2023 New Mexico Statutes › Chapter 43 - Commitment Procedures › Article 2 - Alcoholics and Intoxicated Persons; Detoxification › Section 43-2-8 - Protective custody.

A. An intoxicated or incapacitated person may be committed to a treatment facility at the request of an authorized person for protective custody, if the authorized person has probable cause to believe that the person to be committed:
(1) is disorderly in a public place;
(2) is unable to care for the person's own safety;
(3) has threatened, attempted or inflicted physical harm on himself or another;
(4) has threatened, attempted or inflicted damage to the property of another;
(5) is likely to inflict serious physical harm on himself;
(6) is likely to inflict serious physical harm on another; or
(7) is incapacitated by alcohol or drugs.
A refusal to undergo treatment does not constitute conclusive evidence of lack of judgment as to the need for treatment.
B. An authorized person shall make a written application for commitment under this section, directed to the administration of the treatment facility. The application shall state facts in support of the need for protective custody.
C. Upon approval of the form of the application by the administration in charge of the treatment facility, the person shall be retained at the facility to which the person was admitted or transferred to another appropriate treatment facility until discharged under Subsection E of this section.
D. The administration in charge of a treatment facility may refuse an application if the treatment facility is at its relevant capacity or if the person to be committed is deemed too ill, injured, disruptive or dangerous to himself or another to be managed at the treatment facility.
E. An intoxicated person transported to a treatment facility pursuant to this subsection shall not be detained at the facility:
(1) once the person's blood or breath alcohol concentration level is zero, if alcohol-impaired, and there is no probable cause to believe the person remains at risk of physical harm to himself or another; or
(2) for more than seventy-two hours after admission, absent pendency of a petition filed pursuant to Section 43-2-9 NMSA 1978.
F. An intoxicated person held in protective custody pursuant to the Detoxification Reform Act shall not be considered to have been arrested or charged with any crime.
G. A record of protective custody shall not be considered as an arrest or criminal record.
H. A copy of the written application for commitment and a written explanation of the person's right to contact counsel shall be given by the administration to the person as soon as practicable after commitment. The administration of the treatment facility shall arrange translation of the application and explanation of rights for those who are unable to read the same. The administration shall also provide a reasonable opportunity for the person to contact counsel.
History:
1953 Comp., § 46-12-6.1, enacted by Laws 1977, ch. 374, § 5; 1979, ch. 264, § 2; 1985, ch. 182, § 1; 1989, ch. 47, § 4; 2005, ch. 198, § 5.
ANNOTATIONS
The 2005 amendment,
effective July 1, 2005, changed "drug-impaired" to "incapacitated" in Subsection A; provided in Subsection A that an intoxicated or incapacitated person may be committed at the request or an authorized person for protective custody if the authorized person has reasonable cause to believe the person has committed the acts listed in Subsections A(1) through (7); added Subsections A(1), (2) and (4); deleted former Subsection A(5), which provided that a person could be committed to emergency treatment if he had been taken into protective custody three or more times within thirty consecutive days because of intoxication or drug impaired condition; deleted the former provisions of Subsection B that a physician, spouse, guardian or relative could apply for commitment, that the application be directed to the district attorney if a patient is in residence, that the application state facts in support of emergency treatment and be accompanied by a physican's certification supporting the need for treatment and that an application of a peace officer or public service officer be accompanied by a certification of three or more dates on which the person was placed in protective custody for intoxication or drug impairment; deleted the former provisions of Subsection C that upon approval of the application, the person shall be brought to the facility by the applicant for commitment, a peace officer or the person's spouse, guardian or other person; provided in Subsection D that the administration may refuse an application if the treatment facility is at its capacity or if the person is too ill, injured, disruptive or dangerous to himself or to others to be managed at the facility; deleted the former provision of Subsection E which provided for the discharge of the person committed; added Subsection E; added Subsection F; and added Subsection G.
The 1989 amendment,
effective June 16, 1989, inserted "or drug impaired" in the introductory paragraph of Subsection A, in Subsection A(5), and in the last sentence of Subsection B; inserted "or drugs" in Subsection A(4); and inserted "NMSA 1978" near the end of Subsection A(5).
Probable cause.
— Where defendant was intoxicated to the point that defendant was stumbling and unable to keep defendant's balance, the officer had probable cause to believe that defendant was unable to care for defendant's own safety and had authority to take defendant into custody.
State v. Phillips
, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146, cert. quashed, 2010-NMCERT-001, 147 N.M. 675, 227 P.3d 1057.