2018 New Mexico Statutes
Chapter 29 - Law Enforcement
Article 11A - Sex Offender Registration and Notification
Section 29-11A-4 - Registration of sex offenders; information required; verification; criminal penalty for noncompliance.

A. A sex offender residing in this state shall register with the county sheriff for the county in which the sex offender resides.

B. A sex offender who is a resident of New Mexico shall initially register with the county sheriff no later than five business days after being released from the custody of the corrections department, a municipal or county jail or a federal, military or tribal correctional facility or detention center or being placed on probation or parole. A sex offender who changes residence to New Mexico shall register with the county sheriff no later than five business days after arrival in this state. When a sex offender initially registers with the county sheriff, the sex offender shall provide the following registration information:

(1) the sex offender's legal name and any other names or aliases that the sex offender is using or has used;

(2) the sex offender's date of birth;

(3) the sex offender's social security number;

(4) the sex offender's current physical and mailing address and the address of every place where the sex offender habitually lives;

(5) the sex offender's place of employment;

(6) the sex offense for which the sex offender was convicted;

(7) the date and place of the sex offense conviction;

(8) the sex offender's names, email addresses and monikers and other self-identifiers used on social networking sites, to be used only for law enforcement purposes;

(9) the sex offender's landline and cellular telephone numbers and any other telephone numbers primarily used by the sex offender;

(10) the sex offender's professional licenses;

(11) the license plate or other identifier and the description of any vehicle owned or primarily operated by the sex offender, including aircraft and watercraft;

(12) the name and address of any school or institution of higher education that the sex offender is attending; and

(13) copies of the sex offender's passport and immigration documents.

C. A sex offender who is a resident of another state but who is employed in New Mexico or attending public or private school or an institution of higher education in New Mexico shall register with the county sheriff for the county in which the sex offender is working or attending school or an institution of higher education.

D. A sex offender who is a resident of another state but who is employed in New Mexico or attending public or private school or an institution of higher education in New Mexico shall register with the county sheriff no later than five business days after beginning work or school. When the sex offender registers with the county sheriff, the sex offender shall provide the following registration information:

(1) the sex offender's legal name and any other names or aliases that the sex offender is using or has used;

(2) the sex offender's date of birth;

(3) the sex offender's social security number;

(4) the sex offender's current physical and mailing address in the sex offender's state of residence and, if applicable, the address of the sex offender's place of lodging in New Mexico while working or attending school or an institution of higher education;

(5) the sex offender's place of employment or the name of the school the sex offender is attending;

(6) the sex offense for which the sex offender was convicted; and

(7) the date and place of the sex offense conviction.

E. When a sex offender registers with a county sheriff, the sheriff shall obtain:

(1) a photograph of the sex offender and a complete set of the sex offender's fingerprints and a palm print;

(2) a physical description, including a description of any tattoos, scars or other distinguishing features on the sex offender's body that would assist in identifying the sex offender; and

(3) a DNA sample for inclusion in the sex offender DNA identification system pursuant to the provisions of the DNA Identification Act [Chapter 29, Article 16 NMSA 1978].

F. When a sex offender who is registered changes any information required under this section, the sex offender shall send written notice of the change on a form approved by the department to the county sheriff no later than five business days after the change occurs.

G. When a sex offender who is registered changes residence to a new county in New Mexico, the sex offender shall register with the county sheriff of the new county no later than five business days after establishing the new residence. The sex offender shall also send written notice of the change in residence to the county sheriff with whom the sex offender last registered no later than five business days after establishing the new residence.

H. When a sex offender who is registered or required to register is homeless or does not have an established residence, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico, the sex offender shall register each address or temporary location with the county sheriff for each county in which the sex offender is living or temporarily located. The sex offender shall register no later than five business days after a change in living arrangements or temporary location.

I. When a sex offender who is registered or required to register is employed, begins a vocation or is enrolled as a student at an institution of higher education in New Mexico, the sex offender shall disclose the sex offender's status as a sex offender in writing to the county sheriff for the county in which the institution of higher education is located, the law enforcement entity responsible for the institution of higher education and the registrar for the institution of higher education no later than five business days after beginning employment, beginning a vocation or enrolling at the institution of higher education. The sex offender shall also send written notice of any change regarding employment, vocation or enrollment status at an institution of higher education to the county sheriff, the law enforcement entity and the registrar no later than five business days after the change in employment, vocation or enrollment status.

J. When a sex offender who is registered or required to register is employed or is enrolled as a student at a public or private school in New Mexico, the sex offender shall disclose the sex offender's status as a sex offender in writing to the county sheriff for the county in which the school is located and to the principal of the school no later than five business days after beginning employment or enrolling at the school. The sex offender shall also send written notice of any change regarding employment or enrollment status at a school to the county sheriff and the principal no later than five business days after the change in employment or enrollment status.

K. When a sex offender who is registered or required to register is employed, begins a vocation or volunteers services, regardless of whether the sex offender receives payment or other compensation, the sex offender shall disclose the sex offender's status as a sex offender in writing to the sex offender's employer, supervisor or person similarly situated. The written disclosure shall be made immediately upon beginning employment, vocation or volunteer service.

L. Following initial registration pursuant to the provisions of this section:

(1) a sex offender required to register pursuant to the provisions of Subsection D of Section 29-11A-5 NMSA 1978 shall verify registration information with the county sheriff as provided in Subsection N of this section not less than once in each ninety-day period following the date of the sex offender's initial registration for the remainder of the sex offender's natural life;

(2) a sex offender required to register pursuant to the provisions of Subsection E of Section 29-11A-5 NMSA 1978 shall verify registration information with the county sheriff as provided in Subsection N of this section once every six months for a period of ten years; and

(3) an out-of-state registrant shall verify registration information with the county sheriff for whichever is the longer of:

(a) the duration of time remaining in the registrant's convicting jurisdiction and at the same frequency as required in that state or territory, but no less than once every six months; or

(b) the duration of time remaining that would be required for the equivalent offense in New Mexico.

M. Notwithstanding the provisions of Paragraph (2) of Subsection L of this section, if a sex offender is convicted a second or subsequent time for a sex offense set forth in Subsection E of Section 29-11A-5 NMSA 1978, the sex offender shall verify registration information with the county sheriff as provided in Subsection N of this section not less than once in each ninety-day period following the date of the sex offender's initial registration for the remainder of the sex offender's natural life.

N. At least fifteen days prior to the time a sex offender is required to verify registration information, the department shall send a verification form to the sex offender, by first class mail, containing the sex offender's current registration information and a notice of the date that the sex offender's next verification is due. The sex offender shall appear in person at a location designated by the department to verify the information contained on the form, to change the information as necessary and to sign a statement under oath that the information is true and correct. The department may photograph the sex offender at that time if the sex offender's appearance is significantly different from the photograph already contained in the sex offender's file. If a sex offender does not receive a verification form before the time that the sex offender is required to verify registration pursuant to Subsection L of this section, the sex offender shall appear at a location designated by the department to verify registration information as required by this section.

O. The department shall establish a secure system that will permit a sex offender to notify the department electronically of any change in registration information.

P. A sex offender who willfully or knowingly fails to comply with the registration or verification requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. A sex offender who willfully or knowingly fails to comply with the registration or verification requirements set forth in this section after a first or subsequent conviction for a violation pursuant to this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. The willful failure to comply with any registration or verification requirement set forth in this section shall be deemed part of a continuing transaction or occurrence. A conviction pursuant to this subsection shall not be considered a felony for purposes of the imposition of sentencing enhancements pursuant to the provisions of Section 31-18-17 NMSA 1978.

Q. A sex offender who willfully or knowingly provides false information when complying with the registration or verification requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. A sex offender who willfully or knowingly provides false information when complying with the registration or verification requirements set forth in this section after a first or subsequent conviction for a violation pursuant to this section is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. The willful providing by a sex offender of false information with respect to the registration or verification requirements set forth in this section shall be deemed part of a continuing transaction or occurrence. A conviction pursuant to this subsection shall not be considered a felony for purposes of the imposition of sentencing enhancements pursuant to the provisions of Section 31-18-17 NMSA 1978.

History: Laws 1995, ch. 106, § 4; 1999, ch. 19, § 4; 2000, ch. 8, § 2; 2005, ch. 279, § 2; 2013, ch. 152, § 2.

The 2013 amendment, effective July 1, 2013, required sex offenders to register and update information within five business days; in the title, after "required", added "verification"; in Subsection B, in the first sentence of the introductory paragraph, after "New Mexico shall", added "initially", in the second sentence, after "no later than", deleted "ten" and added "five business", and in the third sentence, after "sex offender", added "initially"; in Paragraph (4) of Subsection B, after "sex offender's current", added "physical and mailing" and after "mailing address", added "and the address of every place where the sex offender habitually lives"; added Paragraphs (8) through (13) of Subsection B; in Subsection D, in the first sentence, after "no later than", deleted "ten" and added "five business"; in Paragraph (1) of Subsection E, after "fingerprints", added "and a palm print"; in Paragraph (2) of Subsection E, at the beginning of the sentence, added "a physical description, including"; in Subsection F, after "registered changes", deleted "his residence within the same county" and added "any information required under this section", after "notice of the change" deleted "of address" and added "on a form approve by the department", after "no later than", deleted "ten" and added "five business", and after "five business days after", deleted "establishing his new residence" and added "the change occurs"; in Subsection G, in the first sentence, after "no later than", deleted "ten" and added "five business" and in the second sentence, after "no later than", deleted "ten" and added "five business"; in Subsection H, in the first sentence, after "required to register", added "is homeless or" and after "sex offender shall register", added "each address or temporary location" and in the second sentence, after "no later than", deleted "ten" and added "five business"; in Subsection J, in the first sentence, after "no later than", deleted "ten" and added "five business" and after "five business days after", added "beginning employment or" and in the second sentence, after "any change regarding", added "employment or", after "no later than", deleted "ten" and added "five business", and after "after the change in", deleted "his" and added "employment or"; in Paragraph (1) of Subsection L, after "Section 29-11A-5 NMSA 1978 shall", deleted "renew his" and added "verify", after "verify registration", added "information", after "county sheriff", added "as provided in Subsection N of this section", and after "registration for the", deleted "entirety" and added "remainder"; in Paragraph (2) of Subsection L, after "Section 29-11A-5 NMSA 1978 shall', deleted "annually renew his" and added "verify", after "verify registration" added "information", after "county sheriff", deleted "prior to December 31 of each subsequent calendar year" and added "as provided in Subsection N of this section once every six months"; added Paragraph (3) of Subsection L; in Subsection M, after "sex offender shall", deleted "renew his" and added "verify", after "verify registration", added "information", after "county sheriff", added "as provided in Subsection N of this section", and after "initial registration for the", deleted "entirety" and added "remainder"; added Subsections N and O; in Subsection P, in the first sentence, after "registration", added "or verification", in the second sentence, after "registration", added "or verification", and in the third sentence, after "registration", added "or verification", and in Subsection Q, in the first, second and third sentences, after "registration", added "or verification.

Applicability. — Laws 2013, ch. 152, § 5 provided that the provisions of the amendments to the Sex Offender Registration and Notification Act enacted by Laws 2013, ch. 152 are applicable to a person who, on or after July 1, 2013, is found guilty of committing a sex offense.

The 2005 amendment, effective July 1, 2005, provided in Subsection B that sex offender shall register after being released from a municipal or county jail, or a federal, military or tribal correctional facility, or detention center and that a sex offender shall register within ten days after his arrival in New Mexico; provided in Subsection C that a non-resident sex offender who is attending a public or private school or an institution of higher education in New Mexico shall register in the county in which the school or institution of higher education is located; provided in Subsection D that a sex offender who is attending a public or private school or an institution of higher education shall register within ten days after beginning school; provided in Subsection D(4) that a sex offender who is attending an institution of higher education must give his residence address and the address of his place of lodging in New Mexico; added Subsection E(3) to provide that the sheriff shall obtain a sample of the sex offender's DNA for inclusion in the sex offender DNA identification system; adds Subsection H to provide for the registration of a sex offender who does not have an established residence; added Subsection I to require a sex offender to disclose his status when he is employed, begins a vocation or is enrolled in an institution of higher education or changes his employment, vocation or enrollment status; added Subsection J to require a sex offender to disclose his status if he is employed or enrolled as a student at a public or private school; added Subsection K to require a sex offender to disclose his status when he is employed, begins a vocation or volunteers his services; deleted the former provisions in Subsection L that a sex offender annually renew his registration prior to December 31 of each subsequent calendar year for a period of twenty years; provided in Subsection L that a sex offender shall renew his registration not less than once in each ninety-day period for his natural life; added Subsection M to provide that a sex offender who is convicted of a sex offense set forth in Section 29-11A-5E NMSA 1978, he shall renew his registration once in each ninety-day period for his natural life; provided in Subsection N that if a sex offender knowingly fails to comply with the registration requirement he is guilty of a fourth degree felony, that a sex offender who willfully or knowingly fails to comply with the registration requirements of this section after a first or subsequent conviction under this section is guilty of a third degree felony, that a willful failure to comply with the requirements of this section is a continuing transaction or occurrence, and that a conviction under Subsection N is not a felony for purposes of imposing sentencing enhancements; and provided in Subsection O that a sex offender who knowingly provides false information is guilty of a fourth degree felony, that a sex offender who willfully or knowingly provides false information after a first or subsequent conviction under this section is guilty of a third degree felony, that the willful providing of false information is a continuing transaction or occurrence and that a conviction under Subsection N is not a felony for purposes of imposing sentencing enhancements.

Applicability. — Laws 2005, ch. 279, §14, effective July 1, 2005, provided that Laws 2005, ch. 279, §§ 1 through 13 apply to a person convicted of a sex offense on or after July 1, 2005 and a person convicted of a sex offense prior to July 1, 2005 and who, on July 1, 2005, was still incarcerated, on probation or on parole for commission of that sex offense.

The 2000 amendment, effective July 1, 2000, inserted "registration" near the end of the introductory paragraph in Subsection B and near the end of Subsection D; rewrote Subsection H, which formerly read "Following his initial registration pursuant to the provisions of this section, a sex offender shall annually renew his registration with the county sheriff prior to December 31 of each subsequent calendar year"; and substituted "fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978" for "misdemeanor and shall be punished by imprisonment for a definite term less than one year or a fine of not more than one thousand dollars ($1,000) or both" in Subsections I and J.

The 1999 amendment, effective July 1, 1999, in Subsection B substituted "ten days" for "thirty days" in the first sentence and "ten days" for "forty-five days" in the second sentence; substituted "he" for "the sex offender" in Paragraph B(1); added present Subsections C, D, and H; and redesignated former Subsections C through E, F, and G as Subsections E through G, I, and J, respectively.

Statutory elements of California and New Mexico offenses were not equivalent. — Defendant's conviction in California of the misdemeanor offense of annoying or molesting a child, which does not require touching or application of force, was not the equivalent of sexual contact of a minor, which requires touching or the application of force, was not a "sex offense" as that term is defined in the Sex Offender Registration and Notification Act, and did not require defendant to register as a sex offender in New Mexico. State v. Hall, 2011-NMCA-047, 149 N.M. 546, 252 P.3d 770, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Assistance of counsel. — Defense counsel has an affirmative duty to advise a defendant charged with a sex offense that a plea of guilty or no contest will almost certainly subject the defendant to the registration requirements of SORNA. Proper advice will also include a discussion regarding what SORNA registration will mean, both in terms of the specific registration and notification provisions set forth in this article, as well as the likely social consequences of being a registered sex offender. This is the minimum advice a defendant needs before deciding to waive his or her constitutional rights by entering into a plea agreement. Failure to so advise the defendant amounts to deficient performance under the Strickland test. State v. Edwards, 2007-NMCA-043, 141 N.M. 491, 157 P.3d 56, cert. quashed, 142 N.M. 436, 166 P.3d 1090.

Court cannot stay registration pending appeal. — Trial judges have neither the power nor the discretion to stay the application of the SORNA pending the outcome of an appeal. State v. Myers, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13, rev'g 2010-NMCA-007, 147 N.M. 574, 226 P.3d 673.

A trial court has discretion to stay Sex Offender Registration and Notification Act registration pending appeal. State v. Myers, 2010-NMCA-007, 147 N.M. 574, 226 P.3d 673, rev'd, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

Stay of registration pending appeal. — Where defendant was convicted of sexual exploitation of children by manufacturing child pornography; the diagnostic evaluation of defendant concluded that defendant is not a pedophile and that with treatment, defendant's risk of re-offending was low; defendant was required to inform the sheriff's department of defendant's current residence and work location and update the information with any changes; and the trial court released defendant pending appeal, the trial court did not abuse its discretion by staying defendant's registration as a sex offender pending the outcome of the appeal. State v. Myers, 2010-NMCA-007, 147 N.M. 574, 226 P.3d 673, rev'd, 2011-NMSC-028, 150 N.M. 1, 256 P.3d 13.

Not applicable to Native Americans. — The state does not have authority to require an Indian who was convicted of a sex offense in a court other than a New Mexico state court, is an Indian living in Indian country, and is not attending school or employed outside of Indian country, to comply with the requirements of Sex Offender Registration and Notification Act. State v. Atcitty, 2009-NMCA-086, 146 N.M. 781, 215 P.3d 90, cert. quashed, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

Insufficient evidence that defendant willfully failed to register. — Where the defendant was released from probation on the defendant's convictions for sex offenses in 1998; the defendant registered in 2003 after the defendant received a letter informing the defendant that the defendant was required to register; the defendant registered in 2004, but failed to register after 2004; the defendant's judgment and sentence for sex offenses, which was entered before the enactment of the Sex Offender Registration and Notification Act, did not mention any requirement that the defendant register as a sex offender; there was no evidence that when the defendant was released from probation, the defendant was informed of a duty to register as a sex offender; when the deputy sheriff validated the defendant's sex offender registry information he did not inform the defendant that the defendant had a continuing duty to register annually; there was no evidence that when the defendant registered in 2003 and 2004, the defendant was informed that he had the duty to register annually, the evidence failed to show that the defendant willfully failed to comply with the annual registration requirements. State v. Billington, 2009-NMCA-014, 145 N.M. 526, 201 P.3d 857, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

The only issue raised by an appeal of a conviction for failure to register as a sex offender is whether the defendant's failure to register was willful. State v. Burke, 2008-NMSC-052, 144 N.M. 772, 192 P.3d 767, rev'g 2007-NMCA-093, 142 N.M. 218, 164 P.3d 99.

The sheriff has discretion to adopt reasonable time, place and manner restrictions on the process of registration of sex offenders. State v. Burke, 2007-NMCA-093, 142 N.M. 218, 164 P.3d 99, rev'd, 2008-NMSC-052, 144 N.M. 772, 192 P.3d 767.

A protocol that restricted the time when sex offenders could register to the hours between 1:00 and 4:00 on Wednesday afternoon was reasonable. State v. Burke, 2007-NMCA-093, 142 N.M. 218, 164 P.3d 99, rev'd, 2008-NMSC-052, 144 N.M. 772, 192 P.3d 767.

No violation of due process. — Court's failure to advise defendant, at the time of his plea, of sex offender registration consequences under New Mexico's Sex Offender Registration and Notification Act did not violate due process of law. State v. Moore, 2004-NMCA-035, 135 N.M. 210, 86 P.3d 635.

Act does not constitute punishment. — Although the notification and registration provisions under Sex Offender Registration and Notification Act are immediate and automatic, they do not constitute punishment for a crime. State v. Moore, 2004-NMCA-035, 135 N.M. 210, 86 P.3d 635.

Registration and notification consequences are collateral. — Sex offender registration law consequences are collateral consequences of a plea and therefore not consequences that require a court, under the due process clause, to advise a defendant of the consequences of registration under Sex Offender Registration and Notification Act. State v. Moore, 2004-NMCA-035, 135 N.M. 210, 86 P.3d 635.

Role of court. — The court does not impose Sex Offender Registration and Notification Act provisions or have discretion to modify them in accepting a plea. State v. Moore, 2004-NMCA-035, 135 N.M. 210, 86 P.3d 635.

Where defendant was charged with crimes that require, on conviction, registration under SORNA and where defendant pleaded no contest to crimes that do not require registration, district court did not have the authority to include, as a condition of defendant's probation, that defendant provide the sheriff information required under SORNA and to give the sheriff the discretion to process the information under SORNA. State v. Williams, 2006-NMCA-092, 140 N.M. 194, 141 P.3d 538.

Effect of vacated conviction. — Where petitioner positioned petitioner's truck across the roadway to block the path of the victim's car, entered the victim's car and raped the victim; petitioner was convicted of first-degree kidnapping and second-degree criminal sexual penetration; petitioner was required to register as a sex offender; the court of appeals vacated the rape conviction because petitioner's conviction for both first-degree kidnapping and rape would result in double punishment for the same conduct in violation of the double jeopardy clause; petitioner argued that petitioner was no longer required to register as a sex offender; the jury found petitioner guilty of both first-degree kidnapping and rape based on the same conduct; and the elements of first-degree kidnapping were supported by the elements of the rape conviction, petitioner was required to register as a sex offender. Montoya v. Driggers, 2014-NMSC-009.

Effect of dismissed charges. — When a deferred sentence expires and charges are dismissed, a conviction is not eradicated under the Sex Offender Registration and Notification Act, Chapter 29, Article 11A NMSA 1978; therefore, the defendant is still subject to the registration requirements of this section. State v. Brothers, 2002-NMCA-110, 133 N.M. 36, 59 P.3d 1268, cert. denied, 133 N.M. 30, 59 P.3d 1262.

Effect of conditional discharge. — A person granted a conditional discharge under Section 31-20-13 NMSA 1978 is not required to register as a sex offender under this section. State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177.

Effect of release from incarceration. — A registered sex offender is required to renew the offender's registration upon release from custody of the corrections department on unrelated charges if the offender returns to the offender's previous registered residence. State v. Parrish, 2013-NMCA-066, 304 P.3d 730, cert. denied, 2013-NMCERT-004.

Where defendant was a convicted sex offender and was properly registered; defendant was subsequently incarcerated in a department of corrections facility on an unrelated matter; on the day of defendant's release from the facility, defendant was given a copy of the department's notice to register form, which defendant signed and which stated that a convicted sex offender was required to register after being released from custody; and defendant returned to defendant's registered residence, defendant was required to register upon release from custody. State v. Parrish, 2013-NMCA-066, 304 P.3d 730, cert. denied, 2013-NMCERT-004.