HB 5 — PRETRIAL RELEASE CONDITIONS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR HOUSE BILL 5 55TH LEGISLATURE -STATEOFNEWMEXICO- SECOND SESSION , 2022 INTRODUCED4 BY6 Marian8 Matthews10 andAN MeredithACT A.RELATING TO PRETRIAL RELEASE;

DixonREQUIRING andCONTINUOUS WilliamELECTRONIC "Bill"LOCATION R.MONITORING OF CERTAIN DEFENDANTS ON PRETRIAL RELEASE;

RehmREQUIRING andCOLLECTION LindaAND M.MAINTENANCE OF ELECTRONIC LOCATION MONITORING DATA FOR THOSE DEFENDANTS;

LopezREQUIRING andNOTIFICATION NatalieTO FigueroaLAW 7ENFORCEMENT 9AGENCIES ANOF ACTVIOLATIONS RELATINGOF TOCOURT-ORDERED PRETRIALELECTRONIC RELEASE;LOCATION MONITORING;

ESTABLISHINGREQUIRING WHENAVAILABILITY AOF REBUTTABLEe PRESUMPTIONt ARISES17 THATELECTRONIC ALOCATION PERSONMONITORING ISDATA DANGEROUS TO ANYLAW OTHERENFORCEMENT PERSONw ORl TOn THEd COMMUNITY18 ANDAGENCIES, NODISTRICT RELEASEATTORNEYS, CONDITIONSPUBLIC WILLDEFENDERS REASONABLYAND PROTECT THE SAFETYOFFICE OF= ANY= OTHER19 PERSONa ORl OF THE COMMUNITY;ATTORNEY GENERAL;

CONFIRMING THE PROSECUTING AUTHORITY'S BURDEN OF PROOF IN PRETRIAL DETENTION HEARINGS;

i a e tr 1720 wa lt nm dm 1821 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

=d =r 19e a22 l SECTION 1.

A new section of Chapter 31, Article 3 NMSA ic a e rs 20k 23 1978 is enacted to read:

e a tn mb m24 21 "[NEW MATERIAL] REBUTTABLECOURT-ORDERED PRESUMPTIONELECTRONIC AGAINSTLOCATION RELEASE.--u d[ rMONITORING eOF 22CERTAIN DEFENDANTS ON PRETRIAL RELEASE-- .222615.1 HJC/HB 5 COLLECTION AND MAINTENANCE OF DATA--NOTIFICATION OF VIOLATIONS--DATA AVAILABILITY.-- A.

SubjectWhen to rebuttal by the defendant in a ccourt eorders selectronic klocation 23monitoring pretrialof detentiona hearingdefendant requestedcharged bywith a prosecutingfelony eas a ncondition b 24 authority, evidence or offers of proofpretrial establishingrelease, probablethe uelectronic [location causemonitoring for any of the following felony offenses for which a .221264.12GLG defendant is charged shall be deemedconducted primafor facietwenty-four proofhours thatper theday defendant is a danger to any other person or to the community and thatseven nodays releaseper conditionsweek. will reasonably protect the safety of any other person or the community:

(1)The anydata obtained from the electronic location monitoring shall be collected for the duration of the followingperiod seriousfor violentwhich felonythe offenses:monitoring is required and shall be maintained for at least five years.

(a)B. murder in the first degree;

(b)An firstentity orconducting secondelectronic degreelocation felonymonitoring humanof traffickinga defendant on pretrial release shall immediately notify each law enforcement agency within the jurisdiction of the court of a child;violation of a requirement for electronic location monitoring, including the defendant's presence in a prohibited location or the disabling of an electronic location e t 17 monitoring device.

(c)w firstl degreen felonyd abuse18 ofC. a child;

(d)The sexualelectronic exploitationlocation ofmonitoring data = = 19 maintained pursuant to this section shall be made available, a childl constitutingi ata leaste r 20 upon request, to a secondlaw degreeenforcement felony;agency, a district attorney, a t m m 21 a public defender or the office of the attorney general." d r e 22 SECTION 2.

orEMERGENCY.--It (e)is anecessary seriousfor violentthe felonypublic offensec ase provideds ink Subparagraphs23 (a)peace, throughhealth (n)and ofsafety Paragraphthat (4)this ofact Subsectiontake Leffect ofimmediately. Section 33-2-34 NMSA 1978;

e t 17 (2) a felony offense during which a firearm w l n db 1824 was- brandished2 pursuant- tou Section[ 31-18-16.222615.1 NMSA 1978 or during = = 19 a l which a firearm was discharged;

or i a e r 20 (3) a felony offense during which great bodily a t m m 21 harm was inflicted as defined in Section 30-1-12 NMSA 1978 or d r e 22 that caused the death of a person.

c e s k 23 B.

Subject to rebuttal by the defendant in a e a n b 24 pretrial detention hearing requested by a prosecuting u [ authority, it shall be presumed that the defendant is a danger .221264.12GLG - 2 - to any other person or to the community and that no release condition will reasonably protect the safety of any other person or the community if the court finds that there is probable cause to believe that the defendant committed a new felony offense that prompted the detention hearing:

(1) while pending trial or sentencing for an offense listed in Paragraphs (1) through (3) of Subsection A of this section;

(2) while on probation, parole or any other post-conviction supervision for an offense listed in Paragraphs (1) through (3) of Subsection A of this section;

or (3) within five years of having been convicted of an offense listed in Paragraphs (1) through (3) of Subsection A of this section.

C.

If the court rules that the presumption in Subsection A or B of this section applies to a defendant, the e t 17 court shall evaluate whether the prosecuting authority has w l n d 18 satisfied its burden to prove by clear and convincing evidence = = 19 a l that no release conditions will reasonably protect the safety i a e r 20 of any other person or the community by evaluating any factors a t m m 21 established by rules approved by the New Mexico supreme court d r e 22 for pretrial detention, including:

c e s k 23 (1) the nature and circumstances of the e a n b 24 offense charged, including whether the offense is a crime of u [ violence;

.221264.12GLG - 3 - (2) the weight of the evidence against the defendant;

(3) the history and characteristics of the defendant;

(4) the nature and seriousness of the danger to any person or to the community that would be posed by the defendant's release;

(5) any facts tending to indicate that the defendant may or may not commit new crimes if released;

(6) whether the defendant has been ordered detained under Article 2, Section 13 of the constitution of New Mexico based on a finding of dangerousness in another pending case or was ordered detained based on a finding of dangerousness in any prior case;

and (7) any available results of a pretrial risk assessment instrument approved by the New Mexico supreme court e t 17 for use in the jurisdiction;

provided that the court shall not w l n d 18 defer to the recommendation in the instrument but shall make an = = 19 a l independent determination of dangerousness and community safety i a e r 20 based on all information available at the hearing.

a t m m 21 D.

Nothing in this section shall be deemed to shift d r e 22 the burden of proof to the defendant that the defendant is not c e s k 23 a danger to any other person or to the community and that there e a n b 24 are no release conditions that will reasonably protect the u [ safety of any other person or the community.

The burden of .221264.12GLG - 4 - proof rests with the prosecuting authority.

E.

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.