SENATE BILL 183

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Joseph Cervantes

 

 

 

 

 

AN ACT

RELATING TO CRIMINAL JUSTICE; ENACTING THE UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT.

 

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

         SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Uniform Collateral Consequences of Conviction Act".

         SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Uniform Collateral Consequences of Conviction Act:

                   A. "collateral consequence" means a collateral sanction or a disqualification;

                   B. "collateral sanction" means a penalty, disability or disadvantage, however denominated, imposed on an individual as a result of the individual's conviction of an offense that applies by operation of law, whether or not the penalty, disability or disadvantage is included in the judgment or sentence. "Collateral sanction" does not include imprisonment, probation, parole, supervised release, forfeiture, restitution, fine, assessment or costs of prosecution;

                   C. "convicted" and "conviction" include an adjudication as a youthful offender or serious youthful offender that results in an adult sentence;

                   D. "decision-maker" means the state acting through the following entities or their employees:

                                 (1) a department;

                               (2) an agency;

                               (3) an officer; or

                               (4) an instrumentality, including a political subdivision, an educational institution, a board or a commission or a government contractor, including a subcontractor, made subject to the Uniform Collateral Consequences of Conviction Act by contract, by law other than the Uniform Collateral Consequences of Conviction Act or by ordinance;

                   E. "disqualification" means a penalty, disability or disadvantage, however denominated, that an administrative agency, governmental official or court in a civil proceeding is authorized, but not required, to impose on an individual on grounds relating to the individual's conviction of an offense;

                   F. "identification agency" means the New Mexico sentencing commission, acting in conjunction with the district attorneys of New Mexico and the attorney general;

                   G. "offense" means a felony pursuant to the law of New Mexico, another state or the United States;

                   H. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity; and

                   I. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

         SECTION 3. [NEW MATERIAL] LIMITATION ON SCOPE.--

                   A. The Uniform Collateral Consequences of Conviction Act does not provide a basis for:

                               (1) invalidating a plea, conviction or sentence;

                               (2) a cause of action for money damages; or

                               (3) a claim for relief from or defense to the application of a collateral consequence based on a failure to comply with the Uniform Collateral Consequences of Conviction Act.

                   B. The Uniform Collateral Consequences of Conviction Act does not affect:

                               (1) the duty an individual's attorney owes to the individual, except as provided in Section 5 of the Uniform Collateral Consequences of Conviction Act;

                                 (2) a claim or right of a victim of an offense; or

                               (3) a right or remedy pursuant to law other than the Uniform Collateral Consequences of Conviction Act available to an individual convicted of an offense.  

         SECTION 4. [NEW MATERIAL] IDENTIFICATION, COLLECTION AND PUBLICATION OF LAWS REGARDING COLLATERAL CONSEQUENCES.--

                   A. The identification agency:

                               (1) shall identify or cause to be identified:                                          (a) any provision in the constitution of New Mexico and New Mexico's statutes published in the New Mexico Statutes Annotated that imposes a collateral sanction or authorizes the imposition of a disqualification; and

                                         (b) any provision of law that may afford relief from a collateral consequence;

                               (2) not later than six months after the effective date of the Uniform Collateral Consequences of Conviction Act, shall prepare or cause to be prepared a collection of citations to, and the text or short descriptions of, the provisions identified pursuant to Paragraph (1) of this subsection;

                               (3) shall update or cause to be updated the collection provided for in Paragraph (2) of this subsection within three months after the laws enacted during each session of the legislature are published in the New Mexico Statutes Annotated; and

                               (4) in complying with Paragraphs (1) and (2) of this subsection, may rely on the study of New Mexico's collateral sanctions, disqualifications and relief provisions prepared by the national institute of justice described in Section 510 of the federal Court Security Improvement Act of 2007, Pub. L. 110-177.

                   B. As required by Subsection A of this section, the identification agency shall include or cause to be included the following statements in a prominent manner at the beginning of the collection:

                               (1) "This collection has not been enacted into law and does not have the force of law.";

                               (2) "An error or omission in this collection, or in any reference work cited in this collection, is not a reason for invalidating a plea, conviction or sentence or for not imposing a collateral sanction or authorizing a disqualification.";

                               (3) "The laws of other jurisdictions and New Mexico counties and municipalities and the New Mexico Administrative Code are not included in this collection and may impose additional collateral sanctions and authorize additional disqualifications."; and

                               (4) "This collection does not include any law or other provision regarding the imposition of or relief from a collateral sanction or a disqualification enacted or adopted after [insert date the collection was prepared or last updated].".

                   C. The identification agency shall publish or cause to be published in the manner provided in Subsection D of this section the collection prepared and updated as required by Subsection A of this section. If available, the identification agency shall publish or cause to be published, as part of the collection, the title and internet address of:

                               (1) the most recent collection of collateral consequences imposed by federal law; and

                               (2) any provision of federal law that may afford relief from a collateral consequence.

                   D. The collection provided for in Subsection C of this section shall be published on the website of the identification agency and shall be available to the public on the internet without charge not later than three weeks after it is created or updated.

         SECTION 5. [NEW MATERIAL] NOTICE OF COLLATERAL CONSEQUENCES IN PRETRIAL PROCEEDING AND AT GUILTY PLEA.--

                   A. Except as provided in Subsection C of this section, counsel representing an individual charged with an offense shall cause written notice substantially similar to the following to be communicated to the individual:

"NOTICE OF ADDITIONAL LEGAL CONSEQUENCES

If you plead guilty or no contest to an offense, or are convicted of an offense, you may suffer additional legal consequences beyond jail or prison, probation, periods of parole and fines. These consequences may include:

1. being unable to get or keep some licenses, permits or jobs;

2. being unable to get or keep benefits such as public housing or education;

3. receiving a harsher sentence if you are convicted of another offense in the future;

4. having the government take your property; and

5. being unable to vote or possess a firearm.

If you are not a United States citizen, a guilty plea or no contest plea or conviction may also result in your deportation, removal or exclusion from admission to the United States or denial of citizenship.

The law may provide ways to obtain some relief from these consequences.

Further information about the consequences of conviction is available on the internet at [insert internet address of the collection of laws published pursuant to Subsections C and D of Section 4 of the Uniform Collateral Consequences of Conviction Act].".

                   B. Before a court accepts a plea of guilty or no contest from an individual, the court shall confirm that the individual received and understands the notice required by Subsection A of this section and has had an opportunity to discuss the notice with counsel.

                   C. The notice required pursuant to Subsection A of this section need not be given until six months have elapsed after the collection of laws required pursuant to Section 4 of the Uniform Collateral Consequences of Conviction Act is first available on the internet pursuant to Subsections C and D of Section 4 of that act.

                   D. This section does not limit the duty that an individual's counsel otherwise owes to the individual.

         SECTION 6. [NEW MATERIAL] NOTICE OF COLLATERAL CONSEQUENCES AT SENTENCING AND UPON RELEASE.--

                   A. An individual convicted of an offense shall be given notice as provided in Subsections B and C of this section:

                               (1) that collateral consequences may apply because of the conviction;

                               (2) of the internet address of the collection of laws published pursuant to Subsections C and D of Section 4 of the Uniform Collateral Consequences of Conviction Act;  

                               (3) that there may be ways to obtain relief from collateral consequences;

                               (4) of contact information for government or nonprofit agencies, groups or organizations, if any, offering assistance to individuals seeking relief from collateral consequences; and

                               (5) of when an individual convicted of an offense may vote pursuant to New Mexico law.

                   B. Except as provided in Subsection D of this section, the court shall provide the notice set forth in Subsection A of this section as a part of sentencing.

                   C. Except as provided in Subsection D of this section, if an individual is sentenced to imprisonment or other incarceration, the officer or agency releasing the individual shall provide the notice set forth in Subsection A of this section not more than thirty and, if practicable, at least five days before release.

                   D. The notice required pursuant to Subsection A of this section need not be given until six months have elapsed after the collection of laws required pursuant to Section 4 of the Uniform Collateral Consequences of Conviction Act is first available on the internet pursuant to Subsections C and D of Section 4 of that act.

         SECTION 7. [NEW MATERIAL] AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION--AMBIGUITY.--

                   A. A collateral sanction may be imposed only by statute or ordinance or by a rule authorized by law and adopted in accordance with applicable law.

                   B. A law creating a collateral consequence that is ambiguous as to whether it imposes a collateral sanction or authorizes a disqualification shall be construed as authorizing a disqualification.

         SECTION 8. [NEW MATERIAL] DECISION TO DISQUALIFY.--In deciding whether to impose a disqualification, a decision-maker shall undertake an individualized