Possession of a Controlled Substance in New Mexico

All states regulate the possession of controlled substances, though they can differ in their definition of controlled substances and penalties for possession. New Mexico classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled substances but also the compounds used to manufacture them.

This article discusses the possession of controlled substances for personal use only. Possession of drugs for sale or distribution carries different penalties.

How New Mexico Classifies Controlled Substances

New Mexico classifies controlled substances into five schedules (I to V), according to their potential for abuse and accepted medical use. Examples of drugs within each schedule are provided below.

• Schedule I drugs include heroin, MDMA (ecstasy), LSD, and psilocybin (magic mushrooms).
• Schedule II drugs include opium, morphine, codeine, oxycodone, amphetamines, fentanyl, hydrocodone, methadone, and cocaine.
• Schedule III drugs include central nervous system depressants and stimulants and barbituric acids.
• Schedule IV drugs include diazepam (Valium), clotiazepam, zolpidem (Ambien), alprazolam (Xanax), and tramadol.
• Schedule V drugs include medicines that contain very small amounts of specified narcotic drugs.

What Are the Penalties for Illegal Drug Possession in New Mexico?

New Mexico law makes it illegal to possess, purchase, or have under one's control a controlled substance without a valid prescription. Penalties for such unlawful conduct vary according to the class and amount of the drug and whether the offense involved any other aggravating factors. This section reviews possession crimes except for marijuana and synthetic cannabinoids (which are discussed below).

Fourth-Degree Felony Drug Possession

Possession of the following controlled substances constitutes a fourth-degree felony:

• methamphetamine
• gamma hydroxybutyric acid (GHB)
• phencyclidine (PCP)
• flunitrazepam (Rohypnol)
• gamma butyrolactone
• 1-4 butane diol, and
• narcotic drugs in Schedules I and II.

A person convicted of a fourth-degree felony faces up to 18 months in prison and a $5,000 fine.

Misdemeanor Drug Possession

For most other drug possession offenses not listed above, a person will face a misdemeanor penalty of up to 364 days in jail and a $1,000 fine.

Enhancements for Possession Offenses in a Drug-Free Zone

Penalties increase when an offender possesses a controlled substance in a drug-free school zone.

A defendant guilty of having phencyclidine or a Schedule I or II narcotic commits a third-degree felony and faces up to three years in prison and a $5,000 fine. For all other drug possession offenses committed in a school zone, the law imposes fourth-degree felony penalties of up to 18 months in prison and a $5,000 fine.

What Are the Penalties for Illegal Possession of Cannabis in New Mexico?

When it comes to cannabis, commonly referred to as marijuana, New Mexico law varies depending on the age of the user and the amount involved.

Personal Use Limits for Cannabis Products in Public

New Mexico law classifies "personal use amounts" as 2 ounces or less of cannabis, 16 grams or less of hashish, and 800 milligrams or less of cannabis edibles. A person who is 21 or older may legally use and possess cannabis products that don't exceed the personal use amount in public.

Violations Involving Cannabis Products in Public

Illegal possession of cannabis products in public carries the following penalties.

Under 21. A person younger than 21 who uses or possesses a cannabis product is guilty of a civil violation and can be required to complete a four-hour drug education course and perform community service.

21 and older. Adults age 21 and older who possess more than 2 ounces but not more than 8 ounces of cannabis, more than 16 grams of cannabis extract, or more than 800 milligrams of edible cannabis are guilty of a misdemeanor and subject to up to 364 days in jail and a $1,000 fine. An offender who has more than 8 ounces of cannabis, 64 grams of cannabis extract, or 3,200 milligrams of edible cannabis faces a fourth-degree felony conviction, which carries up to 18 months in prison and a $5,000 fine.

What Are the Penalties for Illegal Possession of Synthetic Cannabinoids in New Mexico?

A person who possesses any amount of a synthetic cannabinoid violates the law.

One ounce or less. A first offense for possession of one ounce or less constitutes a petty misdemeanor, which subjects a guilty defendant to up to 15 days in jail and a fine of $50 to $100. Second and subsequent offenses are misdemeanors and carry up to 364 days in jail and a $100 to $1,000 fine.

Less than eight ounces. An offender who has more than one ounce but less than eight also faces a misdemeanor charge and up to 364 days in jail and a $100 to $1,000 fine.

Eight ounces or more. A person who possesses eight ounces or more of synthetic cannabinoids is guilty of a fourth-degree felony, and upon conviction, subject to up to 18 months' imprisonment and a $5,000 fine.

Drug-free school zones. The penalties for possession of synthetic cannabinoids in drug-free school zones go up one offense level. For example, a person who possesses one to eight ounces of synthetic cannabinoids in a school zone faces a fourth-degree felony charge and up to 18 months in prison and a $5,000 fine.

Will a First-Time Possession Offense Result in Jail Time in New Mexico?

Yes, it's possible; however, New Mexico offers a few sentencing alternatives that could benefit first-time offenders and those charged with a lower-level or nonviolent offense, such as simple drug possession.

Pre-Prosecution Diversion

Pre-prosecution diversion is for first-time, low-level, and non-violent offenders. The program diverts individuals who would normally go through the criminal justice system away from the court process and into programs that are meant to rehabilitate, rather than punish, in hopes of assisting them in avoiding future criminal activity.

Conditional Discharge for First-Time Possession Charges

When a defendant pleads guilty to a drug possession charge, a court may hold off on entering judgment, defer further proceedings, and place the defendant on probation for up to one year. During the period of probation, the defendant is required to do certain things, such as participate in a drug treatment program. If a defendant successfully completes the probationary term, the judge will dismiss the case. A conditional discharge under this section is a one-time deal.

Deferred or Suspended Sentence

A judge can also convict the defendant but hold off on entering a sentence (a deferred sentence) or hold off on sending the defendant to prison (a suspended sentence). In either case, the judge must place the defendant on probation.

If a defendant successfully completes a deferred sentence, the judge can dismiss the criminal charges. For a suspended sentence, successful completion still results in a conviction, but the defendant avoids time behind bars.

Drug Treatment Court

Defendants with severe substance abuse issues may be eligible to participate in a New Mexico drug treatment court. Drug court is often the last alternative for many offenders facing prison time to receive rehabilitation services outside of a formal prison setting. This specialty court is a multi-agency effort that offers judicial monitoring of intensive treatment and strict supervision of addicts in drug cases, particularly those involving use and possession.

Possible Defenses to Drug Possession Charges in New Mexico

Defendants facing controlled substance charges have several defense strategies available to them.

Actual innocence. Defendants charged with a drug-related crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "The alleged conduct did not occur."

Lack of knowledge. Defendants can try to show the jury that they did not have knowledge of the controlled substance being in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of heroin under the hitchhiker's seat, the defense will argue the defendant had no knowledge of the bag hidden under their seat.

Unlawful search and seizure. A common defense in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether. Defense teams do this by scrutinizing and calling out faulty or suspect police methods used in gathering or handling the evidence.

Limited immunity. New Mexico's limited immunity law provides that any person who is experiencing a drug overdose or someone rendering aid to that person should not be arrested, charged, prosecuted, or otherwise penalized for a drug possession violation if the evidence for the alleged violation was obtained as a result of the need for seeking medical assistance.

Talk to a Lawyer

If you've been charged with a drug-related offense in New Mexico, contact a local criminal defense attorney as soon as possible. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.

(N.M. Stat. §§ 26-2C-30, 30-31-5, 30-31-6, 30-31-7, 30-31-8, 30-31-9, 30-31-10, 30-31-23, 30-31-27.1, 31-16A-2, 31-16A-4, 31-16A-6, 31-16A-7, 31-18-15, 31-20-3 (2023).)