Simple Assault and Battery in New Mexico

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

Assault is generally a petty misdemeanor, unless there are aggravating circumstances such as the use of a deadly weapon, or when a person commits assault with the intent to commit a violent felony. Assault with the intent to commit a violent felony is a third degree felony in New Mexico, exposing the defendant to substantial time in prison, probation, and fines.

(N.M. Stat. Ann. § § 30-3-1, 30-3-2, 30-3-3.)

In New Mexico, actual offensive physical contact, such as punching another person or hitting someone with an object, is a battery. A person who commits a petty misdemeanor assault or battery in New Mexico can be arrested, prosecuted, and sentenced to time in jail, probation, and ordered to pay a fine.

(N.M. Stat. Ann. § 30-3-4.)

For more information assault with intent to commit a violent crime, see Assault with the Intent to Commit a Violent Felony in New Mexico. For more information on assault with a deadly weapon and aggravated battery, see New Mexico Assault and Battery: Deadly Weapon & Other Aggravated Charges.

What is Assault?

In New Mexico, assault is:

  • intentional threats, words, or actions that cause a person to feel afraid of impending violence
  • attempting to attack or hit someone, or
  • the intentional use of words that insult another's character.

(N.M. Stat. Ann. § 30-3-1.)

For example, attempting to batter, strike, push or otherwise physical injure another is assault. Taking a swing at someone during a heated argument (but missing) is an attempted battery and, therefore, an assault under this statute. Threatening to beat someone up or to "break your arm," when said in a menacing or angry manner, also constitutes criminal assault when the other person could reasonably believe, based on the statement and menacing behavior, that he is about to be struck or otherwise injured.

What is Battery?

The New Mexico criminal statutes define battery as the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner. Striking another person with a fist during an argument or pushing someone are straightforward examples of battery. A more unusual example is touching another in a sexually suggestive manner through the person's clothing, without the person's consent.

(N.M. Stat. Ann. § 30-3-4.)

Intentional conduct required

Under New Mexico's assault and battery statutes, the threatening act or conduct and the physical contact must be intentional. If, for example, the action was accidental, it is not a crime. If a person who said "I'll break your arm" made the statement as a practical joke among friends and did not intend for the other person to feel afraid, the actor may not have had the necessary criminal intent to have violated the statute. Similarly, if someone brushes up against a friend in a sexually suggestive manner as a joke, that person also may not have criminal intent. An actor's claim that he did not know that an intentional, angry and/or menacing act was against the law, however, is usually not a defense and does not negate intent.

Specific Assaults

Certain simple assaults are considered more serious than a petty misdemeanor. Assault on a school employee, 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 also is a full misdemeanor. The penalties for these crimes are greater than the penalty for a petty misdemeanor.

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

Domestic Violence, Assault, and Battery

Assault and battery on a household member (such as a spouse, live-in boyfriend or girlfriend, or immediate family member) is a petty misdemeanor. Battery against a household member is a misdemeanor.

(N.M. Stat. Ann. § § 30-3-12, 30-3-15.)

For more information, see New Mexico Domestic Violence Laws.

Specific Batteries

Certain acts of battery also are considered more serious than a petty misdemeanor and carry greater penalties than simple battery. Battery on a sports official carrying out his duties is a misdemeanor, and battery on a school employee or health care worker while the employee or worker is carrying out his duties is a fourth degree felony.

(N.M. Stat. Ann. § § 30-3-9, 30-3-9.1, 30-3-9.2.)

Penalties for Assault in New Mexico

A person who is convicted of simple assault faces the following possible penalties:

  • up to six months in jail
  • a fine up to $500, or both, and
  • probation up to six months.

(N.M. Stat. Ann. § § 30-3-1, 31-19-1, 31-20-5.)

Penalties for Battery in New Mexico

Penalties for simple battery include:

  • up to six months in jail
  • a fine up to $500, or both, and
  • probation up to six months.

(N.M. Stat. Ann. § § 30-3-4, 31-19-1, 31-20-5.)

Penalties for misdemeanor battery include:

  • up to one year in jail
  • a fine up to $1,000, or both, and
  • probation up to one year.

(N.M. Stat. Ann. § § 31-19-1, 31-20-5.)


The court can impose probation instead of jail time for the entire sentence, or after the person convicted has spent some time in jail. For instance, a judge in an assault or battery case in New Mexico can order 30 days in jail and five months' probation.

A person on probation must meet regularly with a probation officer and comply with conditions set by the court, such as no further arrests or convictions, attending counseling, performing community service, or electronic home detention, commonly referred to as "house arrest." Under electronic home detention, the person on probation wears an electronic monitoring device or "ankle bracelet," and usually is restricted to home and work. Someone who violates a condition of probation can be arrested and required to serve the remainder or a remaining part of his sentence in jail.

(N.M. Stat. Ann. § 31-20-5.)

Conditional discharge

For a person facing a misdemeanor assault or battery charge in New Mexico, a conditional discharge is the best option short of dismissal or being found not guilty after trial. If the court gives a conditional discharge, the judge will impose conditions on the defendant, such as probation with counseling and no further arrests or convictions. If the defendant satisfies all the conditions, the charges are dismissed at the end of the conditional discharge period and the person has no conviction.

(N.M. Stat. Ann. § 31-20-13.)


If person convicted of assault or battery is sentenced to serve less than the maximum time in jail, the person must pay restitution, which means reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling.

(N.M. Stat. Ann. § 31-17-1.)

Pleas and Pre-Trial Options

If you are facing an assault or battery charge, 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 trial. (Perhaps you have a legally-valid and provable defense.) If the charges are not dismissed, prosecutors often will negotiate and agree to a let the defendant plead guilty to a different, less serious crime. Or, the prosecutor may agree to a lighter sentence, such as probation, or a conditional discharge in exchange for a plea of guilty to the assault or battery charge. An attorney can negotiate a plea bargain with the prosecutor on your behalf or prepare a defense and represent you at trial if you believe you have been wrongly accused.

The Value of Good Representation

A conviction for a misdemeanor becomes part of your permanent criminal record, which can have a serious impact on your life. If you are convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. A criminal record – even a misdemeanor conviction –can hurt you when you are looking for a job or applying to rent a house or apartment.

Only someone familiar with the local criminal court system and cases like yours will know how good your chances are for a favorable outcome in court or at the negotiating table. A knowledgeable attorney will take all of this into consideration, assist you in making decisions about your case, and protect your rights.

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