New Mexico Administrative Code › Title 10 - PUBLIC SAFETY AND LAW ENFORCEMENT › Chapter 2 - DEPARTMENT OF PUBLIC SAFETY › Part 3 - PROCEDURE TO CONTEST SORNA EQUIVALENCY DETERMINATION › Section 10.2.3.10 - DETERMINATION BY DEPARTMENT OF NEED TO REGISTER

Current through Register Vol. 35, No. 13, July 16, 2024
A. Within 45 calendar days after the
				department receives the initial registration information the out-of-state
				registrant is required under Section
				29-11A-4
				NMSA 1978 and Section 10.2.3.9 NMAC to provide to the sheriff, the department
				shall complete a translation and advise the out-of-state registrant and the
				sheriff whether the out-of-state registrant was convicted in another
				jurisdiction of a sex offense equivalent to one or more of those sex offenses
				identified in Subsection I of Section
				29-11A-3
				NMSA 1978 and is required to register as a sex offender in New
				Mexico.
B. The standard to be used
				by the department in determining whether the out-of-state conviction is
				equivalent to a sex offense listed in Section
				29-11A-4
				NMSA 1978 is one of clear and convincing evidence.
C. If the department does not receive the
				statutorily required information and the documents the out-of-state registrant
				is required by this rule to provide to the sheriff, or if the statutorily
				required information and documents provided to the sheriff and forwarded to the
				department are insufficient to enable the department to complete the
				translation and render a decision on the equivalency of the non-New Mexico
				conviction based on clear and convincing evidence, the department shall advise
				the out-of-state registrant and the sheriff that additional time not to exceed
				forty-five days will be needed to complete the translation.
D. While the translation is pending, no
				information regarding the out-of-state registrant shall be entered in the
				public facing portion of the local or state central registry.
E. If the department determines that the
				non-New Mexico conviction of the out-of-state registrant is not the equivalent
				of a sex offense identified in Subsection I of Section
				29-11A-3
				NMSA 1978, the department shall notify the out-of-state registrant and sheriff
				in writing, of that decision and no information regarding the out-of-state
				registrant shall be placed on the public facing portion of either the local or
				central registry. In the event additional information is later brought to the
				department's attention, the department may revisit its original
				decision.
F. If the department
				determines that the non-New Mexico conviction of the out-of-state registrant is
				the equivalent of a sex offense identified in Section
				29-11A-3
				NMSA 1978, the department shall notify the out-of-state registrant, in writing,
				of that initial decision and shall serve the notification on the out-of-state
				registrant by certified mail, return receipt requested, and provide a copy to
				the sheriff. The initial determination shall include a list of all documents
				reviewed by the department in conducting the translation. The initial
				determination shall advise the out-of-state registrant that the registrant may
				request reconsideration of the department's decision, by requesting the same,
				in writing, within 14 calendar days of receipt of the initial determination. If
				no timely request for reconsideration is received, the department shall issue
				its final determination and post the statutorily required information regarding
				the out-of-state registrant on the public facing portion of the central
				registry of sex offenders maintained by the department and shall notify the
				sheriff that the statutorily required information regarding the out-of-state
				registrant may also be posted on the local directory, in accordance with
				Section
				29-11A-5
				NMSA 1978.
G. Upon receipt of a
				timely request for reconsideration of the department's initial determination,
				the department shall schedule a meeting with the out-of-state registrant, on a
				mutually agreeable date and time, at which meeting the out-of-state registrant
				may present any additional information, documents or argument that the
				out-of-state registrant believes supports the registrant's contention that the
				out-of-state conviction is not the equivalent of a sex offense identified in
				Subsection I of Section
				29-11A-3
				NMSA 1978 and that the registrant is not legally required to register in New
				Mexico. At the meeting, the out-of-state registrant may be represented by
				counsel, hired at the out-of-state registrant's expense.
H. Within 21 calendar days of the meeting
				described in Subsection G of Section 10.2.3.10 NMAC, the department shall issue
				its written final determination regarding the translation. This notice shall be
				served on the out-of-state registrant by certified mail, return receipt
				requested. The department shall send a copy of the final determination to the
				sheriff.
I. An out-of-state
				registrant who is aggrieved by the final determination of the department that
				the out-of-state conviction is the equivalent of a sex offense identified in
				Section
				29-11A-3
				NMSA 1978 and that the out-of-state registrant must register in New Mexico, may
				seek judicial review of the decision by filing a petition for writ of
				certiorari, in accordance with New Mexico Rule of Civil Procedure Rule 1-075
				NMRA, in the district court in which the department is located, within 30 days
				of the date of the department's final determination.
J. Neither the sheriff nor the department
				shall post any information regarding the out-of-state registrant on the public
				facing portion of the local or central registry until the time for filing a
				petition for writ of certiorari has expired. If a petition is filed, neither
				the sheriff nor the department shall post any information regarding the
				out-of-state registrant on the public facing portion of the local or central
				registry until served with a court order advising that the out-of-state
				registrant must register in New Mexico.
K. If the department learns that information
				regarding an out-of-state registrant has been published on a public facing
				portion of a local or the central registry, prior to the department's final
				determination and the expiration of the period to seek judicial review, or, if
				judicial review has been sought, prior to the final resolution of those
				proceedings, the department shall remove any information on the public facing
				portion of the registry, pertaining to the out-of-state registrant, pending
				resolution of the equivalency determination.