A. An order of protection granted under the Family Violence Protection Act shall be filed with the clerk of the court, and a copy shall be sent by the clerk to the local law enforcement agency. The order shall be personally served upon the restrained party, unless the restrained party or the restrained party's attorney was present at the time the order was issued. The order shall be filed and served without cost to the protected party.
B. A local law enforcement agency receiving an order of protection from the clerk of the court that was issued under the Family Violence Protection Act shall have the order entered in the national crime information center's order of protection file within seventy-two hours of receipt. This does not include temporary orders of protection entered pursuant to the provisions of Section 40-13-4 NMSA 1978.
C. An order of protection granted by the court involving custody or support shall be effective for a fixed period of time not to exceed six months. The order may be extended for good cause upon motion of the protected party for an additional period of time not to exceed six months. Injunctive orders shall continue until modified or rescinded upon motion by either party or until the court approves a subsequent consent agreement entered into by the parties.
D. A peace officer may arrest without a warrant and take into custody a restrained party whom the peace officer has probable cause to believe has violated an order of protection that is issued pursuant to the Family Violence Protection Act or entitled to full faith and credit.
E. A restrained party convicted of violating an order of protection granted by a court under the Family Violence Protection Act is guilty of a misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978. Upon a second or subsequent conviction, an offender shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.
F. In addition to any other punishment provided in the Family Violence Protection Act, the court shall order a person convicted to make full restitution to the party injured by the violation of an order of protection and shall order the person convicted to participate in and complete a program of professional counseling, at the person's own expense, if possible.
G. In addition to charging the person with violating an order of protection, a peace officer shall file all other possible criminal charges arising from an incident of domestic abuse when probable cause exists.
H. The remedies provided in the Family Violence Protection Act are in addition to any other civil or criminal remedy available to the protected party or the state.
History: Laws 1987, ch. 286, § 6; 1993, ch. 109, § 4; 1995, ch. 176, § 3; 1997, ch. 59, § 1; 1999, ch. 48, § 1; 2007, ch. 81, § 1; 2008, ch. 40, § 8; 2013, ch. 47, § 10.
ANNOTATIONSThe 2013 amendment, effective July 1, 2013, deleted provisions that provided for the enforcement of orders of protection issued by tribal courts and courts of other states; in Subsection D, after "A peace officer", deleted "shall" and added "may"; and deleted former Subsection E, which required state courts to give full faith and credit to protection orders issued by tribal courts and courts in other states, unless the protection order was not based on a pleading seeking a protection order or findings that each party was entitled to a protection order.
The 2008 amendment, effective July 1, 2008, changed "petitioner" to "protected party" and "respondent" to "restrained party".
The 2007 amendment, effective June 15, 2007, adds a new Subsection B to require local law enforcement agencies to enter orders of protection in the national crime information center's order of protection file within 72 hours of receipt.
The 1999 amendment, effective July 1, 1999, in Subsection D added "and orders of protection issued by the courts and other states" at the end of the first sentence, added the second sentence, and added Paragraphs (1) and (2).
The 1997 amendment, effective June 20, 1997, inserted "filed and" preceding "served" in the last sentence of Subsection A.
The 1995 amendment, effective July 1, 1995, deleted the first part of the last sentence of Subsection A which read, "If the petitioner has been found by the court to be unable to pay court costs", and substituted "abuse" for "violence" in Subsection G.
The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "local law enforcement agency" for "to the state police or to the municipal police of the city in which the court is located" in the first sentence; in Subsection B, in the first sentence, inserted "involving custody or support" and substituted "six" for "three", substituted "six" for "three" in the second sentence, and added the third sentence; added Subsections D through G and redesignated former Subsection D as present Subsection H.
Knowledge is an element of the crime of violating an order of protection which requires the state to prove knowledge of the protective order and the presence of the protected person within the protected zone. State v. Ramos, 2013-NMSC-031.
Where defendant was tried for violating a protection order; the district court refused defendant's jury instruction that required the jury to find that defendant "knowingly" violated the protection order; and the district court granted defendant's alternative request to give the jury the general criminal intent instruction consistent with UJI 14-141 NMRA, the general criminal intent instruction was insufficient because knowledge and intent are separate, not synonymous, elements and the district court erred in failing to instruct the jury of a knowing violation. State v. Ramos, 2013-NMSC-031.
Double jeopardy. — Where defendant had been convicted of contempt, a misdemeanor, for violating a domestic violence protective order and sentenced to jail time, double jeopardy did not bar prosecution of defendant for the offenses of stalking and harassment stemming from the same conduct that gave rise to the contempt adjudication. State v. Gonzales, 1997-NMCA-039, 123 N.M. 337, 940 P.2d 185.
Because the crimes of kidnapping and attempted criminal sexual penetration contain elements not contained in the order prohibiting domestic violence (OPDV) obtained by victim against defendant, defendant's double jeopardy rights were not violated by his conviction for those crimes following his conviction for contempt for violating the OPDV. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. denied, 127 N.M. 392, 981 P.2d 1210.
Where the order of protection clearly and unambiguously ordered defendant not to "contact" victim, each and every time defendant called victim on two separate dates in the same year, he made a "contact" with victim in violation of the order of protection. Because the legislature has made its intent clear that each violation will be punished separately, defendant's right to be free from double jeopardy in sentencing was not violated. State v. McGee, 2004-NMCA-014, 135 N.M. 73, 84 P.3d 690, cert denied, 2004-NMCERT-001 135 N.M. 160, 85 P.3d 802.
Intent of act. — The Family Violence Protection Act clearly reflects its intent that each violation shall be subject to a separate prosecution and punishment. State v. McGee, 2004-NMCA-014, 135 N.M. 73, 84 P.3d 690, cert denied, 2004-NMCERT-001 135 N.M. 160, 85 P.3d 802.
Law reviews. — For article, "The New Mexico Law Review Presents a Symposium on Enforcing the Judgments of Tribal Courts: A Different Kind of Symmetry," see 34 N.M.L. Rev. 263 (2004).