Assault and Aggravated Assault Crimes in New Mexico

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. Actual offensive physical contact, such as punching another person or hitting someone with an object, is a battery.

Assault crimes start as misdemeanors in New Mexico, but assault becomes a felony crime—aggravated assault—when it involves a deadly weapon, concealment, or intent to commit a felony.

What Is an Assault Crime in New Mexico?

In New Mexico, assault is:

• intentional threats, words, or actions that cause a person to feel afraid of impending violence
• an attempted battery (basically an attempt to make offensive contact with someone), or
• the intentional use of words that insult another's character.

Attempting to batter, strike, push, or otherwise physically injure another is assault. For example, a person who takes a swing at someone during a heated argument but misses commits assault. Threatening to beat someone up or to "break your arm," when said in a menacing or angry and believable manner, can be criminal assault if the victim fears for their safety. (N.M. Stat. Ann. § 30-3-1 (2023).)

What Are the Penalties for Assault in New Mexico?

The penalties for simple assault start as a petty misdemeanor. When an assault involves a protected victim, the penalties increase to a misdemeanor.

Simple Assault: Petty Misdemeanor

A person who is convicted of assault—without any other aggravating factors involved—faces a petty misdemeanor. Petty misdemeanors are punishable by up to six months in jail and a $500 fine.

Assault of Protected Victims: Misdemeanor

Assault increases to a misdemeanor offense if the victim targeted is a school employee, sports official, or health care worker who's performing their duties. A conviction for a misdemeanor carries up to 364 days in jail and a $1,000 fine.

(N.M. Stat. §§ 30-3-1, 30-3-9, 30-3-9.1, 30-3-9.2, 31-19-1 (2023).)

What Is Aggravated Assault in New Mexico?

New Mexico defines aggravated assault as:

• threatening or attempting to strike or otherwise injure someone with a deadly weapon (such as a gun, knife, brass knuckles, or metal bar)
• threatening or attempting to strike or injure another while concealing one's identity (such as by wearing a mask or wig), and
• willfully and intentionally threatening or attempting to strike or apply physical force to another with the intent of committing a felony (such as threatening to pummel someone if they scream and then running away with a cash box—intent to commit felony larceny).

It doesn't matter whether the defendant actually intends to harm the victim. It's aggravated assault when any of these wrongful actions take place.

(N.M. Stat. § 30-3-2 (2023).)

What Are the Penalties for Aggravated Assault in New Mexico?

Aggravated assault crimes carry third- and fourth-degree felony penalties.

Aggravated Assault and Aggravated Assault With a Deadly Weapon

Aggravated assault—with a deadly weapon, by concealment, or with intent to commit a felony—are all fourth-degree felonies. A person convicted of aggravated assault in New Mexico faces a basic sentence of 18 months in prison and a $5,000.

Aggravated Assault on a Protected Victim

Penalties for certain aggravated assault crimes increase to a third-degree felony when committed against a protected victim, including a school employee, sports official, or health care worker who's performing their duties. New Mexico punishes a third-degree felony with a basic sentence of three years in prison and a $5,000 fine.

(N.M. Stat. §§ 30-3-2, 30-3-9, 30-3-9.1, 30-3-9.2, 31-18-15 (2023).)

What Is Assault With Intent to Commit a Violent Felony in New Mexico?

In New Mexico, assault increases to a second- or third-degree felony if the person assaults another with the intent to kill the victim or to commit murder, mayhem, robbery, burglary, or sexual assault (violent felonies).

Examples of Assault With Intent to Commit a Violent Felony

For example, shooting at someone with the intent to kill but missing falls under this crime. Threatening bodily harm and demanding a victim perform oral sex is another example of assault with intent to commit a violent felony. Holding a crowbar over a convenience store clerk and demanding money (intent to rob) would also be a crime under this section.

Penalties for Assault With Intent to Commit a Violent Felony

A person convicted of assault with intent to commit a violent felony faces third-degree felony penalties of up to three years in prison and a $5,000 fine. The penalty increases to a second-degree felony if the defendant assaulted a school employee or health care worker with intent to kill. Second-degree felonies are punishable by a nine-year prison sentence and a $10,000 fine.

(N.M. Stat. §§ 30-3-3, 30-3-9, 30-3-9.2, 31-18-15 (2023).)

Sentencing and Parole for Assault Convictions in New Mexico

New Mexico law provides certain sentencing enhancements and parole requirements for assault crimes involving aggravating factors.

Increasing the Basic Sentence

New Mexico judges can increase a defendant's basic sentence (those listed above) by up to one-third if aggravating factors were involved, such as the defendant committing the crime in a cruel manner, lacking remorse, or having an accomplice. (N.M. Stat. § 31-18-15.1 (2023).)

Assault Hate Crimes

A defendant who commits assault motivated by hate can face enhanced penalties. The judge can add a year to a defendant's sentence for a felony hate crime and two years for a second felony hate crime. If the hate crime was a misdemeanor or petty misdemeanor, the judge may require the defendant to complete community service hours, receive treatment, or attend educational classes. (N.M. Stat. § 31-18B-3 (2023).)

Habitual or Repeat Felony Offenders

New Mexico law increases the basic sentence for repeat felony offenders by the following amounts:

• one year for one prior felony conviction
• four years for two prior felony convictions, and
• eight years for three or more prior felony convictions.

The judge cannot suspend or defer the enhanced sentence. (N.M. Stat. § 31-18-17 (2023).)

Mandatory Parole Periods

Inmates serving time for a second- or third-degree felony must complete a two-year parole period. The parole period is one year for inmates serving time for a fourth-degree felony.

(N.M. Stat. Ann. § 31-21-10 (2023).)

Getting Legal Help

If you're facing assault charges, even misdemeanor assault, it's a good idea to speak with a criminal defense attorney. Assault charges can mean jail or prison time, plus fines and fees. They also look bad on one's criminal record.