A. Negligent use of a deadly weapon consists of:
(1) discharging a firearm into any building or vehicle or so as to knowingly
endanger a person or his property;
(2) carrying a firearm while under the influence of an intoxicant or narcotic;
(3) endangering the safety of another by handling or using a firearm or other
deadly weapon in a negligent manner; or
(4) discharging a firearm within one hundred fifty yards of a dwelling or
building, not including abandoned or vacated buildings on public lands during hunting
seasons, without the permission of the owner or lessees thereof.
B. The provisions of Paragraphs (1), (3) and (4) of Subsection A of this section shall
not apply to a peace officer or other public employee who is required or authorized by
law to carry or use a firearm in the course of his employment and who carries, handles,
uses or discharges a firearm while lawfully engaged in carrying out the duties of his
office or employment.
C. The exceptions from criminal liability provided for in Subsection B of this section
shall not preclude or affect civil liability for the same conduct.
Whoever commits negligent use of a deadly weapon is guilty of a petty
misdemeanor.
History: 1953 Comp., § 40A-7-3, enacted by Laws 1963, ch. 303, § 7-3; 1977, ch. 266,
§ 1; 1979, ch. 79, § 1; 1993, ch. 139, § 1.
ANNOTATIONS
Cross references. — For authority of conservation officers to enforce these provisions
under emergency circumstances, see 17-2-19 NMSA 1978.
The 1993 amendment, effective June 18, 1993, substituted "a dwelling or building, not
including abandoned or vacated buildings on public lands during hunting seasons" for
"an inhabited dwelling or building" in Subsection A(4) and inserted "of this section" in
Subsection C.
Subsection A(2) is not unconstitutionally vague. A person of ordinary intelligence
would understand what conduct is prohibited by the statute: having a firearm nearby,
readily capable of being put into action or service, while under the influence of alcohol.
The statute plainly does not require that the intoxicated person actually use or intend to
use the firearm. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, cert.
denied, 115. N.M. 228, 849 P.2d 371.
Constitutionality. — Possession of firearms by intoxicated persons presents a clear
danger to the public. The state constitution does not support a right to engage in this
type of behavior. Therefore, the defendant's conviction for negligent use of a deadly
weapon did not violate his right to bear arms under the state constitution, since there
was evidence that he was intoxicated, he pointed the gun at another person, and he
appeared to be loading the gun. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853
P.2d 126, cert. denied, 115. N.M. 228, 849 P.2d 371.
"Negligent" defined. — "Negligent" means omitting to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable man
would not do. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled,
Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; see State v.
Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.
Criminal negligence is not negligence referred to in Subsection C (now Subsection
A (3) of this section). State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693.
Evidence of frame of mind. — Evidence of conduct at and subsequent to commission
of crime of unlawfully discharging a firearm in a settlement was competent to show
frame of mind of defendant. State v. Bustillos, 1932-NMSC-004, 36 N.M. 30, 7 P.2d
296.
Instruction required in homicide case. — In homicide prosecution where one of
defendant's theories was involuntary manslaughter, and record was replete with
testimony that defendant was drunk while he rode around in automobile with deceased
and witness holding and handling sawed-off shotgun, court's refusal to instruct the jury
that negligent use of a weapon while under influence of an intoxicant was a petty
misdemeanor left jury without a guide to determine whether this was a killing while in
the commission of a misdemeanor, and was reversible error. State v. Durham, 1971-
NMCA-168, 83 N.M. 350, 491 P.2d 1161.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Weapons and Firearms
§ 29.
Liability of private citizen or his employer for injury or damage to third person resulting
from firing of shots at fleeing criminal, 29 A.L.R.4th 144.
Handgun manufacturer's or seller's liability for injuries caused to another by use of gun
in committing crime, 44 A.L.R.4th 595.
Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.
94 C.J.S. Weapons § 20.
Notes of Decisions
Cited in
33
cases (
14 in the last 5 years), 1981–2026 · leading case:
State v. Franklin, 865 P.2d 1209 (N.M. Ct. App. 1993).
State v. Franklin, 865 P.2d 1209 (N.M. Ct. App. 1993).
· cites it 30× “If anything, use of the word "firearm" in Section 30-7-4 indicates that the legislature has already considered firearm use as a factor in setting the base penalty for the offense.”
State v. Rivera, 853 P.2d 126 (N.M. Ct. App. 1993).
· cites it 23× “He raises the following issues: (1) whether the negligent use of a deadly weapon statute, NMSA 1978, § 30-7-4 (Repl.Pamp.1984), violates his right to bear arms under the New Mexico Constitution; (2) whether Section 30-7-4 is unconstitutionally overbroad and vague; (3) whether…”
State v. Elmquist, 844 P.2d 131 (N.M. Ct. App. 1992).
· cites it 8× “” NMSA 1978, § 30-7-4 (Repl.Pamp.1984) (negligent use of a deadly weapon).”
Santillanes v. State, 849 P.2d 358 (N.M. 1993).
· cites it 4× “See NMSA 1978, § 30-7-4 (Repl.Pamp. 1984) (negligent use of deadly weapon); NMSA 1978, § 30-7-6 (Repl.”
State v. Young, 2021-NMCA-049, 495 P.3d 1189.
· cites it 8× “Section 30-7-4. B. A Reasonable Jury Could Acquit Defendant of Aggravated Assault and Convict Him of Negligent Use of a Deadly Weapon {24} The question for this Court is, can reasonable minds differ based on the evidence at trial regarding whether Defendant’s conduct constitutes…”
State v. Salazar, 1997-NMSC-044, 945 P.2d 996.
· cites it 2× “Further, in waving the gun at Manzanares through the window of a moving vehicle, the Defendant arguably was in violation of NMSA 1978, Section 30-7-4(A)(3) (1993), endangering the safety of another by handling a firearm in a negligent manner.”
Milliron v. Cnty. of San Juan, 2016-NMCA-096, 384 P.3d 1089.
· cites it 2× “FRENCH, Judge 1 See NMSA 1978, § 30-7-4 (1979, amended 1993) (prohibiting the negligent use of a deadly weapon).”
State v. Anderson, 2001-NMCA-027, 24 P.3d 327.
· cites it 2× “The statutes and related UJIs requiring use are: NMSA 1978, § 30-3-2A (1963) (aggravated assault) with UJI 14-304, 14-305, and 14-306 NMRA 2001; NMSA 1978, § 30-3-5C (1969) (aggravated battery) with UJI 14-322 NMRA 2001; NMSA 1978, § 30-7-4 (1993) (negligent use of a deadly…”
State v. Gutierrez, 1998-NMCA-172, 969 P.2d 970.
· cites it 2× “The jury instruction provided that Defendant could be found guilty of negligent use of a firearm if she either (1) discharged a firearm, knowing that she was endangering a person, or (2) endangered the safety of another by handling or using a firearm in a negligent manner.”
State v. Yarborough, 905 P.2d 209 (N.M. Ct. App. 1995).
· cites it 3× “The Court cites, for example, the negligent use of a deadly weapon statute, § 30-7-4, for the purpose of illustrating that crimes punishable as petty misdemeanors properly require a showing of only ordinary civil negligence.”
State v. Carpenter, 2016-NMCA-058, 10 N.M. 63.
· cites it 2× “Defendant was charged with second degree murder, contrary to NMSA 1978, § 30-2-l(B) (1994), and negligent use of a deadly weapon, contrary to NMSA 1978, § 30-7-4(A)(2) (1993). The case proceeded to a jury trial.”
United States v. Saavedra, 523 F.3d 1287 (10th Cir. 2008).
“, Code § 12-2-9, with N.M. Stat. § 30-7-4. Thus, if Saavedra’s ordinance violation resulted, for example, from “discharging a weapon within the city limits without justification,” he would not have committed a crime under state law, and it would be improper to credit this…”
N.M. Stat. § 30-7-4(A): 4 cases
State v. Young, 2021-NMCA-049, 495 P.3d 1189.
“Section 30-7-4. B. A Reasonable Jury Could Acquit Defendant of Aggravated Assault and Convict Him of Negligent Use of a Deadly Weapon {24} The question for this Court is, can reasonable minds differ based on the evidence at trial regarding whether Defendant’s conduct constitutes…”
N.M. Stat. § 30-7-4(A)(1): 2 cases
N.M. Stat. § 30-7-4(A)(2): 9 cases
State v. Rivera, 853 P.2d 126 (N.M. Ct. App. 1993).
“He raises the following issues: (1) whether the negligent use of a deadly weapon statute, NMSA 1978, § 30-7-4 (Repl.Pamp.1984), violates his right to bear arms under the New Mexico Constitution; (2) whether Section 30-7-4 is unconstitutionally overbroad and vague; (3) whether…”
State v. Young, 2021-NMCA-049, 495 P.3d 1189.
“Section 30-7-4. B. A Reasonable Jury Could Acquit Defendant of Aggravated Assault and Convict Him of Negligent Use of a Deadly Weapon {24} The question for this Court is, can reasonable minds differ based on the evidence at trial regarding whether Defendant’s conduct constitutes…”
State v. Carpenter, 2016-NMCA-058, 10 N.M. 63.
“Defendant was charged with second degree murder, contrary to NMSA 1978, § 30-2-l(B) (1994), and negligent use of a deadly weapon, contrary to NMSA 1978, § 30-7-4(A)(2) (1993). The case proceeded to a jury trial.”
N.M. Stat. § 30-7-4(A)(3): 9 cases
State v. Franklin, 865 P.2d 1209 (N.M. Ct. App. 1993).
“If anything, use of the word "firearm" in Section 30-7-4 indicates that the legislature has already considered firearm use as a factor in setting the base penalty for the offense.”
State v. Salazar, 1997-NMSC-044, 945 P.2d 996.
“Further, in waving the gun at Manzanares through the window of a moving vehicle, the Defendant arguably was in violation of NMSA 1978, Section 30-7-4(A)(3) (1993), endangering the safety of another by handling a firearm in a negligent manner.”
Santillanes v. State, 849 P.2d 358 (N.M. 1993).
“See NMSA 1978, § 30-7-4 (Repl.Pamp. 1984) (negligent use of deadly weapon); NMSA 1978, § 30-7-6 (Repl.”
State v. Gutierrez, 1998-NMCA-172, 969 P.2d 970.
“The jury instruction provided that Defendant could be found guilty of negligent use of a firearm if she either (1) discharged a firearm, knowing that she was endangering a person, or (2) endangered the safety of another by handling or using a firearm in a negligent manner.”
State v. Yarborough, 905 P.2d 209 (N.M. Ct. App. 1995).
“The Court cites, for example, the negligent use of a deadly weapon statute, § 30-7-4, for the purpose of illustrating that crimes punishable as petty misdemeanors properly require a showing of only ordinary civil negligence.”
N.M. Stat. § 30-7-4(A)(4): 2 cases
N.M. Stat. § 30-7-4(C): 1 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.