2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 21 - Sentence, Pardons and Paroles
Section 31-21-6 - Protection of records.
All social records, including presentence reports, pre-parole reports and supervision histories, obtained by the board are privileged and shall not be disclosed directly or indirectly to anyone other than the board, director, sentencing guidelines commission or sentencing judge, but authorities of the institution in which the prisoner is confined shall have access to all records and reports concerning the prisoner, and the sentencing judge, board and director shall have access to all records concerning the prisoner. The board, in the case of parole records, and the sentencing judge, in the case of probation records, in their discretion, whenever the best interest or welfare of a particular probationer or prisoner makes such action desirable or helpful, may permit inspection of the reports, or parts thereof, by the probationer, prisoner or his attorney. The sentencing guidelines commission shall have access to the social records for statistical and policymaking purposes only and shall not release any information identifying any individual.
History: 1953 Comp., § 41-17-18, enacted by Laws 1955, ch. 232, § 7; 1963, ch. 301, § 7; 1989, ch. 362, § 1.
ANNOTATIONSCross references. — For state board of probation and parole referring to the corrections division, see 33-1-7 NMSA 1978.
The 1989 amendment, effective April 7, 1989, inserted "sentencing guidelines commission" near the middle of the first sentence and added the last sentence.
No privilege regarding communications made by inmate to probation officer. — Nothing in this section makes privileged a communication made by a criminal to a probation and parole officer in the course of a presentence investigation. State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783.
Privilege inapplicable to drug tests. — Defendants were subjected to random urinalysis testing as a condition of probation or parole and tested positive for the presence of cocaine. Subsequently, they argued that their drug test results should not have been used to prosecute them for possession of cocaine because disclosure of the drug test results violates the privilege against disclosure found in this section. However the drug test results are more akin to investigative reports than social records; thus, the privilege set forth is inapplicable. State v. Rickard, 1994-NMCA-083, 118 N.M. 312, 881 P.2d 57, rev'd in part on other grounds, 1994-NMSC-111, 118 N.M. 586, 884 P.2d 477.
A defendant could not assert a privilege against the disclosure of drug test results since the drug test results are not social records. State v. Ware, 1994-NMCA-132, 118 N.M. 703, 884 P.2d 1182, cert. denied, 118 N.M. 731, 885 P.2d 1325.
Privilege inapplicable to status as parolee or probationer. — This section did not apply to a list containing the defendant's name and parole status obtained from the probation and parole board by agents of the Immigration and Naturalization Service. U. S. v. Guerrero-Hernandez, 95 F.3d 983 (10th Cir. 1996).
Time to raise claim of privilege, when available. — Defendant cannot on appeal be heard to complain that a communication made by defendant to a probation and parole officer in the course of a presentence investigation was privileged, when no claim of privilege was ever raised in the trial court. State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783.
Reference to records during board's deliberations. — If in the board's deliberations any reference is made to any of these records, such references and the information contained therein must be made under circumstances such that the prohibited disclosure may not occur. It is the board's duty, imposed by the legislature, to keep and guard this information from those not authorized to receive it. And the statute makes no exception of members of the press, even if these would not divulge the information further. 1956 Op. Att'y Gen. No. 56-6509.
When board's minutes may be distributed to press. — There is no objection to a distribution to the press of the minutes of the board's meetings so long as these do not contain references or information secured from privileged records covered by this section. 1956 Op. Att'y Gen. No. 56-6509.
Mailing of probation records. — The decision to allow probation records to be mailed to an attorney is within the discretion of the sentencing judge. 1971 Op. Att'y Gen. No. 71-25.
Law reviews. — For note, "Due Process, Equal Protection and the New Mexico Parole System," see 2 N.M. L. Rev. 234 (1972).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 62A Am. Jur. 2d Privacy §§ 60, 206.
Defendant's right to disclosure of presentence report, 40 A.L.R.3d 681.
