N.M. Stat. » Chapter 30 — Criminal Offenses
New Mexico Statutes

N.M. Stat. § 30-1-9 (2026)

Tolling of time limitation for prosecution for crimes

✓ laws through the 2025 session (retrieved May 2026)
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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.

Notes of Decisions
Cited in 12 cases (6 in the last 5 years), 1995–2025 · leading case: State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023).
Sort: Relevance Newest Treatment
State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023). · cites it 125× “See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue…”
State v. Hill, 2008-NMCA-117, 192 P.3d 770. · cites it 10× “We conclude that Section 30-1-9 is a tolling statute, rather than a statute of limitations, and that it does not independently limit the time period within which prosecution must commence.”
Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004). · cites it 2× “§ 2C:1-6(e) (West 2003); N.M. Stat. Ann. § 30-1-9 (B)(4) (Michie 2002) (statute of limitations is tolled by an indictment for the "same transaction"); N.”
State v. Padilla (N.M. Ct. App. 2023). · cites it 125× “See NMSA 1978, § 30-1-9 11 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the 12 period between the timely filed—but dismissed—complaint and the refiled charges; 13 and (2) no nonstatutory tolling otherwise extended the time for the State to…”
State v. Padilla, 580 P.3d 243 (N.M. 2025). · cites it 90× “We hold that the tolling 3 provision at issue, NMSA 1978, Section 30-1-9 (1963) applies to second-degree 4 felonies but that the proviso in Section 30-1-9(B)(4) denies the State the benefits of 5 tolling under Subsection (B).”
Ex Parte Matthews, 892 S.W.2d 208 (Tex. App. 1995). · cites it 2× “1964), repealed by NMSA 1978 § 30-1-9(A) (Repl.Pamp.1984) (emphasis added).”
State v. Sandoval, 561 P.3d 1102 (N.M. Ct. App. 2024). · cites it 33× “Rather, the State exclusively relies on a theory of nonstatutory tolling to contend that the five-year limitation period in Section 30-1-8(B) was paused during the pendency of the first indictment in this case.”
State v. Sandoval, 561 P.3d 1102 (N.M. Ct. App. 2024). · cites it 25× “9 Rather, the State exclusively relies on a theory of nonstatutory tolling to contend that 10 the five-year limitation period in Section 30-1-8(B) was paused during the pendency 11 of the first indictment in this case.”
State v. Bahr, 557 P.3d 1012 (N.M. Ct. App. 2024). · cites it 16× “1 (1987) (tolling the statute of limitations for certain crimes against children until the victim turns eighteen or the violation is reported to law enforcement), or NMSA 1978, Section 30-1- 9(A) (1963) (stating that time when the defendant is not usually and publically a…”
State v. Stammer (N.M. Ct. App. 2019). · cites it 2× “The State argued that the statute of limitations had not run as (1) it did not begin to run until the victim turned eighteen years of age in November 1999; and (2) the time was tolled, pursuant to NMSA 1978, Section 30-1-9 (1963), when Defendant fled New Mexico in 2000 and did…”
Hernandez, Alexander, No. PD-0826-02 (Tex. Crim. App. Feb. 4, 2004). “§ 2C:1-6(e) (West 2003); N.M. Stat. Ann. § 30-1-9 (B)(4) (Michie 2002) (statute of limitations is tolled by an indictment for the "same transaction"); N.”
Cawley v. Dorsey, No. 96-2016 (10th Cir. Feb. 11, 1997). “§ 40A-1-9(A) (now N.M. Stat. Ann. § 30-1-9 (A)). Further, count I of the information sufficiently informed petitioner of the offense charged.”
N.M. Stat. § 30-1-9(A): 5 cases
Ex Parte Matthews, 892 S.W.2d 208 (Tex. App. 1995). “1964), repealed by NMSA 1978 § 30-1-9(A) (Repl.Pamp.1984) (emphasis added).”
State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue…”
State v. Padilla, 580 P.3d 243 (N.M. 2025). “We hold that the tolling 3 provision at issue, NMSA 1978, Section 30-1-9 (1963) applies to second-degree 4 felonies but that the proviso in Section 30-1-9(B)(4) denies the State the benefits of 5 tolling under Subsection (B).”
State v. Bahr, 557 P.3d 1012 (N.M. Ct. App. 2024). “1 (1987) (tolling the statute of limitations for certain crimes against children until the victim turns eighteen or the violation is reported to law enforcement), or NMSA 1978, Section 30-1- 9(A) (1963) (stating that time when the defendant is not usually and publically a…”
State v. Padilla (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 11 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the 12 period between the timely filed—but dismissed—complaint and the refiled charges; 13 and (2) no nonstatutory tolling otherwise extended the time for the State to…”
N.M. Stat. § 30-1-9(B): 6 cases
State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue…”
State v. Hill, 2008-NMCA-117, 192 P.3d 770. “We conclude that Section 30-1-9 is a tolling statute, rather than a statute of limitations, and that it does not independently limit the time period within which prosecution must commence.”
State v. Padilla (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 11 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the 12 period between the timely filed—but dismissed—complaint and the refiled charges; 13 and (2) no nonstatutory tolling otherwise extended the time for the State to…”
State v. Padilla, 580 P.3d 243 (N.M. 2025). “We hold that the tolling 3 provision at issue, NMSA 1978, Section 30-1-9 (1963) applies to second-degree 4 felonies but that the proviso in Section 30-1-9(B)(4) denies the State the benefits of 5 tolling under Subsection (B).”
State v. Sandoval, 561 P.3d 1102 (N.M. Ct. App. 2024). “Rather, the State exclusively relies on a theory of nonstatutory tolling to contend that the five-year limitation period in Section 30-1-8(B) was paused during the pendency of the first indictment in this case.”
N.M. Stat. § 30-1-9(B)(1): 2 cases
State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue…”
State v. Padilla (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 11 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the 12 period between the timely filed—but dismissed—complaint and the refiled charges; 13 and (2) no nonstatutory tolling otherwise extended the time for the State to…”
N.M. Stat. § 30-1-9(B)(3): 4 cases
State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue…”
State v. Padilla (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 11 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the 12 period between the timely filed—but dismissed—complaint and the refiled charges; 13 and (2) no nonstatutory tolling otherwise extended the time for the State to…”
State v. Padilla, 580 P.3d 243 (N.M. 2025). “We hold that the tolling 3 provision at issue, NMSA 1978, Section 30-1-9 (1963) applies to second-degree 4 felonies but that the proviso in Section 30-1-9(B)(4) denies the State the benefits of 5 tolling under Subsection (B).”
State v. Sandoval, 561 P.3d 1102 (N.M. Ct. App. 2024). “Rather, the State exclusively relies on a theory of nonstatutory tolling to contend that the five-year limitation period in Section 30-1-8(B) was paused during the pendency of the first indictment in this case.”
N.M. Stat. § 30-1-9(B)(4): 6 cases
State v. Padilla, 534 P.3d 223 (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the period between the timely filed—but dismissed—complaint and the refiled charges; and (2) no nonstatutory tolling otherwise extended the time for the State to pursue…”
State v. Hill, 2008-NMCA-117, 192 P.3d 770. “We conclude that Section 30-1-9 is a tolling statute, rather than a statute of limitations, and that it does not independently limit the time period within which prosecution must commence.”
State v. Padilla, 580 P.3d 243 (N.M. 2025). “We hold that the tolling 3 provision at issue, NMSA 1978, Section 30-1-9 (1963) applies to second-degree 4 felonies but that the proviso in Section 30-1-9(B)(4) denies the State the benefits of 5 tolling under Subsection (B).”
State v. Padilla (N.M. Ct. App. 2023). “See NMSA 1978, § 30-1-9 11 (1963). We conclude that (1) in the present case, Section 30-1-9 did not exclude the 12 period between the timely filed—but dismissed—complaint and the refiled charges; 13 and (2) no nonstatutory tolling otherwise extended the time for the State to…”
State v. Sandoval, 561 P.3d 1102 (N.M. Ct. App. 2024). “Rather, the State exclusively relies on a theory of nonstatutory tolling to contend that the five-year limitation period in Section 30-1-8(B) was paused during the pendency of the first indictment in this case.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.