N.M. Stat. § 30-1-9 (2026)

     A. If after any crime has been committed the defendant shall conceal himself, or
shall flee from or go out of the state, the prosecution for such crime may be commenced
within the time prescribed in Section 1-8 [30-1-8 NMSA 1978], after the defendant
ceases to conceal himself or returns to the state. No period shall be included in the time
of limitation when the party charged with any crime is not usually and publicly a resident
within the state.

   B. When

       (1)    an indictment, information or complaint is lost, mislaid or destroyed;

       (2)    the judgment is arrested;

      (3)     the indictment, information or complaint is quashed, for any defect or
reason; or

        (4)    the prosecution is dismissed because of variance between the allegations
of the indictment, information or complaint and the evidence; and a new indictment,
information or complaint is thereafter presented, the time elapsing between the
preferring of the first indictment, information or complaint and the subsequent
indictment, information or complaint shall not be included in computing the period
limited for the prosecution of the crime last charged; provided that the crime last
charged is based upon and grows out of the same transaction upon which the original
indictment, information or complaint was founded, and the subsequent indictment,
information or complaint is brought within five years from the date of the alleged
commission of the original crime.

History: 1953 Comp., § 40A-1-9, enacted by Laws 1963, ch. 303, § 1-9.

                                     ANNOTATIONS

Cross references. — For defects, errors and omissions in a complaint, indictment or
information, and variances between the allegations therein and the evidence, see Rule
5-204 NMRA.

This section is a tolling statute, not a statute of limitations, and does not
independently limit the period within which prosecution must commence. State v. Hill,
2008-NMCA-117, 144 N.M. 775, 192 P.3d 770, cert. quashed, 2009-NMCERT-009, 147
N.M. 423, 224 P.3d 650.

Constitutionality. — The application of the tolling provision did not violate either
defendant's right to travel or his constitutional guarantee of equal protection of the laws.
State v. Cawley, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574.

Statute not exclusive. — Although this section does show a legislative intent that the
limitation period is not to be utilized to bar a prosecution delayed by procedural
problems, it does not evince an intent to bar prosecutions not beset with procedural
problems. State v. Martinez, 1978-NMCA-095, 92 N.M. 291, 587 P.2d 438, cert.
quashed, 92 N.M. 260, 586 P.2d 1089.

Indictment timely because complaint had tolled statute. — An indictment filed prior
to dismissal of a complaint but more than three years after the commission of a third
degree felony is timely because the limitation period was tolled by the filing of the
complaint within the three-year period. State v. Martinez, 1978-NMCA-095, 92 N.M.
291, 587 P.2d 438, cert. quashed, 92 N.M. 260, 586 P.2d 1089.

A timely filed criminal information dismissed without prejudice does not toll the
statute of limitations such that the State may refile the charges after the
limitations period has passed. — Where the state charged defendant by criminal
information with two second-degree felonies in the first judicial district court, and where
the district court dismissed the case without prejudice for improper venue, and where,
six months after the running of the six-year statute of limitations period, defendant was
indicted by a grand jury in Sandoval county, and where defendant moved to dismiss the
charges as time barred, the district court erred in denying defendant's motion to dismiss,
allowing common law tolling principles to apply, because 30-1-9(B) NMSA 1978
establishes a general principle or rule to allow tolling under that statute but disallows the
benefit of tolling for those actions that do not meets its terms, including second-degree
felonies that carry a statute of limitations that exceed § 30-1-9(B)(4)'s five-year cap.
State v. Padilla, 2025-NMSC-048, aff'g 2023-NMCA-047, 534 P.3d 223.

Period between dismissed complaint and refiled charges was not tolled. — Where
defendant was charged in Santa Fe county with embezzlement and computer access
with intent to defraud or embezzle on June 28, 2018, and where defendant filed an
objection to the venue on November 29, 2018, and where the district court granted
defendant's motion to dismiss both counts with prejudice for improper venue, and
where, almost two months later, on August 1, 2019, a grand jury indicted defendant on
the same charges in Sandoval county for conduct that occurred between December 19,
2011 and January 22, 2013, and where defendant moved to dismiss both charges,
claiming that the statute of limitations had expired, the district court erred in denying
defendant's motion to dismiss, because this section did not exclude the period between
the timely filed but dismissed complaint and the refiled charges or toll any time from the
six-year statutory limitation period, and no nonstatutory tolling otherwise extended the
time for the state to pursue charges in the present case. State v. Padilla, 2023-NMCA-
047, cert. granted.

Nonstatutory tolling of statute of limitations disallowed. — The legislature has
established the circumstances in which criminal statutes in New Mexico may be tolled
and has thereby disallowed application of separate, nonstatutory tolling. State v.
Sandoval, 2025-NMCA-002, cert. denied.

The pendency of the initial indictment did not toll the statute of limitations. —
Where defendant was convicted of numerous sexual offenses against a minor, including
criminal sexual contact of a minor in the third degree for touching the victim's unclothed
genitals and breasts with the help or encouragement of another, or, alternatively,
criminal sexual contact of a minor, but without the aid of another, criminal sexual contact
of a minor in the third degree for touching the victim's clothed buttocks with the help or
encouragement of another, or, alternatively, criminal sexual contact of a minor for
touching the victim's clothed buttocks, but without the aid of another, child abuse in the
third degree, for striking the victim in the face, and giving alcohol to a minor, a fourth
degree felony, but where, following the voluntary dismissal of the initial indictment, an
amended indictment was filed beyond the five-year statute of limitations, and where the
state relied on a theory of nonstatutory tolling to contend that the five-year limitation
period was paused during the pendency of the first indictment in this case, defendant's
third and fourth degree felony convictions were vacated, because neither existing
precedent nor statutory law permits tolling of the statute of limitations when the state
voluntarily dismisses its own charges to obtain more evidence in support of its case.
State v. Sandoval, 2025-NMCA-002, cert. denied.

Evidence of absence from state insufficient. — Where there was no evidence
tending to show defendant's whereabouts from the time of his escape from prison on
September 17, 1956 until his apprehension in Oklahoma on January 24, 1960,
defendant's plea of not guilty put the statute of limitations in issue, and his motion for a
directed verdict on the grounds that the three-year statute of limitations was a bar to
prosecution should have been granted. State v. Oliver, 1963-NMSC-015, 71 N.M. 317,
378 P.2d 135.

Prosecution for attempted CSPM was timely because defendant's absence from
the state tolled the statute of limitations. — Where defendant was convicted of one
count of criminal sexual penetration of a minor (CSPM) and two counts of attempted
CSPM, and where defendant claimed that one of his convictions for attempted CSPM
was barred by the statute of limitations because the charging period included time that
fell outside the six-year limitations period, the statute of limitations did not bar the state
from prosecuting defendant, because the state presented evidence that defendant left
New Mexico and moved to Arizona and was still living in Arizona when he was originally
charged. Consequently, the statute of limitations for prosecuting defendant for
attempted CSPM was tolled when defendant left New Mexico and while he was residing
in Arizona. State v. Bahr, 2024-NMCA-075, cert. denied.

Evidence negating residence insufficient. — There being no substantial evidence in
record that defendant was not usually and publicly a resident of state, after commission
of crime for sufficient time to toll statute of limitations, he was entitled to instructed
verdict in his favor. State v. Mersfelder, 1927-NMSC-049, 34 N.M. 465, 284 P. 113.

"Concealing oneself" construed. — The plain language of 30-1-9(A) NMSA 1978
suggests that a court will look to the actions of an offender after the crime was
committed, and will necessarily undertake a fact-specific analysis of whether the
offender's actions constituted an affirmative attempt to conceal his or her identity, and
therefore, absent any evidence that the offender took affirmative steps to hide his or her
identity, it is unlikely that the offender could be considered to have "concealed" himself
or herself. Where a victim has submitted to a sexual assault evidence kit, the victim
does not know the offender, and the offender has not been identified and the sexual
assault evidence kit DNA has not been matched to an individual suspect, and therefore
it is unlikely that a court would consider the offender to be concealing himself, because
under these circumstances, there is no evidence that the offender took affirmative steps
to hide his or her identity. Retroactive Application of Criminal Statute (4/27/17), Att'y
Gen. Adv. Ltr. 2017-04.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 227,
228, 231, 233.

Inclusion or exclusion of first and last day for purposes of statute of limitations, 20
A.L.R.2d 1249.

Imprisonment as tolling the statute of limitations, 76 A.L.R.3d 743.

Finding or return of indictment, or filing of information, as tolling limitation period, 18
A.L.R.4th 1202.

Issuance or service of state-court arrest warrant, summons, citation, or other process as
tolling criminal statute of limitations, 71 A.L.R.4th 554.

22 C.J.S. Criminal Law §§ 202 to 204.