The majority of my blogs have centered on New Mexico laws and how those laws affect one’s legal rights and the common issues that arise during the course of one’s case.
Today I want to take a step back and separate the forest from the trees, examining how laws are created while discussing House Bill 268 that is making its way through the New Mexico legislative session of 2015.
In the past, I have written extensively about my love/hate relationship with the Family Violence Protection Act and Order of Protections in general. For more information about Order of Protections, click here: Order of Protection in Albuquerque.
For more information on how an idea becomes a bill, and in turn how that bill becomes a law, take a trip back to the good ole days of boxed chocolate milk and recess by watching this entertaining and informative video produced by the legal luminaries at School House Rocks: How a BILL becomes a LAW by School House Rocks.
As I type these words House Bill 268 is making its way through New Mexico’s 52nd legislative session and proposes to significantly increase the penalties for anyone found guilty of violating an existing Order of Protection.
As the law currently stands, a restrained party that is convicted of violating an existing Order of Protection is guilty of a misdemeanor and can be imprisoned in the county jail for 364 day or less and/or forced to pay the maximum fine of $1,000.
House Bill 268 proposes for a new section of the Family Violence Protection Act to be entered. The new section would enhance the penalties outlined above, providing New Mexico judge’s with discretion (authority) to order a restrained party found guilty of violating an Order of Protection to be monitored by a GPS tracking devise. The bill would also provide judges with the discretion to establish restricted zones in Albuquerque, New Mexico that the restrained party must avoid.
These restricted zones can include the protected party’s
(1) residence
(2) place of employment
(3) school, college or other place for education or training
(4) child’s or children’s school, college, or other place of education or training;
(5) other areas that the court determines are necessary for the safety of the protected party.
If the restrained party enters any of the prohibited zones, the person’s location would be immediately transmitted to the protected party, law enforcement and the corrections department. By entering a prohibited zone, the restricted party will be considered to have violated the Order of Protection unless the court finds that the entry into the prohibited zone was inadvertent, or caused by force or duress.
The proposed Bill rationalizes the potentially burdensome and intrusive requirement of GPS monitoring by arguing that the option of GPS monitoring — in lieu of incarceration — reduces the cost of incarceration, while allowing the restrained party to continue to work and fulfill child support obligations.
On one hand, House Bill 268 provides an added layer of security and peace of mind for individuals that legitimately need protection, and the only source of protection comes from an existing order of protection. In this vein, the unnerving reality is that an Order of Protection is simply a piece of paper that threatens the downstream possibility of incarceration and/or fine. In this respect, GPS monitoring of prohibited zones provides victims with real-time relief by immediately alerting the protected party that the prohibited party has entered a protected area.
On the other hand, the proposals set forth in the Bill are rife with holes and constitutional issues. An entire blog could be written about the invasion of privacy and/or illegal search and seizure ramifications surrounding the proposed Bill, and Order of Protections in general that are commonly filed by a disgruntled party for any number of reasons that lack merit.
Additionally, the wholesale exclusion of an entire area of New Mexico — relative to prohibiting someone from coming within a certain distance from the protected party — could prevent the restrained party from working or obtaining an education, ultimately providing disgruntled individuals with more incentive to file merit-less Order of Protections and then alleged subsequent violations. For instance, if both parties attended the University of New Mexico/CNM, and the judge included UNM/CNM within the zone of prohibited areas, then the restrained party would effectively be prevented from attending either university. The same scenario could also apply to work, family interactions, church, etc., if the location exists within a prohibited area.
Despite its strengths and shortcomings, the proposals set forth in House Bill 268 demonstrate how laws are continually being created and modified to meet the demands of our ever changing society.
