016| district court or by the head of the officer's agency for
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0017| disposition in accordance with the law.
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0018| E. When a vehicle is forfeited pursuant to this
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0019| section, the seizing law enforcement agency shall sell the
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0020| motor vehicle at a public auction, and the proceeds, after all
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0021| costs for impoundment, forfeiture and sale are repaid, shall be
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0022| forwarded to the state treasurer for credit to the crime
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0023| victims reparation fund pursuant to Section 31-22-21 NMSA 1978
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0024| within thirty days."
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0025| Section 2. Section 32A-2-3 NMSA 1978 (being Laws 1993,
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0001| Chapter 77, Section 32, as amended) is amended to read:
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0002| "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:
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0003| A. "delinquent act" means an act committed by a
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0004| child that would be designated as a crime under the law if
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0005| committed by an adult, including the following offenses:
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0006| (1) pursuant to municipal traffic codes or the
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0007| Motor Vehicle Code:
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0008| (a) any driving while under the
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0009| influence of intoxicating liquor or drugs;
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0010| (b) any failure to stop in the event of
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0011| an accident causing death, personal injury or damage to
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0012| property;
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0013| (c) any unlawful taking of a vehicle or
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0014| motor vehicle;
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0015| (d) any receiving or transferring of a
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0016| stolen vehicle or motor vehicle;
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0017| (e) any homicide by vehicle;
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0018| (f) any injuring or tampering with a
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0019| vehicle;
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0020| (g) any altering or changing of an
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0021| engine number or other vehicle identification numbers;
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0022| (h) any altering or forging of a
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0023| driver's license or permit or any making of a fictitious
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0024| license or permit;
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0025| (i) reckless driving;
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0001| (j) driving with a suspended or revoked
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0002| license; or
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0003| (k) any offense punishable as a felony;
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0004| (2) buying, attempting to buy, receiving,
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0005| possessing or being served any alcoholic liquor or being
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0006| present in a licensed liquor establishment, other than a
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0007| restaurant or a licensed retail liquor establishment [except
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in the presence of the child's parent, guardian, custodian or
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adult spouse]. As used in this paragraph, "restaurant" means
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0010| any establishment where meals are prepared and served primarily
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0011| for on-premises consumption and that has a dining room, a
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0012| kitchen and the employees necessary for preparing, cooking and
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0013| serving meals. "Restaurant" does not include establishments,
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0014| as defined in regulations promulgated by the director of the
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0015| special investigations division of the department of public
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0016| safety, that serve only hamburgers, sandwiches, salads and
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0017| other fast foods;
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0018| (3) any felony violation of the provisions of
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0019| Sections 17-1-1 through 17-5-9 NMSA 1978 or any regulations
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0020| adopted by the state game commission that relate to the time,
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0021| extent, means or manner that game animals, birds or fish may be
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0022| hunted, taken, captured, killed, possessed, sold, purchased or
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0023| shipped and for which a fine may be imposed or a civil damage
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0024| awarded;
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0025| (4) any violation of Section 30-29-2 NMSA
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0001| 1978, regarding the illegal use of a glue, aerosol spray
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0002| product or other chemical substance;
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0003| (5) any violation of the Controlled Substances
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0004| Act;
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0005| (6) escape from the custody of a law
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0006| enforcement officer or a juvenile probation or parole officer
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0007| or from any placement made by the department by a child who has
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0008| been adjudicated a delinquent child; or
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0009| (7) any violation of Section 30-15-1.1 NMSA
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0010| 1978 regarding unauthorized graffiti on personal or real
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0011| property;
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0012| B. "delinquent child" means a child who has
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0013| committed a delinquent act;
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0014| C. "delinquent offender" means a delinquent child
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0015| who is subject to juvenile sanctions only and who is not a
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0016| youthful offender or a serious youthful offender;
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0017| D. "detention facility" means a place where a child
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0018| may be detained under the Children's Code pending court hearing
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0019| and does not include a facility for the care and rehabilitation
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0020| of an adjudicated delinquent child;
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0021| E. "felony" means an act that would be a felony if
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0022| committed by an adult;
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0023| F. "misdemeanor" means an act that would be a
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0024| misdemeanor or petty misdemeanor if committed by an adult;
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0025| G. "restitution" means financial reimbursement by
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0001| the child to the victim or community service imposed by the
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0002| court and is limited to easily ascertainable damages for injury
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0003| to or loss of property, actual expenses incurred for medical,
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0004| psychiatric and psychological treatment for injury to a person
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0005| and lost wages resulting from physical injury, which are a
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0006| direct and proximate result of a delinquent act. "Restitution"
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0007| does not include reimbursement for damages for mental anguish,
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0008| pain and suffering or other intangible losses. As used in this
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0009| subsection, "victim" means any person who is injured or suffers
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0010| damage of any kind by an act that is the subject of a complaint
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0011| or referral to law enforcement officers or juvenile probation
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0012| authorities. Nothing contained in this definition limits or
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0013| replaces the provisions of Subsections A and B of Section
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0014| 32A-2-27 NMSA 1978;
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0015| H. "serious youthful offender" means an individual
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0016| fifteen to eighteen years of age who is charged with and
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0017| indicted or bound over for trial for first degree murder. A
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0018| "serious youthful offender" is not a delinquent child as
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0019| defined pursuant to the provisions of this section; and
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0020| I. "youthful offender" means a delinquent child
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0021| subject to adult or juvenile sanctions who is:
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0022| (1) fourteen to eighteen years of age at the
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0023| time of the offense and who is adjudicated for at least one of
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0024| the following offenses:
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0025| (a) second degree murder, as provided in
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0001| Section 30-2-1 NMSA 1978;
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0002| (b) assault with intent to commit a
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0003| violent felony, as provided in Section 30-3-3 NMSA 1978;
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0004| (c) kidnapping, as provided in Section
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0005| 30-4-1 NMSA 1978;
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0006| (d) aggravated battery, as provided in
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0007| [Subsection C of] Section 30-3-5 NMSA 1978;
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0008| (e) aggravated battery upon a peace
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0009| officer, as provided in [Subsection C of] Section 30-22-25
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0010| NMSA 1978;
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0011| (f) shooting at a dwelling or occupied
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0012| building or shooting at or from a motor vehicle, as provided in
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0013| Section 30-3-8 NMSA 1978;
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0014| (g) dangerous use of explosives, as
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0015| provided in Section 30-7-5 NMSA 1978;
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0016| (h) criminal sexual penetration, as
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0017| provided in Section 30-9-11 NMSA 1978;
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0018| (i) robbery, as provided in Section
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0019| 30-16-2 NMSA 1978;
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0020| (j) aggravated burglary, as provided in
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0021| Section 30-16-4 NMSA 1978;
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0022| (k) aggravated arson, as provided in
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0023| Section 30-17-6 NMSA 1978; or
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0024| (l) abuse of a child that results in
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0025| great bodily harm or death to the child, as provided in Section
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0001| 30-6-1 NMSA 1978;
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0002| (2) fourteen to eighteen years of age at the
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0003| time of the offense and adjudicated for any felony offense and
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0004| who has had three prior, separate felony adjudications within a
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0005| three-year time period immediately preceding the instant
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0006| offense. The felony adjudications relied upon as prior
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0007| adjudications shall not have arisen out of the same transaction
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0008| or occurrence or series of events related in time and location.
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0009| Successful completion of consent decrees are not considered a
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0010| prior adjudication for the purposes of this paragraph; or
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0011| (3) fourteen years of age and adjudicated for
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0012| first degree murder, as provided in Section 30-2-1 NMSA 1978."
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0013| Section 3. Section 60-7B-1 NMSA 1978 (being Laws 1993,
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0014| Chapter 68, Section 22) is amended to read:
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0015| "60-7B-1. SELLING OR GIVING ALCOHOLIC BEVERAGES TO
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0016| MINORS--POSSESSION.--
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0017| A. It is a violation of the Liquor Control Act for
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0018| any person licensed pursuant to the provisions of the Liquor
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0019| Control Act, or any employee, agent or lessee of that person,
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0020| if he knows or has reason to know that he is violating the
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0021| provisions of this section, to:
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0022| (1) sell, serve or give any alcoholic
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0023| beverages to a minor or permit a minor to consume alcoholic
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0024| beverages on the licensed premises;
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0025| (2) buy alcoholic beverages for or procure the
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0001| sale or service of alcoholic beverages to a minor;
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0002| (3) deliver alcoholic beverages to a minor; or
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0003| (4) aid or assist a minor to buy, procure or
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0004| be served with alcoholic beverages.
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0005| B. It is a violation of the Liquor Control Act for
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0006| any minor to buy, attempt to buy, receive, possess or permit
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0007| himself to be served with any alcoholic beverages.
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0008| C. In the event any person except a minor procures
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0009| any other person to sell, serve or deliver any alcoholic
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0010| beverages to a minor by actual or constructive
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0011| misrepresentation of any facts calculated to cause, or by a
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0012| concealment of any facts the concealment of which is calculated
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0013| to cause the person selling, serving or delivering the
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0014| alcoholic beverages to the minor to believe that such minor is
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0015| legally entitled to be sold, served or delivered alcoholic
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0016| beverages and actually deceiving him by such misrepresentation
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0017| or concealment, then that person and not the person so deceived
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0018| by such misrepresentation or concealment shall have violated
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0019| the Liquor Control Act.
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0020| D. As used in the Liquor Control Act, "minor" means
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0021| any person under twenty-one years of age.
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0022| [E. Violation of this section by a minor with
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respect to possession is a petty misdemeanor. Upon conviction,
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the offender may be sentenced in accordance with Section 31-19-
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1 NMSA 1978. Any sentence imposed pursuant to this subsection
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may be suspended in the discretion of the court upon the
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condition that:
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(1) the minor accepts the suspension of his
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driver's license for a period not to exceed three months,
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whereupon the trial court may dismiss the possession of
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alcoholic beverage charge and it shall not be considered a
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conviction. In the event the minor's driver's license is to be
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suspended, the trial court shall inform the motor vehicle
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division of the taxation and revenue department of the action;
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provided, however, if the minor drives during the period of
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suspension, then the court may impose a fine, jail sentence or
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both, such fine and sentence not to exceed the maximums imposed
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for petty misdemeanors or may impose punishment pursuant to
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Paragraph (2) of this subsection; and
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(2) the minor assist in a community project
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designated by the court, up to fifty hours, whereupon the trial
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court may dismiss the possession of alcoholic beverage charge
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and it shall not be considered a conviction]
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0019| E. Violation of Subsection B of this section by a
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0020| minor with respect to possession is a misdemeanor. Upon
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0021| conviction, the offender shall be sentenced in accordance with
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0022| Section 31-19-1 NMSA 1978. In addition to that sentence, if
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0023| the offender possesses a motor vehicle, for a first offense
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0024| that motor vehicle shall be subject to seizure and forfeiture
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0025| upon an order issued by the trial court or without an order if
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0001| the seizure is incident to the arrest, for a period of no more
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0002| than ninety days.
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0003| F. Upon a second or subsequent offense, if the
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0004| offender possesses a motor vehicle, that motor vehicle shall be
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0005| subject to seizure and forfeiture upon an order issued by the
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0006| trial court, or without an order if the seizure is incident to
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0007| the arrest. A motor vehicle seized under this section shall
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0008| not be subject to replevin, but is deemed to be in the custody
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0009| of the seizing law enforcement agency, subject only to the
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0010| orders and decrees of the district court. When a motor vehicle
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0011| is seized pursuant to the provisions of this section, a law
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0012| enforcement officer may remove the property to a place
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0013| designated by the district court or by the head of the
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0014| officer's agency for disposition in accordance with the law.
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0015| G. When a vehicle is forfeited pursuant to this
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0016| section, the seizing law enforcement agency shall not return
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0017| the motor vehicle to a financial institution that has provided
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0018| the loan to the minor, if any, but shall sell the motor vehicle
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0019| at a public auction, and the proceeds, after all costs for
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0020| impoundment, forfeiture and sale are repaid, shall be forwarded
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0021| to the state treasurer for credit to the crime victims
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0022| reparation fund pursuant to Section 31-22-21 NMSA 1978 within
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0023| thirty days."
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0024| Section 4. EFFECTIVE DATE.--The effective date of the
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0025| provisions of this act is July 1, 1997.
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0001|
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