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  • The Elements of Assault – When Could You Be Convicted?

    Posted on by JACK MKHITARIAN

    Reputable Attorneys Representing Criminal Defense Clients in New Mexico

    AssaultAssault is considered an intentional act by one person that causes harm to another person. In New Mexico, you must attempt to commit a physical attack or make a victim believe that they will be attacked to be convicted of assault.

    Assault is a broad term, and you do not have to have a physical altercation with someone to be charged. If you were to strike someone physically, then you may face assault and battery charges.

    For example, if you attempted to hit someone or threatened to strike them, you could be arrested and charged with assault. If you punched a person, then you could be arrested and charged with battery.

    Assault in Albuquerque Is a Petty Misdemeanor

    Attempting to hit someone or threatening them with violence is minor compared to carrying out the violence. Therefore, in most cases, you would face a petty misdemeanor – unless you threatened or attempted to strike someone with a deadly weapon or while committing another violent crime. If you assaulted someone while intending to commit a violent felony, then you are no longer facing a petty misdemeanor. Instead, you are facing a third-degree felony, which includes potential prison time.

    How the Law Defines “Assault”

    Under New Mexico Statute Section 30-3-1, assault is:

    • Threats or Invoking Fear: Any intentional threat using words or actions, or another act that causes a victim to fear violence is considered assault.
    • Attempts to Act: While you might not physically strike the person or even threaten with words if you attempt to attack someone and miss, you could still face an assault charge.
    • Insult of Character: While rarer, intentionally using words to threaten or insult a person’s character could be considered assault.

    For example, let’s say that you are in a heated argument with another person. During that discussion, you take a swing at them, but you miss. You have attempted battery, and therefore you are guilty of assault.

    In that same argument, threatening the other person angrily or menacingly could be considered criminal assault, especially if the other person reasonably believes that your statements are true and that you might have struck them.

    How the Law Defines “Battery”

    Now that you know what assault is, it is equally important that you understand how the law categorizes battery. While we have briefly discussed it, the act itself is much more complicated. Battery is an unlawful or intentional application of force to a person in a rude, angry, or insolent way.

    If you were to strike someone with a closed fist during a fight, you are committing battery according to New Mexico Statute Section 30-3-4.

    Intentional Conduct is Required for Battery Charges

    Under the battery statute, your threats and conduct must be intentional to be charged with battery. Accidentally striking someone from swinging your arms is not intentional, because you did not swing your arms with the purpose of hitting someone.

    Joking is also not battery or assault. If you tell someone that you will break their arm, but are joking among friends, and you had no intentions of making the other person feel afraid, then you are not violating the statute.

    What Is the Penalty for Assault?

    If you are convicted of simple assault, which means without battery, you could face up to six months in jail, a fine of up to $500 or both penalties according to New Mexico Statute Section 30-3-1, 31-19-1, and 31-20-5.

    Are There Defenses to Assault?

    A good defense for assault or battery depends on the circumstances of the case and the caliber of defense attorney you hire. These cases can be complicated or simple. So it’s important that your attorney assesses the evidence and facts of your case carefully before deciding on a good defense strategy.

    Operating under the usual elements of an assault case, there are some defenses that your attorney might use:


    Self-defense is by far the most popular defense strategy in an assault or battery case. However, you cannot merely claim self-defense in your assault case and assume you will be released. Instead, you must prove that:

    • There was a threat of force or harm against yourself – thus, justifying your threat of violence or violent act in return.
    • You had an honest, genuine perceived fear of injury from the other party.
    • You did not harm the other person or provoke the fight yourself.
    • You had no reasonable opportunity to escape.

    When all the elements mentioned above are present, you may have a self-defense argument against your charges.

    Realize that just because you acted in self-defense does not mean that you will automatically be released. Even if you legitimately acted in self-defense, the amount of violence or force you use in defense comes into question. If you could have avoided the situation, gotten away, or used less violence than you did, the prosecutor will likely argue that your actions were not self-defense.

    The Defense of Another Person

    While like self-defense, this argument is that you were protecting someone else who had a reasonable perceived fear of harm.  However, you must prove that the other party felt real fear of harm, thereby justifying your use of violence to extract the other person from the potentially harmful situation.

    The limitations of this defense work similarly to self-defense,

    A Defense of Personal Property

    You may claim the defense of personal property if you were being robbed or burglarized, or if property was being illegally withheld from your possession. This defense is not always viable, and most courts will strike it down as a defense unless it involved your home. If defending your home from an invader, defending yourself against a pickpocket or purse snatcher, or another direct theft, you may be able to defend against assault or battery charges.

    Arrested for Assault? You Need a Criminal Defense Attorney

    Assault is a complicated area of criminal law, and is not one that you should dismiss. While you might not have struck anyone, you could still spend six months of your life in jail for merely threatening a person with a violent act.

    Furthermore, you will have a criminal record.

    To avoid the penalties of assault, you need an aggressive criminal defense attorney by your side. Contact an attorney from New Mexico Criminal Law Offices today at 505-375-4767 or request more information online.