N.M. Stat. § 30-22-21 (2026)

A. Assault upon a peace officer consists of:

        (1)    an attempt to commit a battery upon the person of a peace officer while he
is in the lawful discharge of his duties; or

       (2)     any unlawful act, threat or menacing conduct which causes a peace officer
while he is in the lawful discharge of his duties to reasonably believe that he is in danger
of receiving an immediate battery.

   B. Whoever commits assault upon a peace officer is guilty of a misdemeanor.

History: 1953 Comp., § 40A-22-20, enacted by Laws 1971, ch. 265, § 1.

                                      ANNOTATIONS

Cross references. — For assaults and batteries, see 30-3-1 to 30-3-5 NMSA 1978.

For petty misdemeanor of resisting or obstructing an officer, see 30-22-1 NMSA 1978.

For third-degree felony of assault by prisoner, see 30-22-17 NMSA 1978.

Sufficient evidence. — Where defendant approached a police officer with clenched
fists, shouting and threatening to punch the officer, and defendant had chest-butted
another officer, the evidence was sufficient to support defendant’s conviction for assault
upon a police officer. 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.

Fact that defendant's gunfire hit police officers does not show an absence of
evidence of assault, where there is evidence of an assault under Subsection A(2) of
Section 30-22-21 NMSA 1978. State v. Brown, 1979-NMCA-038, 93 N.M. 236, 599 P.2d
389, cert. quashed, 93 N.M. 172, 598 P.2d 215, and cert. denied, 444 U.S. 1084, 100 S.
Ct. 1041, 62 L. Ed. 2d 769 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Extent of injuries: admissibility, in
prosecution for assault or similar offense involving physical violence, of extent or effect
of victim's injuries, 87 A.L.R.2d 926.

6A C.J.S. Assault and Battery § 81.
30-22-22. Aggravated assault upon peace officer.
   A. Aggravated assault upon a peace officer consists of:

       (1)     unlawfully assaulting or striking at a peace officer with a deadly weapon
while he is in the lawful discharge of his duties;

       (2)   committing assault by threatening or menacing a peace officer who is
engaged in the lawful discharge of his duties by a person wearing a mask, hood, robe or
other covering upon the face, head or body, or while disguised in any manner so as to
conceal identity; or

      (3)    willfully and intentionally assaulting a peace officer while he is in the lawful
discharge of his duties with intent to commit any felony.

   B. Whoever commits aggravated assault upon a peace officer is guilty of a third
degree felony.

History: 1953 Comp., § 40A-22-21, enacted by Laws 1971, ch. 265, § 2.

                                     ANNOTATIONS

Cross references. — For definition of deadly weapon, see 30-1-12 NMSA 1978.

For aggravated assault, see 30-3-2 NMSA 1978.

For third-degree felony of assault by prisoner, see 30-22-17 NMSA 1978.

Lesser included offense. — When an accused is charged under Section 30-22-1B
NMSA 1978, the fleeing, evading method of resisting, evading or obstructing an officer,
it is not a lesser included offense of 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.

Intent required to sustain conviction under this section is that of conscious
wrongdoing. Rutledge v. Fort, 1986-NMSC-017, 104 N.M. 7, 715 P.2d 455, overruled on
other grounds by Reese v. State, 1987-NMSC-079, 106 N.M. 498, 745 P.2d 1146.

Conscious wrongdoing required. — Conscious wrongdoing is an essential element of
Paragraph (1) of Subsection A, and instructions in the language of the statute were
insufficient to inform the jury of the intent required. State v. Cutnose, 1974-NMCA-130,
87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888 (1975).

Sufficient evidence of aggravated assault on a peace officer based on a theory of
accessory liability. — Where police officers attempted to execute a search of
defendant’s residence pursuant to a warrant, and where, as officers approached a
camper on the property, the officers heard and saw gunfire coming from the camper,
striking one of the officers, evidence that defendant owned the camper and was inside
the camper at the time of the gunfire, and that DNA tests performed on several of the
firearms retrieved from the camper found that defendant was either a major contributor
of the DNA or could not be eliminated as a contributor, was sufficient for a reasonable
jury to infer that defendant either shot at the officers himself, or, given the availability of
firearms and ammunition inside his camper, defendant encouraged, helped, or caused
others to shoot at the officers. State v. Uribe-Vidal, 2018-NMCA-008.

Defendant's knowledge as to identity of peace officer assaulted is a necessary
element of the crimes defined in this section and Section 30-22-24 NMSA 1978. State v.
Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119; Reese v. State, 1987-NMSC-
110, 106 N.M. 505, 745 P.2d 1153.

To deny the defendant the right to have the jury informed as to his knowledge of the
identity of police officer he assaulted would be to deny him the right to have the jury
apprised of a necessary element of the crime for which he is charged, and that in turn
would be to deny him his constitutional guarantee of due process of law, Reese v.
State, 1987-NMSC-110, 106 N.M. 505, 745 P.2d 1153.

Officer's performance is essential element of crime because of the requirement that
the jury be instructed that the officer must have been performing his duties and the
restriction on fiddling with an elements instruction. State v. Rhea, 1979-NMCA-121, 93
N.M. 478, 601 P.2d 448.

Omission of essential elements in jury instruction did not amount to fundamental
error. — Where defendant was charged with aggravated assault on a police officer
based on facts that he walked towards a police officer, who was in the lawful
performance of his duties, with a knife and made a stabbing motion, and where, at trial,
the given jury instruction erroneously failed to inform the jury that it was also required to
find that defendant used a deadly weapon and that his conduct was unlawful, the
omission did not rise to the level of fundamental error because an appellate court may
affirm a conviction notwithstanding the absence of an implicit jury finding on an omitted
element if the jury, having considered the parties' legal and factual presentations and
having returned a guilty verdict on the given instructions, undoubtedly would have found
the essential element if properly instructed, and the facts and circumstances of this case
show that the jury implicitly found the missing elements in reaching its verdict. The jury
explicitly found that defendant walked towards the officer with a large, sharp knife and
made a stabbing motion, placing the officer in an objectively reasonable fear for his
personal safety, amounting to a finding that defendant used the knife as a weapon, and
undoubtedly would have found, if instructed properly, that the knife was capable of
causing death or great bodily harm and that defendant acted unlawfully. State v. Ocon,
2021-NMCA-032, cert. denied.

Sufficient evidence to support jury's verdict despite erroneous instruction. —
Where defendant was charged with aggravated assault on a police officer based on
facts that he walked towards a police officer, who was in the lawful performance of his
duties, with a knife and made a stabbing motion, and where, at trial, the given jury
instruction erroneously failed to inform the jury that it was also required to find that
defendant used a deadly weapon and that his conduct was unlawful, there was
sufficient evidence to support the jury's verdict where the jury was instructed that to
convict defendant of aggravated assault upon a peace officer, it had to find beyond a
reasonable doubt that defendant walked toward the officer with a knife and made a
stabbing motion, defendant's conduct caused the officer to believe defendant was about
to intrude on the officer's personal safety by touching or applying force to the officer in a
rude, insolent or angry manner, that a reasonable person in the same circumstances as
the officer would have the same belief, and that defendant used a knife, and where the
state presented lapel camera video and still photos showing the knife laying on the
kitchen floor, and established, through testimony of the officer, that defendant thrusted
and slashed at the officer with a knife and reared back in a stabbing motion, placing the
officer in fear for his life. State v. Ocon, 2021-NMCA-032, cert. denied.

When officer in lawful discharge of duties. — Even if an officer makes an arrest
without probable cause, the officer is performing official duties if the officer is acting in
good faith and within the scope of what the officer is employed to do. State v. Tapia,
2000-NMCA-054, 129 N.M. 209, 4 P.3d 37, cert. denied, 129 N.M. 208, 4 P.3d 36.

Jury instruction on self-defense. — Where a police officer stopped defendant for
failing to wear a seat belt; defendant became angry and grabbed defendant’s driver’s
license from the officer; the officer drew a gun; defendant drove away; when the officer
caught up with defendant, defendant approached the officer in an aggressive manner,
cursing the officer; the officer sprayed defendant with pepper spray and drew the
officer’s gun; and defendant picked up a tire iron and approached the officer, the officer
used reasonable force and defendant was not entitled to a self-defense instruction.
State v. Ellis, 2008-NMSC-032, 144 N.M. 253, 186 P.3d 245, rev'g 2007-NMCA-037,
141 N.M. 370, 155 P.3d 775.

Failure to instruct reversible error. — The failure to instruct that the officer must have
been performing his duties is the omission of an essential element, and this omission
requires reversal of a conviction of aggravated assault upon a peace officer. State v.
Rhea, 1979-NMCA-121, 93 N.M. 478, 601 P.2d 448.

Assault with razor. — Testimony of police officers concerning incidents where
defendant struck at officers with a straight razor was substantial evidence to support
defendant's conviction for aggravated assault upon a peace officer. State v. Vallejos,
1974-NMCA-009, 86 N.M. 39, 519 P.2d 135.

Lesser included offense instruction on resisting arrest. — In a prosecution for
aggravated assault on a peace officer, since there was evidence that resisting in
violation of either Subsection B or D of 30-22-1 NMSA 1978 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.

Conviction of resisting, evading, or obstructing police officer. — 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.

Collateral estoppel. — The state is collaterally estopped from attempting to prove in
district court that the defendant was the driver of a car used in an assault when it has
already tried and failed to prove this same issue in municipal court. Abramson v. Griffin,
693 F.2d 1009 (10th Cir. 1982).

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see
5 N.M.L. Rev. 63 (1974).

For annual survey of New Mexico criminal law and procedure, 19 N.M.L. Rev. 655
(1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Intent to do physical harm as essential
element of crime of assault with deadly or dangerous weapon, 92 A.L.R.2d 635.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.