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What Are Aggravating Factors?


What Are Aggravating FactorsExperienced criminal defense attorneys understand their clients deserve fierce advocacy at every stage of the proceedings. A guilty verdict or guilty plea does not absolve an attorney from continuing to fight. Strong advocacy at sentencing ensures that you receive the constitutional protections to which you are entitled. A skilled attorney could argue mitigating factors during sentencing to help overcome the common aggravating factors prosecutors use to justify giving you a longer and more harsh sentence. 

Having the right lawyer for your case is vitally important to your future. At the New Mexico Criminal Law Offices, our defense lawyers thoroughly prepare for every stage of your case, including sentencing. Our lawyers have the extensive experience you need to give you the best chance of minimizing your penalties—including minimizing incarceration time. Contact our office immediately so we can start defending your freedom.

Why Are Aggravating Factors Important?

Like all other states and the federal government, New Mexico’s criminal sentencing laws impose longer periods of incarceration as the severity of the crime increases. If you are charged with a serious crime, like rape or murder, you could end up in prison for a very long time even, if you’ve never been in trouble before. A judge could also look to see if there are any common aggravating factors present in your case that would justify exceeding the basic sentence for the type of crime you’re facing. Accordingly, you need to know what aggravating and mitigating factors exist in your case so you can fully understand your potential sentence. A thorough understanding of the consequences helps you and your lawyer decide on the best defense strategy for your case. 

Felony Sentencing in New Mexico

New Mexico law sets forth a basic sentence for every classification of a felony offense. The judge can deviate from the basic sentence for any number of reasons, but New Mexico’s sentencing authority statute’s basic calculations give the judge a starting point. A basic sentence for each felony classification ensures that people sentenced for similar crimes receive similar punishments—unless the judge has a reason to increase or decrease the basic sentence.  

New Mexico law allows a sentencing judge to alter a basic sentence. To do so, a judge must conduct a sentencing hearing to determine the presence of any aggravating or mitigating circumstances. That’s why aggravating and mitigating circumstances are vitally important.

In sentencing, mitigating circumstances could appear within the facts of the case or concern the offender in some way. Conversely, the judge can consider aggravating circumstances only if the judge finds beyond a reasonable doubt that aggravating factors exist. The prosecution must prove these aggravating factors as part of the case, or they can revolve around the person on trial. 


Suppose you are on trial for a felony. Procedurally, a jury must first decide whether you are guilty or not. Then the jury determines if aggravating circumstances exist. However, suppose you waive a jury trial and decide to have the judge decide if you are guilty or not. In that case, you still have the right to have a jury determine whether aggravating circumstances exist. However, if you wish, you can also waive a jury trial on the aggravating circumstances and ask the judge to decide on that issue as well.

Your lawyer must continue to fight aggressively for you at your sentencing hearing. New Mexico law allows a judge to add a significant amount of prison time to your sentence if aggravating factors are present. However, the law prohibits the judge from exceeding ⅓ of the basic sentence as determined by the class of felony charged.

Common Aggravating Factors

Under the sentencing statute, almost any factor could be aggravating or mitigating.

However, the law does not allow the use of a firearm, a prior felony conviction, a hate crime, or any evidence needed to prove an element of the case as an aggravating factor to alter a basic sentence. Notwithstanding, those factors could be used in other instances as sentencing enhancements. 

Some common aggravating and mitigating factors include the following:

  • The victim’s age,
  • The offender’s age,
  • The willingness of an offender to accept responsibility for the crime,
  • Any special circumstances in the defendant’s background,
  • Time the offender spent planning the commission of the offense,
  • Lack of remorse on behalf of the offender,
  • Potential of the offender to commit another crime, or
  • Whether the offender is dangerous to society.

The accused has a right to allocute at sentencing. That means you have a right to speak on your own behalf at sentencing. You can explain what happened, why it happened, and provide other information that a judge might consider in your favor at sentencing. However, the lack of cooperation is not aggravating because you always have the right to remain silent.

The judge weighs the aggravating and mitigating factors in determining the appropriate sentence. 

Aggravating Factors Are Different from Sentencing Enhancements

New Mexico’s criminal law contains several sentencing enhancement laws. Sentencing enhancements are different from aggravating factors. Brandishing or discharging a firearm during a drug transaction, aggravated burglary, or another serious offense requires the judge to add one year to the basic sentence. Still, depending on the facts of the case, the judge could add up to five years to your sentence. It is not discretionary unless the accused is a youthful offender. 

The habitual offender law is another sentencing enhancement statute prosecutors use frequently. One prior felony conviction adds one year to your sentence. Two previous felony convictions add four years and three priors add eight years to your sentence. The time added to your sentence because you are a habitual offender is mandatory—so you cannot receive parole, nor can the judge defer that part of your sentence. 

New Mexico also has a three-strikes law. You could receive a life sentence if you have three prior felony convictions for violent crimes. Violent sex offense convictions and hate crimes also enhance your basic sentence.

Get More Information About New Mexico Sentencing and Aggravating Factors

Criminal sentencing in New Mexico is complicated. A skilled and knowledgeable defense lawyer arguing your case can help protect your future and minimize the sentence you receive. Contact us today for a free consultation. We are here to help you throughout the criminal process, including sentencing. Sentencing focuses on the individual. We take an individualized approach to ensure the best possible outcome for our clients.