N.M. Stat. § 31-18-16 (2026)

basic sentence; suspension and deferral limited.
   A. When a separate finding of fact by the court or jury shows that a firearm was
used in relation to a drug transaction or during the commission of aggravated burglary
pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the basic
sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978
shall be increased by one year, except that when the offender is a serious youthful
offender or a youthful offender who received an adult sentence, the sentence imposed
by this subsection may be increased by one year.

    B. When a separate finding of fact by the court or jury shows that a firearm was
brandished in the commission of a noncapital felony, the basic sentence of
imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be
increased by three years, except that when the offender is a serious youthful offender or
a youthful offender that received an adult sentence, the sentence imposed by this
subsection may be increased by one year.

    C. When a separate finding of fact by the court or jury shows that a firearm was
discharged in the commission of a noncapital felony, the basic sentence of
imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be
increased by five years, except that when the offender is a serious youthful offender or
a youthful offender who received an adult sentence, the sentence imposed by this
subsection may be increased by three years.

    D. For a second or subsequent offense, when a separate finding of fact by the court
or jury shows that a firearm was used, brandished, or discharged in relation to a drug
transaction or during the commission of aggravated burglary pursuant to Section 30-16-
4 NMSA 1978 or a serious violent offense, the sentence shall be increased by five
years, except that when the offender is a serious youthful offender or a youthful
offender, the sentence imposed by this section may be increased by three years.

    E. If the case is tried before a jury and if a prima facie case has been established
showing that a firearm was used, brandished or discharged in relation to a drug
transaction or during the commission of aggravated burglary pursuant to Section 30-16-
4 NMSA 1978 or a serious violent offense, the court shall submit the issue to the jury by
special interrogatory. If the case is tried by the court, the court shall decide the issue
and shall make a separate finding of fact thereon.

    F. When a separate finding of fact by the court or jury shows that a firearm was
used, brandished or discharged in relation to a drug transaction or during the
commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a
serious violent offense, the firearm is subject to seizure and forfeiture as an
instrumentality pursuant to the provisions of the Forfeiture Act [Chapter 31, Article 27
NMSA 1978].

   G. As used in this section:

       (1)     "brandished" means displaying or making a firearm known to another
person while the firearm is present on the person of the offending party with intent to
intimidate or injure a person;

        (2)    "in relation to a drug transaction" means participating or attempting to
participate in the trafficking of a controlled substance pursuant to Section 30-31-20
NMSA 1978, distribution of a controlled substance to a minor pursuant to Section 30-31-
21 NMSA 1978 or distribution of a controlled or counterfeit substance pursuant to
Section 30-31-22 NMSA 1978 as a seller, purported seller or as an accomplice; and

        (3)   "serious violent offense" means an offense enumerated in Subparagraphs
(a) through (n) of Paragraph (4) of Subsection L [N] of Section 33-2-34 NMSA 1978.

History: 1953 Comp., § 40A-29-29, enacted by Laws 1977, ch. 216, § 5; 1979, ch. 152,
§ 3; 1993, ch. 77, § 7; 2020, ch. 54, § 3; 2022, ch. 56, § 30.

                                    ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not
part of the law. Laws 2025, ch. 79, § 4 and Laws 2025, ch. 29, § 1 amended 33-2-34
NMSA 1978, relettering subsections, effective June 20, 2025.

The 2022 amendment, effective May 18, 2022, provided for a sentencing enhancement
when a firearm is used during the commission of a drug transaction or serious violent
offense, and provided that if a firearm is used during the commission of a drug
transaction or serious violent offense, the firearm is subject to seizure; added a new
Subsection A and redesignated former Subsection A as Subsection B; deleted former
Subsection B, added new Subsections C and D and redesignated former Subsection C
as Subsection E; in Subsection E, after "showing that a firearm was", added "used",
after "brandished", deleted "in the commission of the offense" and added "or discharged
in relation to a drug transaction or during the commission of aggravated burglary
pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense", and after "tried
by the court", deleted "and if a prima facie case has been established showing that a
firearm was brandished in the commission of the offense"; added a new Subsection F
and redesignated former Subsection D as Subsection G; and in Subsection G, added
Paragraphs G(2) and G(3).

The 2020 amendment, effective July 1, 2020, increased the sentence enhancements
for brandishing of a firearm in the commission of a noncapital felony, and defined
"brandished" as used in this section; in the section heading, and throughout the section,
substituted "brandished" for "used"; in Subsection A, after "shall be increased by",
deleted "one year and the sentence imposed by this subsection shall be the first served"
and added "three years, except"; in Subsection B, after "shall be increased by", deleted
"three" and added "five", and after "years", deleted "and the sentence imposed by this
subsection shall be the first three years served, and shall not be suspended or deferred;
provided" and added "except"; and added Subsection D.

The 1993 amendment, effective July 1, 1993, added the provisos at the end of
Subsections A and B.

                         I.     GENERAL CONSIDERATION.
Intent of statute is to deter the use of firearms in committing felonies. State v. Trujillo,
1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580 P.2d 972.

Section directed at sentencing only. — This section is, by its own terms and in actual
application, directed at sentencing only. Cordova v. Romero, 614 F.2d 1267 (10th Cir.),
cert. denied, 449 U.S. 851, 101 S. Ct. 142, 66 L. Ed. 2d 63 (1980).

This section does not create new class of crimes; rather, it provides for additional
consequences for felonies committed by use of a firearm. Cordova v. Romero, 614 F.2d
1267 (10th Cir.), cert. denied, 449 U.S. 851, 101 S. Ct. 142, 66 L. Ed. 2d 63 (1980).

There is no repugnancy between 30-16-2 NMSA 1978 and this section. —
Subsection B of this section does not conflict with Section 30-16-2 NMSA 1978 when it
provides that the first year of the statutory sentence shall not be suspended. The two
statutes are in harmony; each expresses a separate legislative intent. State v. Wilkins,
1975-NMCA-069, 88 N.M. 116, 537 P.2d 1012, cert. denied, 88 N.M. 319, 540 P.2d
249.

Combined use of sections creates no new crime. — No new crime is created by the
combined use of Section 30-16-2 NMSA 1978 and this section in an indictment. Section
30-16-2 NMSA 1978 defines robbery with a deadly weapon, the crime of which
defendant was convicted. This section specifies various consequences for the
defendant if a finding is made that the deadly weapon used in the robbery was, in fact, a
firearm, and serves no other purpose in the indictment than to alert the defendant to the
possible sentencing consequences following a conviction under Section 30-16-2 NMSA
1978. State v. Sanchez, 1974-NMCA-144, 87 N.M. 140, 530 P.2d 404.

Section mandatory. — The enhancement provisions of this section are mandatory.
State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on other grounds,
Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Sentence enhancement provisions for use of firearm mandatory. State v. Pendley,
1979-NMCA-036, 92 N.M. 658, 593 P.2d 755.

The provisions of this section were mandatory in a robbery case where a special finding
was made by the jury that a firearm was used. State v. Wilkins, 1975-NMCA-069, 88
N.M. 116, 537 P.2d 1012, cert. denied, 88 N.M. 319, 540 P.2d 249.

A serious youthful offender's sentence may only be increased by one year and
enhancement is discretionary with the district court. — Where defendant was
charged as a serious youthful offender with first-degree felony murder and other
offenses, and where the jury returned a verdict of guilty and found that defendant used
a firearm in the commission of aggravated assault, the district court erred by enhancing
defendant's sentence by four years; the district court only had statutory authority to
enhance defendant's sentence by one year, and doing so was discretionary rather than
mandatory. State v. Revels, 2025-NMSC-021, abrogating State v. Johnson, 1985-
NMCA-074, 103 N.M. 364, 707 P.2d 1174 and State v. Baca, 1997-NMSC-059, 124
N.M. 333, 950 P.2d 776.

Firearm enhancement statute authorizes multiple punishments for the
commission of a noncapital felony with a firearm. — Where defendant was
convicted of two counts of aggravated assault with a deadly weapon, and where
defendant’s sentences on these counts were each enhanced by one year, defendant’s
right to be free from double jeopardy was not violated, because 31-18-16(A) NMSA
1978 authorizes multiple punishments for the commission of a noncapital felony with a
firearm, and where a legislature specifically authorizes cumulative punishment under
two statutes, regardless of whether those two statutes proscribe the same conduct
under Blockburger, a court may impose cumulative punishment under such statutes in a
single trial. State v. Baroz, 2017-NMSC-030.

Sentence enhancements for committing aggravated battery and aggravated
assault with a firearm. — Double jeopardy was not violated where the sentences for
defendant's aggravated battery and aggravated assault convictions were each
increased by the firearm enhancement, because the legislature intended to authorize
greater punishment when a firearm is used in the commission of aggravated assault
and aggravated battery. State v. Comitz, 2019-NMSC-011.

Firearm enhancements to convictions for aggravated battery with a deadly
weapon and aggravated assault with a deadly weapon do not violate double
jeopardy. — Where defendant was convicted of aggravated battery with a deadly
weapon for shooting and injuring his son and aggravated assault with a deadly weapon
because his wife was standing next to their son at the time of the shooting, defendant's
double jeopardy rights were not violated when the district court enhanced defendant's
sentence based on the use of a firearm during the commission of the crimes, because
the legislature intended to authorize an enhanced punishment when a firearm is used in
the commission of a noncapital felony. State v. Branch, 2018-NMCA-031, replacing
2016-NMCA-071, 387 P.3d 250, cert. denied.

Firearm enhancements to convictions for aggravated battery with a deadly
weapon and aggravated assault with a deadly weapon violate double jeopardy. —
Where defendant was convicted of aggravated battery with a deadly weapon for
shooting and injuring his son and for aggravated assault with a deadly weapon for
assaulting his wife, who was standing next to defendant’s son when he was shot,
double jeopardy was violated because the firearm enhancements are subsumed within
the underlying offenses, and punishment cannot be had for both the enhancements and
the enhanced offenses. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by
2018-NMCA-031, and cert. quashed.

Application not prohibited by double jeopardy provisions. — Neither the rules of
statutory construction nor the federal and state constitutional provisions against double
jeopardy prohibit the application of the firearm enhancement statute to a person
convicted of aggravated battery with a deadly weapon when the weapon used was a
firearm. State v. Gonzales, 1981-NMCA-023, 95 N.M. 636, 624 P.2d 1033, overruled on
other grounds by Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.

No double jeopardy in aggravated assault application. — Double jeopardy did not
prohibit the trial court from enhancing defendant's sentence for aggravated assault with
a deadly weapon (Section 30-3-2A NMSA 1978), under this section, since each section
contains an element or elements not included in the other and the phrase "a noncapital
felony" means "any noncapital felony". State v. Charlton, 1992-NMCA-124, 115 N.M.
35, 846 P.2d 341, cert. denied, 114 N.M. 577, 844 P.2d 827.

Judgment suspending firearm enhancement provision of original sentence void,
and later resentencing constitutional. — Since a judgment purporting to suspend a
firearm enhancement provision of an original sentence is void, where the defendant is
not sentenced to serve any time of official confinement, he cannot be said to have
served any portion thereof and he cannot be held to have accrued a right to a credit
against the enhanced portion of his sentence as later imposed. Double jeopardy does
not attach, and a resentencing for the mandatory enhancement provision of this section
must stand. State v. Aguilar, 1982-NMCA-116, 98 N.M. 510, 650 P.2d 32, cert. denied,
98 N.M. 478, 649 P.2d 1391.

Relation to Section 31-18-15.1 NMSA 1978. — The defendant was charged with the
use of a firearm in the murder of a police officer, and the jury found that he did use a
firearm in committing that crime. This section provided a separate and distinct basis
(use of a firearm) for further altering his basic sentence in addition to the alteration for
aggravating circumstances permitted by Section 31-18-15.1 NMSA 1978: the language
and requirements of each statute were totally independent of the other. State v. Hall,
1987-NMCA-145, 107 N.M. 17, 751 P.2d 701, cert. denied, 107 N.M. 16, 751 P.2d 700.

It is solely within province of legislature to establish penalties for criminal
behavior. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22, cert. denied, 98
N.M. 478, 649 P.2d 1391.

                            II.    PROCEDURAL MATTERS.

Punishment to be applied for each felony committed. — If this section punishes for
"use" of a firearm in committing a felony, the punishment is to be applied for each felony
committed by using a firearm. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561
P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561
P.2d 464.

Application to some, not all, of crimes charged. — The trial court did not err in
applying this section to two of the crimes which the defendant committed, rather than
applying one firearm enhancement sentence to his entire series of crimes. State v.
Espinosa, 1988-NMSC-050, 107 N.M. 293, 756 P.2d 573.
Notification to defendant. — Under this section, the prosecution does not have to
formally notify a defendant in a charging instrument of either firearm use or that the
state may seek a firearm enhanced sentence. State v. Badoni, 2003-NMCA-009, 133
N.M. 257, 62 P.3d 348, cert. denied, 133 N.M. 126, 61 P.3d 835.

Section requires separate finding of fact that firearm was used. — Where the jury
did not make a separate finding of fact as to use of a firearm, the enhanced sentence
under this section was not proper. State v. Duran, 1977-NMCA-091, 91 N.M. 35, 570
P.2d 39, cert. denied, 91 N.M. 3, 569 P.2d 413, cert. denied, 435 U.S. 972, 98 S. Ct.
1615, 56 L. Ed. 2d 65 (1978).

Objection to absence of separate finding not waived. — Defendant did not waive his
objection to the absence of a separate finding of fact by failing to request that the
special interrogatory be submitted to the jury, as it was not defendant's obligation to see
that his sentence was enhanced. State v. Duran, 1977-NMCA-091, 91 N.M. 35, 570
P.2d 39, cert. denied, 91 N.M. 3, 569 P.2d 413, cert. denied, 435 U.S. 972, 98 S. Ct.
1615, 56 L. Ed. 2d 65 (1978).

Use of firearm must be proved beyond reasonable doubt. — Proof beyond a
reasonable doubt is the traditional burden which our system of criminal justice deems
essential, and the due process clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged; this standard applies not only to factual determinations of
guilt, but also to the factual determination that a firearm was used, because that fact is a
predicate for enhancing defendant's sentence. State v. Kendall, 1977-NMCA-002, 90
N.M. 236, 561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90
N.M. 191, 561 P.2d 464.

Failure to instruct as to burden of proof. — Where the burden of proof instruction, by
its wording, was applied to a determination of guilt, no reference was made to use of a
firearm, and after the guilty verdicts were returned, instructions were given submitting
the use of a firearm issue to the jury without a burden of proof instruction, the jury was
not instructed on the burden of proof concerning use of a firearm; however, defendant
did not complain of the absence of an instruction, he acquiesced in submitting only use
instructions after a guilty verdict was returned, the evidence was almost uncontradicted
that a firearm was used as to each count, and, accordingly, there was no violation of
federal due process because the jury was not instructed that the firearm use must be
proved beyond a reasonable doubt. State v. Kendall, 1977-NMCA-002, 90 N.M. 236,
561 P.2d 935, rev'd on other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191,
561 P.2d 464.

Prior conviction required. — For there to be a second or subsequent felony within the
terms of the statute, there must have been a conviction preceding the commission of
the offense to which application of the statute is sought. State v. Garcia, 1978-NMSC-
039, 91 N.M. 664, 579 P.2d 790.
Proper to enhance sentences under both habitual offender and firearm
enhancement provisions. — It is not improper to enhance a sentence under the
general habitual offender statute if it has already been enhanced under the firearm
enhancement statute. State v. Reaves, 1982-NMCA-169, 99 N.M. 73, 653 P.2d 904.

Failure to enhance felony sentences as required. — Where the defendant was
convicted of three counts, the trial court failed to follow the habitual offender statute
when it enhanced defendant's total sentence by one year, because the habitual offender
statute required the court to enhance each of defendant's current felony sentences by
one year. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51, cert. denied,
111 N.M. 529, 807 P.2d 227.

                                  III.   SENTENCES.

Service of a mandatory sentence under house arrest. — The mandatory firearm
enhancement of a one-year term of imprisonment set forth in Subsection A of Section
31-18-16 NMSA 1978 may be served under house arrest by an electronic monitor under
the supervision of state or local law enforcement or correctional officers if the defendant
is subject to being punished for a crime of escape for an unauthorized departure from
the place of confinement or other non-compliance with the sentencing court’s order.
State v. Woods, 2010-NMCA-017, 148 N.M. 89, 230 P.3d 836, cert. denied, 2010-
NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Sentence to house arrest. — Where defendant, who was a state park ranger, fatally
shot the victim during a confrontation, and defendant pleaded guilty to voluntary
manslaughter resulting in the death of a human being with a mandatory firearm
enhancement, the district court had authority to sentence defendant to house arrest by
electronic monitor with global positioning system capability and work release to satisfy
the mandatory sentence of imprisonment for one year. State v. Woods, 2010-NMCA-
017, 148 N.M. 89, 230 P.3d 836, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227
P.3d 1055.

Sentences served concurrently unless trial court or legislature requires
consecutive sentences. — The trial court has discretion to require sentences to be
served consecutively, but if this is not done, and there is no legislation covering the
situation, the sentences are to be served concurrently. State v. Mayberry, 1982-NMCA-
061, 97 N.M. 760, 643 P.2d 629.

Section does not negate enhanced sentence for accessory. — This section is
worded in terms of a finding of fact "that a firearm was used in the commission" of the
crime, but the statutory wording does not limit the enhanced sentence to situations
where the defendant was the user of the firearm. Thus, the statute does not negate an
enhanced sentence for an accessory when a firearm was used by the principal. State v.
Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d
414; State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313, cert. denied, 100
N.M. 192, 668 P.2d 308.
Concurrent or consecutive sentences. — The trial court has authority to order that a
sentence be served concurrently or consecutively, and this section made no change in
this authority. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd on
other grounds, Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

The trial court has the discretion to order that sentences for different offenses be served
concurrently or consecutively. State v. Lopez, 1983-NMCA-045, 99 N.M. 612, 661 P.2d
890.

New consecutive sentence following remand allowable where less than maximum
possible penalty. — A new sentence imposed by the trial court following remand does
not constitute a punishment for the defendant having previously exercised his rights to
appeal where the term of incarceration ordered upon remand is less than the maximum
penalty which can be imposed, despite the fact part of the new sentence is to be served
consecutively, rather than concurrently. State v. Lopez, 1983-NMCA-045, 99 N.M. 612,
661 P.2d 890.

Sentences cannot be served concurrently. — An additional one-year sentence for
the use of a firearm and an additional one-year sentence as an habitual offender cannot
be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d
629.

                                IV.    SPECIFIC CASES.

Use of noncapital felonies to enhance a capital felony. — Where defendant was
convicted of first degree murder, a capital felony, the district court erred in enhancing
defendant’s sentence for the use of a firearm in the commission of the offense, because
the enhancement for the use of a firearm applied only to noncapital felonies. State v.
Serna, 2013-NMSC-033.

"Use" of gun properly included within scope of statute. — The display of a gun in a
menacing manner as a means of accomplishing a robbery or the employment of the gun
to strike or "pistol whip" the victim is certainly "use" of the gun in the commonly
accepted definition of that term. Because either such "use," i.e., the menacing display of
or striking the victim with the gun, carries the ever-dangerous potential of a discharge of
firearm, both such "uses" are properly included within the scope of the statute. State v.
Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580
P.2d 972.

Shotgun used as club. — Defendant "used" the firearm within the meaning of the
statute when he used the shotgun as a club in committing aggravated battery. State v.
Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580
P.2d 972.

Possession of firearm not "use" of firearm. — Possession of a firearm during the
commission of a felony does not constitute "use" of a firearm under this section since
the defendant never pulled the firearm or in any way threatened to use it. State v.
Chouinard, 1979-NMCA-145, 93 N.M. 634, 603 P.2d 744.

No enhancement for charge of negligent use of firearm. — Under the facts of this
case, the state was required to prove that the defendant negligently used a firearm to
commit a noncapital felony and this conduct resulted in the death of a human being.
Use of a firearm is thus the same conduct required to enhance defendant's sentence
under Subsection A. Because the state would not be required to prove any additional
facts in order to have the defendant's sentence enhanced, the firearm enhancement
statute is subsumed within the offense of involuntary manslaughter by negligent use of
a firearm. State v. Franklin, 1993-NMCA-135, 116 N.M. 565, 865 P.2d 1209.

Sentence enhancement was improper where jury did not make a finding that a
firearm was "brandished" during the commission of aggravated assault with a
deadly weapon. — Where defendant was convicted of attempt to commit armed
robbery and aggravated assault with a deadly weapon, the sentence of which was
enhanced by three years based on the jury's finding that a firearm was "used" in the
commission of that crime, the district court exceeded its jurisdiction in applying the
firearm enhancement to defendant's conviction for aggravated assault because the jury
did not make a separate finding of fact as to whether a firearm was "brandished" in the
commission of that crime. The term "brandish" has a different meaning than "use."
State v. Garrett, 2026-NMCA-016.

Conspiracy not susceptible to firearm enforcement. — Since conspiracy is an
initiatory crime which involves no physical act other than communication, it is not
conceivable how a firearm could be used in the commission of that offense.
Accordingly, the crime of conspiracy is not susceptible to firearm enhancement under
this section. State v. Padilla, 1994-NMCA-067, 118 N.M. 189, 879 P.2d 1208.

Law reviews. — For survey, "Evidence: Prior Crimes and Prior Bad Acts Evidence,"
see 6 N.M.L. Rev. 405 (1976).

For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing
Act," see 9 N.M.L. Rev. 131 (1978-79).

For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11
N.M.L. Rev. 85 (1981).

For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323
(1983).

For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev.
341 (1983).

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. — 21 Am. Jur. 2d Criminal Law § 926.

Validity of statutes prohibiting or restricting parole, probation, or suspension of sentence
in cases of violent crimes, 100 A.L.R.3d 431.

Propriety of using single prior felony conviction as basis for offense of possessing
weapon by convicted felon and to enhance sentence, 37 A.L.R.4th 1168.