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Assault & Battery in New Mexico: What You Need to Know


Image about assault and associated terms.While the terms assault and battery are often used together or interchangeably, legally speaking, the two crimes are distinct. In fact, there are several types of New Mexico assault and battery offenses, varying in seriousness.

Under common law, an assault is an intentional act that created apprehension in another of an imminent harmful or offensive contact. Put more simply, an assault is any action that puts another in fear of some type of physical harm. Battery, on the other hand, involves a person creating unlawful, physical contact with another person.

Thus, under the common law, not all assaults result in a battery and vice-versa. For example, if Jessie runs towards Alex with her fist raised, but stops short, she may have committed an assault, but she did not commit a battery. In this example, the physical contact element of a battery is missing. Conversely, if Joe walks up behind Scott and punches him in the back of the head, Joe may have committed a battery against Scott. However, he will not have committed an assault unless Scott saw him coming. In this scenario, the “apprehension of physical contact” element is missing.

New Mexico lawmakers largely follow the common law definitions of assault and battery when defining the state’s criminal offenses.

New Mexico Assault Offenses

Under New Mexico law, there are several types of assault offenses.


A person can commit an assault in one of three ways:

  1. By attempting to commit a battery;
  2. By engaging in some type of unlawful act, causing another to reasonably believe they will experience any kind of harmful or offensive physical contact; or
  3. By using insulting language toward another, impugning their “honor, delicacy, or reputation.”

A person who commits an assault is guilty of a petty misdemeanor, which is punishable by up to six months in jail and a fine of up to $500.

Aggravated assault

An aggravated assault is a more serious assault offense. A New Mexico aggravated assault contains all the same essential elements of an assault, but requires proof of at least one additional element, including:

  • Using a deadly weapon while committing an assault;
  • Wearing a mask or some other type of face-covering while committing an assault; or
  • Willfully committing an assault with the intent to commit a felony.

An aggravated assault is considered a fourth-degree felony offense, which is punishable by up to eighteen months in jail and a fine up to $5,000.

Assault with intent to commit a violent felony

Similar to an aggravated assault, the crime of assault with intent to commit a violent felony occurs when someone commits an assault while in the commission of certain enumerated felony offenses, including:

  • Murder,
  • Mayhem,
  • Criminal sexual penetration,
  • Robbery, and
  • Burglary.

An assault with intent to commit a violent felony is a third-degree felony, punishable by up to three years in prison and a fine up to $5,000.

Battery Crimes in New Mexico

Like assault offenses, there are several types of New Mexico battery offenses.


In New Mexico, a battery is legally defined as unlawful and intentional contact made in a “rude, insolent, or angry manner.” If convicted of a battery offense, a defendant will be guilty of a petty misdemeanor, punishable by up to six months in jail and a fine of up to $500.

Aggravated battery

An aggravated battery is similar to a battery, although an aggravated battery requires proof that it was inflicted with the intent to injure the victim. An aggravated battery can either be a misdemeanor or felony offense. If the contact was not likely to cause death or great bodily harm, a battery will be graded as a misdemeanor, punishable by up to one year in jail and a fine of up to $1,000. However, if an aggravated battery results in serious bodily injury or was committed with a deadly weapon, the offense will be graded as a third-degree felony, punishable by up to three years in jail and a fine of up to $5,000.

Other Assault and Battery Offenses

In addition to the offenses mentioned above, New Mexico lawmakers have passed specific laws based on the status of the alleged victim. These offenses include:

  • Injury to a pregnant woman
  • Assault or battery of school personnel
  • Assault or battery of a healthcare professional
  • Assault or battery against a household member (domestic violence)
  • Aggravated assault or battery against a household member (aggravated domestic violence)

Defenses in Assault and Battery Crimes

Before someone can be convicted of an assault or battery charge, the prosecution must prove each element of the offense beyond a reasonable doubt. Thus, these cases are often beaten – or the charges are mitigated – by casting doubt upon a witness’s credibility or by showing that the prosecution’s case is legally insufficient to sustain a conviction.

New Mexico law also provides for several affirmative defenses. An affirmative defense is a type of defense in which the defendant presents evidence that, if believed, would mitigate or eliminate criminal liability. To argue an affirmative defense, a defendant will admit that they committed the act in question, but claims that they did so for a non-criminal reason. For example, the following are examples of affirmative defenses that may apply to an assault or battery charge:

  • Self-defense
  • Defense of others
  • Defense of property
  • Consent

Each of these affirmative defenses has its own set of elements. A defendant must present evidence, often through their own testimony, to establish each of the elements. Once proof of an affirmative defense is presented, it can then be considered by the judge or jury. Those facing aggravated assault or aggravated battery charges should not lose hope; many defenses can reduce or eliminate criminal liability.

Discuss Your Case with a Trusted Defense Attorney

If you are facing a New Mexico domestic violence case, or any other assault or battery charge, contact the dedicated criminal attorneys at the New Mexico Criminal Law Offices. Police, prosecutors, and judges all take violent crimes very seriously, and so should you. Depending on the type of assault or battery charge you are facing, a guilty verdict could result in a significant jail sentence. However, there are many defenses to assault and battery crimes that can be used to lessen your exposure or beat the case outright. To learn more, and to schedule a free consultation with an experienced criminal attorney, you can reach us by phone or through our online form.