New Mexico Assault and Battery: Deadly Weapon & Other Aggravated Charges

Talk to a Criminal Defense Lawyer

Enter Your Zip Code to Connect with a Lawyer Serving Your Area

Gavel and Scales

In New Mexico, the crime of assault is an attempt to commit a physical attack, or intentional threats, words, or actions that cause a person to feel afraid of impending violence. Assault does not involve actual physical contact. For example, attempting to hit someone or threatening to hit a person is an assault. In New Mexico, actual offensive physical contact, such as punching another person or hitting someone with an object, is a battery.

An assault or battery is generally a petty misdemeanor, unless it qualifies as an aggravated assault, aggravated battery or an assault with the intent to commit a violent felony. The crime of aggravated assault, which includes assault with a deadly weapon, usually is a fourth degree felony in New Mexico. (NMSA 1978, §30-3-2.) The crime of aggravated battery, which also includes battery with a deadly weapon, usually is a misdemeanor or a third degree felony.  (NMSA 1978, §30-3-5.) Someone who commits an aggravated assault or battery in New Mexico can be sentenced to time in jail or prison, or to probation, and a fine.

What is Aggravated Assault?

The New Mexico statute defines the following acts as aggravated assault:

  •  threatening or attempting to strike or otherwise injure someone with a deadly weapon
  •  threatening or attempting to strike or injure another while concealing one’s identity
  •  threatening or attempting to strike or apply physical force to another with the intent of committing a felony. (NMSA 1978, §30-3-2.)

While aggravated assault generally is a fourth degree felony, committing an aggravated assault on a school employee, a sports official (such as a referee at a public sporting event), or health care worker (such as a doctor, nurse, or paramedic) while the employee, worker or official is carrying out his duties can constitute a third degree felony and result in greater penalties than those normally imposed for aggravated assault.  (NMSA 1978, §§ 30-3-9, 30-3-9.1, 30-3-9.2.) 

Assault While Concealing Identity

A person who commits an assault while concealing his identity does so by wearing an article of clothing that covers the body, head, or face; or by wearing some type of disguise. Common examples of this are wearing a mask, wig, or sunglasses.

Assault With the Intent to Commit a Felony

An assault that’s carried out while attempting to commit a separate felony is also a type of aggravated assault. For instance, someone who shoplifts valuable merchandise and then points a gun at the clerk while running away has committed an assault while intending to commit a felony  (the shoplifting).

What is Aggravated Battery?

The New Mexico statute defines aggravated battery as touching someone in an offensive or angry manner with the intent to injure the victim or another person, with a deadly weapon or in a way that: 

  •  could cause death or great bodily harm
  •  causes great bodily harm, or
  •  causes an injury that is not likely to result in death or great bodily harm but that does result in “painful temporary disfigurement or   temporary loss or impairment” of the function of any organ or limb of the body. (NMSA 1978, §30-3-5.)

An aggravated battery that results only in temporary disfigurement or impairment of a limb or organ is a misdemeanor. This same aggravated battery on a school employee, a sports official (such as a referee at a public sporting event), or health care worker (such as a doctor, nurse, or paramedic) while the employee, worker or official is carrying out his duties, however, is a fourth degree felony. (NMSA 1978, §§ 30-3-9, 30-3-9.1, 30-3-9.2.)

Aggravated battery with a deadly weapon and aggravated battery that involves great bodily harm always is a third degree felony.   

Deadly Weapons

An object is a deadly weapon if it can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons. Other objects, such as rocks, bricks, or even a boot can constitute a deadly weapon, depending on the circumstances of the case. A boot, for example, normally may not be considered a deadly weapon but if it is a heavy, steel toed boot, a person wearing the boots likely could cause serious injury or even death by kicking another person with them.

Threatening to beat someone up with brass knuckles or to “break your legs” while wielding a metal bar and speaking in a menacing or angry manner also constitutes assault with a deadly weapon because the statement and menacing behavior is made and occurs while wielding a weapon that could cause death or great injury.

Beating someone up with brass knuckles or striking another with a metal pipe is an aggravated battery because either of these objects could cause death or very serious, painful injury.

Great Bodily Harm and Temporary Disfigurement

      Great bodily harm is a serious injury involving:

  •  a serious risk of death
  •  permanent disfigurement such as a visible scar on someone’s face
  •  loss of a limb or an organ, or
  •  permanent or long term impairment of a limb or an organ which would include paralysis, a limp, or a spinal injury or injury to the liver, lung or other organ that requires surgery and a long rehabilitation period.

Temporary disfigurement is an injury such as cuts and bruises to the face or other part of the body that heal within a reasonable period and do not leave visible scarring.

Penalties for Aggravated Assault in New Mexico

A person who is convicted of aggravated assault in New Mexico is guilty of a fourth degree felony and faces the following possible penalties:

  • up to two years in prison but not less than one year
  • a fine up to $5,000
  • probation up to two years
  • parole for one year, and
  • restitution. (NMSA 1978, §31-18-15.)

Penalties for Aggravated Battery in New Mexico

A person who is convicted of misdemeanor aggravated battery faces the following possible penalties:

  • up to one year in county jail
  • a fine up to $1000
  • probation up to one year, and
  • restitution. (NMSA 1978, §31-19-1.)

A person who is convicted of fourth degree felony aggravated battery faces the same penalties as those imposed for aggravated assault.

The following are the possible penalties for third degree felony aggravated battery:

  • up to four years in prison but not less than two years
  • a fine up to $5,000
  • probation up to four years, and
  • restitution. (NMSA 1978, §31-18-15.)

Prison and Parole

The basic sentence for a felony in New Mexico is one third less than the maximum penalties listed above (eighteen months for a fourth degree felony and three years for a third degree felony). The prosecutor can request a sentence harsher than the basic sentence by presenting evidence of “aggravating circumstances,” asking that the basic sentence be increased by one-third, up to two years for a fourth degree felony and up to four years for a third degree felony. The court must conduct a hearing on this issue and the defendant is entitled to a jury (or may waive that right and have the hearing before the judge). If the jury or judge finds that there are aggravating circumstances (that, for instance, the defendant’s conduct was especially cruel or brutal), the judge will decide what sentence to impose, up to the maximum of two years. (NMSA 1978, §31-18-15.1.)

After serving the sentence imposed by the court, a person convicted of aggravated assault or battery also must serve a period of parole. (Parole is very similar to probation, which is described below.) While on parole, the convicted person is out of prison but under the supervision of a parole board, and must obey all laws, become employed, and possibly check in regularly with a parole officer. Parolees who violate conditions of parole can be arrested and sent to prison to complete the remainder of the parole period. A parolee must pay the expenses of parole and reimburse any party that paid a reward for information leading to the offender’s arrest, prosecution, or conviction. (NMSA 1978, §31-21-10.)


The court can impose probation instead of jail or prison time for the entire sentence, or for a period after the defendant has served some time in jail or prison. For instance, a defendant might receive two years in prison and one year of probation for aggravated assault with a deadly weapon. A person on probation must meet regularly with a probation officer and obey the conditions set by the court, which might include no further arrests or convictions, counseling, community service, or electronic home detention (commonly referred to as “house arrest”). Electronic home detention involves wearing an electronic monitoring device or “ankle bracelet” and being restricted to home and work. Violating a condition of probation can result in arrest and an order to serve the remainder or a remaining part of the sentence in jail or prison. (NMSA 1978, §33-9-9.)

Conditional Discharge

Except for a dismissal or being found not guilty, a conditional discharge would be an excellent but unusual outcome for someone charged with aggravated assault or battery. Conditional discharge means that the judge does not enter a finding of guilt. Instead, the court imposes conditions on the defendant for a period of time, similar to conditions for probation. If the defendant satisfies all the conditions, the charges will be dismissed at the end of the period and the defendant will have no conviction on his record. (NMSA 1978, §31-20-13.)

A conditional discharge is unusual in felony cases, especially in those involving violence. The rare instances may include defendants with no prior criminal history, or and in cases presenting unusual circumstances, such as questionable police conduct or a defendant’s explanation that explains the conduct but does not rise to the level of a recognized defense.


Someone convicted of aggravated assault who is not required to serve the maximum prison term must pay restitution. For example, the person convicted must reimburse the victim for expenses resulting from the crime such as the cost of medical treatment or counseling. (NMSA 1978, 31-17-1.)

Consequences of a Conviction

A convicted felon loses the right to vote, hold public office, serve as a juror (for seven years), and carry or own firearms. In certain circumstances, a felony conviction also can result in loss of a professional license. Felons who face criminal charges later may find that the new charges are more serious because of their prior conviction(s).

Getting Professional Help

Because a conviction for a felony has such serious, permanent consequences and becomes part of your criminal record, having an experienced criminal defense attorney represent you is essential. An attorney can investigate the case and determine if you were wrongfully charged or there are other reasons why the case should be dismissed before a trial. If the charges are not dismissed, prosecutors often will negotiate and agree to a lighter sentence, such as probation or a conditional discharge, in exchange for a plea of guilty to the original charge. Or, they may reduce the charge to a different, less serious crime, to which the defendant can plead guilty. Whether you enter into a plea agreement or go to trial, an experienced attorney can protect your rights in court.

Talk to a Lawyer

Want to talk to an attorney? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys