New Mexico law defines several criminal acts that constitute domestic abuse. Additionally, New Mexico law also provides a system where a domestic abuse victim can obtain an order of protection to prevent further acts of domestic abuse.
Domestic Abuse Crimes
Under New Mexico criminal law, certain violent offenses constitute domestic abuse crimes when committed against a household member. A household member is a current or former spouse, a parent, a current or former stepparent, a current or former parent-in-law, a grandparent, a grandparent-in-law, a co-parent of a child, or a person with whom the offender has had a dating or intimate relationship.
(N.M. Stat. §30-3-11)
The following crimes are domestic violence offenses, listed roughly in order of severity.
Assault against a household member. This is an attempt to commit a battery against a household member, or any unlawful act, threat, or menacing conduct that causes a household member to reasonably believe that a battery is imminent. Assault against a household member is a petty misdemeanor. Physical contact is not required.
Battery against a household member. A person who intentionally touches or applies force to a household member commits the crime of battery against a household member, a misdemeanor.
Aggravated battery against a household member. A person who intentionally touches or applies force to a household member with the intent to injure the victim is guilty of aggravated battery against a household member. If the injury inflicted is not likely to cause death or great bodily injury but causes painful temporary disfigurement or temporarily impairs the use of part of the victim’s body, the crime is a misdemeanor. If the offense causes great bodily harm, is committed with a deadly weapon, or is committed in a way where great bodily harm or death can result, the crime is a third-degree felony.
Aggravated assault against a household member. A person commits this crime of by assaulting or striking at a household member with a deadly weapon, or by intentionally assaulting a household member with the intent to commit a felony. This offense is a fourth-degree felony.
Assault against a household member with the intent to commit a violent felony. A person who assaults a household member with the intent to commit murder, mayhem, robbery, kidnapping, false imprisonment, burglary, or sexual penetration in the first, second, or third degree commits this crime, which is a third-degree felony.
(N.M. Stat. §§ 30-3-12, 30-3-13, 30-3-14)
Petty misdemeanors are punished by up to six months in jail, a fine of up to $500, or both.
Misdemeanors carry a possible sentence of up to one year in jail, a fine of up to $1,000, or both.
A third-degree felony is punished by three years in prison and a fine up to $5,000; a fourth-degree felony carries eighteen months in prison and a fine up to $5,000.
Required counseling. A defendant convicted of battery against a household member or misdemeanor aggravated battery against a household member must complete a domestic violence offender treatment program.
Repeat offenders. Any defendant convicted of a third battery against a household member or third misdemeanor aggravated battery against a household member is guilty of a fourth-degree felony, if the victim is a current or former spouse, a co-parent of a child, or in a continuing relationship with the defendant. Fourth or subsequent convictions for either offense are punished as third-degree felonies.
(N.M. Stat. §§ 31-18-15, 31-19-1, 30-3-15, 30-3-16)
Orders of Protection & Domestic Abuse
A victim of domestic abuse may seek a court-issued order of protection. For the purpose of orders of protection, New Mexico defines domestic abuse as an incident where one household member causes any of the following in another household member:
- physical harm or severe emotional distress
- bodily injury or assault
- a threat that causes immediate fear of receiving physical injury from any household member
- criminal trespass or criminal damage to property
- repeatedly driving by a residence or workplace
- telephone harassment or other forms of harassment, or
- harm or threatened harm to children.
Domestic abuse also includes incidents of stalking and sexual abuse, regardless of whether the stalking or sexual abuse is committed by a household member.
For orders of protection, “household member” also includes children, stepchildren, and grandchildren.
(N.M. Stat. § 40-13-2)
Ex Parte & Temporary Orders Of Protection
A court may issue an ex parte emergency order of protection, in a hearing where the alleged abuser is not present. A law enforcement officer tells a judge (or files a sworn statement) that an emergency order is needed, and the judge issues the order if there has been an instance of domestic abuse and the victim or victim’s child is in immediate danger of further abuse.
Notice to the restrained person. After the the court has issued an ex parte emergency order, a law enforcement officer gives the restrained person a copy. The order expires after 72 hours, but if asked the court may issue a "temporary order of protection," based on the same facts that supported the emergency order.
The terms of a restraining order. An ex parte emergency protection order can include provisions that:
- prohibit the restrained person from committing or threatening to commit further acts of domestic abuse against the protected person or any designated household members
- prohibit the restrained person from contacting the protected person, including prohibiting the restrained person from harassing, telephoning, or otherwise communicating with the protected person, and
- grant temporary custody of a minor child of the parties to the protected person.
Second hearing. If the judge has made an ex parte restraining order, he or she will hold a second hearing within ten days of the first, when both the protected person and restrained person can present evidence. If the court is convinced that further protection is warranted, it will issue an "order of protection."
If the court did not issue an ex parte order when originally asked, a hearing with both parties will be held within 72 hours of the denial.
The terms of an "order of protection." If the court finds that domestic abuse occurred, it will issue an order of protection. The order differs from a restraining order in that it can include more permanent and broader terms and conditions, such as:
- granting the protected person sole possession of a residence or requiring the restrained person to provide suitable housing for the protected person and any minor children whom the restrained person has a legal duty to support
- awarding temporary child custody and require child support and financial support for the protected person
- prohibiting the restrained person from initiating contact with the protected person
- prohibiting a person from transferring, concealing, encumbering, or otherwise disposing of the other person’s property or property that is jointly owned
- requiring the restrained person to reimburse the protected person or any other household member for expenses related to the domestic abuse, including medical expenses, counseling expenses, expenses related to seeking temporary shelter, and expenses for the repair or replacement of damaged property
- requiring the restrained person to participate in domestic abuse counseling, alcohol abuse counseling, or substance abuse counseling, and
- including any other relief the court thinks is necessary to protect the protected person.
(N.M. Stat. §§ 40-13-3.2, 40-13-4, 40-13-5)
Consult An Attorney
If you are charged with committing a New Mexico domestic abuse crime, or if you are accused of domestic abuse in a petition for an order of protection, you should speak with an attorney immediately. A conviction for a domestic abuse crime can carry serious consequences, including fines and jail time, and having an order of protection issued against you can limit your rights as a parent and property owner while imposing financial obligations. An attorney will evaluate the allegations made against you and provide invaluable guidance while protecting your rights.