N.M. Stat. § 30-22-1 (2026)

Resisting, evading or obstructing an officer consists of:

    A. knowingly obstructing, resisting or opposing any officer of this state or any other
duly authorized person serving or attempting to serve or execute any process or any
rule or order of any of the courts of this state or any other judicial writ or process;

   B. intentionally fleeing, attempting to evade or evading an officer of this state when
the person committing the act of fleeing, attempting to evade or evasion has knowledge
that the officer is attempting to apprehend or arrest him;

    C. willfully refusing to bring a vehicle to a stop when given a visual or audible signal
to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by
a uniformed officer in an appropriately marked police vehicle; or

    D. resisting or abusing any judge, magistrate or peace officer in the lawful discharge
of his duties.
   Whoever commits resisting, evading or obstructing an officer is guilty of a
misdemeanor.

History: 1953 Comp., § 40A-22-1, enacted by Laws 1963, ch. 303, § 22-1; 1981, ch.
248, § 1.

                                    ANNOTATIONS

Cross references. — For authority of conservation officers to enforce these provisions
under emergency circumstances, see 17-2-19 NMSA 1978.

Lesser included offense. — Resisting or abusing a peace officer is a lesser included
offense within battery on a peace officer under the Blockburger test. State v. Ford,
2007-NMCA-052, 141 N.M. 512, 157 P.3d 77, cert. denied, 2007 NMCERT 004, 141
N.M. 568, 158 P.3d 458.

Resisting an officer is a lesser included offense of peace officer battery; the only
difference between the two is that peace officer battery requires the resisting or abusing
to culminate in a touching, while resisting does not. State v. Padilla, 1983-NMCA-096,
101 N.M. 78, 678 P.2d 706, aff'd in part, rev'd in part on other grounds, 1984-NMSC-
026, 101 N.M. 58, 678 P.2d 686, aff'd sub nom. Fugate v. New Mexico, 470 U.S. 904,
105 S. Ct. 1858 (1985), 84 L. Ed. 2d 777.

Conduct constituting an offense. — Driving for two miles without responding to a
police officer’s emergency lights is behavior which violates Section 30-22-1C NMSA
1978. Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157 (10th Cir. 2003).

Violation of Subsection C. — If a stopped driver knows that an officer is trying to
effectuate an arrest, then Section 30-22-1B NMSA 1978 applies if the driver tries to
leave. State v. Baldonado, 1992-NMCA-140, 115 N.M. 106, 847 P.2d 751, cert. denied,
115 N.M. 145, 848 P.2d 531 (1993).

No probable cause. — Where police officers went to defendant’s home to interview
defendant about defendant’s co-worker who was suspected to be involved in a rape;
defendant was cooperative and invited the officers into defendant’s home; during the
interview, defendant decided to end the interview and asked the officers to leave; when
the officers refused, defendant became agitated, and the officers arrested defendant
because the officers speculated that defendant could have been more cooperative and
shared more information about the suspect, the officers did not have probable cause to
arrest defendant for resisting, evading, obstructing, or refusing to obey an officer.
Manzanares v. Higdon, 575 F. 3d 1135 (10th Cir. 2009).

Where police officers were investigating defendant’s child for commission of a felony;
defendant told the officers that defendant did not know the child’s birth date and
address; when the officers asked defendant for identification, defendant responded that
the identification was in defendant’s house; and defendant started walking toward
defendant’s house, the officers did not have probable cause to arrest defendant for
resisting, evading or obstructing an officer. Keylon v. City of Albuquerque, 535 F. 3d
1210 (10th Cir. 2008).

The word "apprehend" includes a situation in which an officer is attempting to briefly
detain a person for questioning based on reasonable suspicion. State v. Gutierrez,
2007-NMSC-033, 142 N.M. 1, 162 P.3d 156.

Sufficient evidence. — Where a police officer had one handcuff on defendant when
defendant pulled away and the officer had to forcibly finish handcuffing defendant, the
evidence was sufficient to support defendant's conviction for resisting, evading or
obstructing an officer. State v. Wilson, 2007-NMCA-111, 142 N.M. 737, 169 P.3d 1184,
cert. denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089.

Where police officers arrested defendant for DWI; defendant argued with the officers
and refused to cooperate; defendant would not put defendant’s legs into the police car
preventing the officers from closing the door; when the officers forced defendant’s legs
into the car, defendant placed defendant’s head in a position that prevented the officer
from closing the door; defendant intentionally fell out of the car; defendant twice kicked
one officer, the evidence was sufficient to support defendant’s conviction of resisting
and abusing an officer. State v. Cotton, 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925,
cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Where police officers were investigating potential drug manufacturing; the officers were
in plain clothes and driving unmarked vehicles; the officers were following defendant
when defendant made a U-turn and stopped; one officer approached defendant’s
vehicle, displayed a badge, and said that the officer wanted to talk with defendant;
defendant asked the officer what was going on and the officer again identified the officer
as a police officer; defendant began creeping defendant’s vehicle toward the officer; the
other officer then approached defendant’s vehicle, identified the officer as a police
officer and displayed a badge; and when the other officer opened the door of
defendant’s vehicle and told the occupants to show their hands, defendant accelerated
the vehicle and the other officer was thrown from the vehicle, there was sufficient
evidence to support defendant’s conviction of resisting, evading, and obstructing an
officer. State v. Akers, 2010-NMCA-103, 149 N.M. 53, 243 P.3d 757.

Where the defendant and the defendant’s vehicle matched the descriptions given to the
officer by the victim of stalking; the officer asked the defendant to stop; the defendant
said he needed to use the bathroom in the house where he had parked his vehicle; the
officer followed the defendant into the house, but the defendant ran out the back door
after he turned and saw the officer behind him and began to run, the officer had
reasonable suspicion to temporarily detain the defendant for questioning and the
defendant did not have the right to walk away from the officer. State v. Gutierrez, 2007-
NMSC-033, 142 N.M. 1, 162 P.3d 156.
Section not vague. — There is no merit to claim that this section is vague on its face.
State v. Andazola, 1981-NMCA-002, 95 N.M. 430, 622 P.2d 1050.

Section places those interfering with officer on notice of criminal sanctions. — In
clear simple language, this statute puts everyone on notice that one would be exposed
to criminal sanctions if he resisted or abused any peace officer who was engaged in the
lawful discharge of his duties. State v. Andazola, 1981-NMCA-002, 95 N.M. 430, 622
P.2d 1050.

Conviction under this section does not bar civil rights claim. — Plaintiff's action
under 42 U.S.C.S. § 1983 alleging that police officers used excessive force against him
would not be barred by his conviction for resisting arrest, whether based on Subsection
A or Subsection D. Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999).

Construction of former law. — Former 40-31-4 and 40-31-5, 1953 Comp., made it
unlawful to obstruct justice, the former relating to obstructing an officer in serving
process and the latter to resisting or abusing an officer while executing the duties of his
office. City of Clovis v. Archie, 1955-NMSC-105, 60 N.M. 239, 290 P.2d 1075.

Applicability of former law. — Kearny Code, Crimes and Punishments, art. 3, § 4,
prescribing penalty for obstruction or assaulting officer serving process was not
applicable where the sheriff was not armed with process. State v. Welch, 1933-NMSC-
084, 37 N.M. 549, 25 P.2d 211 (decided under prior law).

Resisting sheriff formerly serious offense. — Under former law, resisting a sheriff
was itself a felony. State v. Smelcer, 1924-NMSC-059, 30 N.M. 122, 228 P. 183; see
State v. Welch, 1933-NMSC-084, 37 N.M. 549, 25 P.2d 211 (resistance to a sheriff
making a lawful arrest, but not armed with process, a misdemeanor) (decided under
prior law).

Double jeopardy. — Where defendant led police on a high-speed automobile chase
and then got out of his car and fled on foot, his acts supported only one crime founded
on resisting, evading or obstructing an officer, and vacation of his convictions for two
counts of evading an officer was required. State v. Lefebre, 2001-NMCA-009, 130 N.M.
130, 19 P.3d 825.

Jurisdictional exception. — The jurisdictional exception to double jeopardy permitted
defendant's prosecution in the district court on a charge of peace officer battery, after he
had pleaded guilty to several misdemeanors, including resisting arrest, in the magistrate
court. State v. Padilla, 1984-NMSC-026, 101 N.M. 58, 678 P.2d 686, aff'd sub nom.,
Fugate v. New Mexico, 470 U.S. 904, 105 S. Ct. 1858, 84 L. Ed. 2d 777 (1985).

Conviction varying from crime charged in information. — The defendant was
properly convicted of resisting, evading or obstructing an officer, because the evidence
supported the verdict of the jury to that charge, and his opportunity to prepare and
defend against the charge was not impaired by the fact that such an offense varied from
the crime charged in the criminal information, i.e., aggravated assault upon a peace
officer. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857, cert. denied,
107 N.M. 132, 753 P.2d 1320.

"Abusing" speech equated to "fighting" words. — "Abusing" speech in Subsection
D covers only speech that can be called "fighting" words. Any other interpretation of that
subsection applied to speech would render it unconstitutional. State v. Wade, 1983-
NMCA-084, 100 N.M. 152, 667 P.2d 459.

"Fighting" words are those which tend to incite an immediate breach of the peace.
State v. Wade, 1983-NMCA-084, 100 N.M. 152, 667 P.2d 459.

Self-defense distinguished from resisting unlawful arrest. — The right of self-
defense against a police officer is a concept different from the right to resist an unlawful
arrest, in that self-defense is for the purpose of protecting a person's bodily integrity and
health, whereas the purpose of resisting an unlawful arrest is to prevent the arrest.
State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637,
567 P.2d 486.

Limits of right to self-defense. — One has a right to defend oneself from a police
officer, whether the attempted arrest is lawful or unlawful; this right, however, is limited,
so that one may defend oneself against excessive use of force by the officer, but one
may not resort to self-defense when the officer is using necessary force to effect an
arrest. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90
N.M. 637, 567 P.2d 486.

Involuntary manslaughter while resisting arrest. — Instruction that killing an officer
while resisting a lawful arrest was murder in first or second degree was error, since
resistance to arrest, where sheriff was not armed with process, was a misdemeanor and
death without malice resulting therefrom was involuntary manslaughter. State v. Welch,
1933-NMSC-084, 37 N.M. 549, 25 P.2d 211.

Lesser included offense instruction. — In a prosecution for aggravated assault on a
peace officer, since there was evidence that resisting in violation of either Subsection B
or D was the highest degree of crime committed, the defendant was entitled to a charge
on the lesser offense. State v. Diaz, 1995-NMCA-137, 121 N.M. 28, 908 P.2d 258, cert.
denied, 120 N.M. 828, 907 P.2d 1009.

Instruction on self-defense. — Defendant had a limited right of self-defense against
police officer, and was entitled to an instruction on that limited right, which the
instruction did not cover since it went only to the arrest and did not refer to the right to
defend against excessive force whether or not the arrest was unlawful. State v. Kraul,
1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

Defense of another against excessive police force is a viable defense. — The right
to defense of another against a police officer is not absolute; it does not exist if the
officer is using necessary force to effect an arrest. However, a defendant is entitled to a
defense of another jury instruction if an officer used force against another that was
unreasonable and unnecessary. State v. Jones, 2020-NMCA-029.

Where defendant was charged with battery upon a peace officer and resisting or
abusing an officer, and where defendant requested a defense of another jury
instruction, the district court erred in denying the request and in finding that defending
another against excessive force by a police officer was not a viable defense, because
defense of another against excessive police force is a viable defense and reasonable
minds could differ as to whether the officers used excessive force in this case. State v.
Jones, 2020-NMCA-029.

Acquittal bars retrial for battery. — After a magistrate's determination that the
defendant was not guilty of resisting and obstructing an officer and disorderly conduct
because he was acting in defense of another, the state cannot charge him with battery
on a police officer and constitutionally bring him before a new fact finder to relitigate that
same factual issue. State v. Orosco, 1982-NMCA-181, 99 N.M. 180, 655 P.2d 1024.

Evidence insufficient for conviction. — In the absence of evidence that defendant
verbally resisted, evaded or obstructed a police officer, her refusal to allow the officer
admission into her home could not be considered unlawful, and the trial court erred in
denying her motion for a directed verdict. State v. Prince, 1999-NMCA-010, 126 N.M.
547, 972 P.2d 859.

Insufficient evidence of evading an officer. — Where defendant was charged with
intentionally fleeing, attempting to evade or evading an officer after taking a gun inside a
Las Cruces club, there was insufficient evidence to support defendant’s conviction,
because although defendant refused to comply with the officer’s orders to surrender
from inside the club, the state failed to present any evidence that defendant fled,
attempted to evade, or evaded the officers before they were able to arrest him, and
there was no evidence presented to suggest that defendant surreptitiously tried to
escape from the building, such as out the back or side door, in order to evade arrest.
State v. Jimenez, 2017-NMCA-039, cert. denied.

Burden of proof. — In order to convict defendant of evading and eluding a police
officer, the state had the burden of proving that officer was a peace officer engaged in
the lawful discharge of his duty and defendant, with knowledge that officer was
attempting to apprehend or arrest him, fled, attempted to evade, or evaded officer. State
v. Gutierrez, 2005-NMCA-093, 138 N.M. 147, 117 P.3d 953, aff'd in part, rev'd in part,
2007-NMSC-033, 142 N.M. 1, 162 P.3d 156.

Reversal was warranted where defendant was convicted of a crime that the state
had not charged. — Where defendant was charged and convicted of resisting,
evading, or obstructing an officer pursuant to § 30-22-1(D) NMSA 1978, but where, at
trial, the state used, with some customization, the alternative from the uniform jury
instruction that corresponds to § 30-22-1(C) NMSA 1978, the jury was not instructed on
the "resisting or abusing" elements of § 30-22-1(D) that differentiates the offense from
other forms of resisting, evading, or obstructing an officer. Reversal was therefore
warranted, because the jury convicted defendant of a crime for which he had not been
charged. State v. Ocon, 2021-NMCA-032, cert. denied.

Law reviews. — For comment on State v. Selgado, 76 N.M. 187, 413 P.2d 469 (1966),
see 7 Nat. Resources J. 119 (1967).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229
(1982).

For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Obstructing Justice §§
10 to 17.

Criminal liability for obstructing process as affected by invalidity or irregularity of the
process, 10 A.L.R.3d 1146.

What constitutes obstructing or resisting officer, in absence of actual force, 66 A.L.R.5th
397.

Defenses to state obstruction of justice charge relating to interfering with criminal
investigation or judicial proceeding, 87 A.L.R.5th 597.

67 C.J.S. Obstructing Justice §§ 7, 10-14.