N.M. Admin. Code § 10.2.3.10 - DETERMINATION BY DEPARTMENT OF NEED TO REGISTER

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.

Notes

N.M. Admin. Code § 10.2.3.10

Adopted by New Mexico Register, Volume XXXII, Issue 12, June 22, 2021, eff. 7/1/2021