N.M. Stat. § 31-20-6 (2026)

The magistrate, metropolitan or district court shall attach to its order deferring or
suspending sentence reasonable conditions as it may deem necessary to ensure that
the defendant will observe the laws of the United States and the various states and the
ordinances of any municipality. The defendant upon conviction shall be required to
reimburse a law enforcement agency or local crime stopper program for the amount of
any reward paid by the agency or program for information leading to the defendant's
arrest, prosecution or conviction, but in no event shall reimbursement to the crime
stopper program preempt restitution to victims pursuant to the provisions of Section 31-
17-1 NMSA l978. The defendant upon conviction shall be required to pay the actual
costs of the defendant's supervised probation service to the adult probation and parole
division of the corrections department or appropriate responsible agency for deposit to
the corrections department intensive supervision fund not exceeding one thousand eight
hundred dollars ($1,800) annually to be paid in monthly installments of not less than
twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set
by the appropriate district supervisor of the adult probation and parole division, based
upon the financial circumstances of the defendant. The defendant's payment of the
supervised probation costs shall not be waived unless the court holds an evidentiary
hearing and finds that the defendant is unable to pay the costs. If the court waives the
defendant's payment of the supervised probation costs and the defendant's financial
circumstances subsequently change so that the defendant is able to pay the costs, the
appropriate district supervisor of the adult probation and parole division shall advise the
court and the court shall hold an evidentiary hearing to determine whether the waiver
should be rescinded. The court may also require the defendant to:
   A. provide for the support of persons for whose support the defendant is legally
responsible;

   B. undergo available medical or psychiatric treatment and enter and remain in a
specified institution when required for that purpose;

   C. be placed on probation under the supervision, guidance or direction of the adult
probation and parole division for a term not to exceed five years;

    D. serve a period of time in volunteer labor to be known as "community service".
The type of labor and period of service shall be at the sole discretion of the court;
provided that a person receiving community service shall be immune from any civil
liability other than gross negligence arising out of the community service, and a person
who performs community service pursuant to court order or a criminal diversion
program shall not be entitled to wages, shall not be considered an employee and shall
not be entitled to workers' compensation, unemployment benefits or any other benefits
otherwise provided by law. As used in this subsection, "community service" means labor
that benefits the public at large or a public, charitable or educational entity or institution;

    E. make a contribution of not less than ten dollars ($10.00) and not more than one
hundred dollars ($100), to be paid in monthly installments of not less than five dollars
($5.00), to a local crime stopper program, a local domestic violence prevention or
treatment program or a local drug abuse resistance education program that operates in
the territorial jurisdiction of the court; and

   F. satisfy any other conditions reasonably related to the defendant's rehabilitation.

History: 1953 Comp., § 40A-29-18, enacted by Laws 1963, ch. 303, § 29-18; and
recompiled as 1953 Comp., § 40A-29-42, by Laws 1977, ch. 216, § 16; 1977, ch. 217, §
1; 1981, ch. 285, § 2; 1983, ch. 159, § 1; 1984, ch. 106, § 3; 1985, ch. 23, § 15; 1985,
ch. 75, § 2; 1987, ch. 139, § 2; 1988, ch. 62, § 1; 1997, ch. 215, § 1; 2004, ch. 38, § 1;
2007, ch. 101, § 1.

                                      ANNOTATIONS

Cross references. — For Crime Victims Reparation Act, see 31-22-1 NMSA 1978.

The 2007 amendment, effective June 15, 2007, added local domestic violence
prevention or treatment programs to the list of optional contributions the court may
require a defendant to make as a condition of a deferred or suspended sentence.

The 2004 amendment, effective July 1, 2004, amended the first paragraph to change
one thousand twenty dollars ($1,020) to one thousand eight hundred dollars ($1,800),
fifteen dollars ($15.00) to twenty-five dollars ($25.00), eighty-five dollars ($85.00) to one
hundred fifty dollars ($150), delete "or the local supervisor of the responsible agency on
the basis of changed financial circumstances, as may be required" and insert in its
place: "based upon the financial circumstances of the defendant. The defendant's
payment of the supervised probation costs shall not be waived unless the court holds an
evidentiary hearing and finds that the defendant is unable to pay the costs. If the court
waives the defendant's payment of the supervised probation costs and the defendant's
financial circumstances subsequently change so that the defendant is able to pay the
costs, the appropriate district supervisor of the adult probation and parole division shall
advise the court and the court shall hold an evidentiary hearing to determine whether
the waiver should be rescinded. The court may also require the defendant to:" and
amended Subsection E to delete "If there is no program in that area, the contribution
shall be made to the crime stoppers commission".

The 1997 amendment, effective June 20, 1997, substituted "adult probation and parole
division" for "field services division" twice in the third sentence of the introductory
paragraph and in Subsection C, and substituted "crime stopper program or a local drug
abuse resistance education program that operates in the territorial jurisdiction of the
court" for "crime stopper program that operates in the territorial jurisdiction of the court
and is approved by the crime stoppers commission" at the end of the first sentence in
Subsection E.

Legislative intent. — Legislature clearly intended in Section 31-20-5 NMSA 1978 to
give the sentencing judge authority to withhold the imposition of probation upon
suspending a sentence. Probation was not "automatic" where defendant's sentence was
suspended and this is further buttressed by the permissive language of this section.
State v. Soria, 1971-NMCA-042, 82 N.M. 509, 484 P.2d 351.

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.

Difference between suspension and deferral is that suspension involves a sentence
imposed while deferral does not. With suspension, the sentence having been imposed,
the court cannot later alter the sentence upwards. With deferral, no sentence having
been imposed, the court may give any sentence it could originally have given. State v.
Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653
P.2d 878.

General purposes of probation are education and rehabilitation, without the
requirement of serving the suspended period of incarceration. Probation is not meant to
be painless. State v. Donaldson, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258, cert.
denied, 100 N.M. 53, 665 P.2d 809.

Policy for probation. — In placing a criminal under strict conditions of probation and
under probation supervision, the policy of the State of New Mexico and the obligation of
the courts of New Mexico are to place guarded trust in the probationer to consciously
conduct himself in a manner to prove he can remain free from criminal activity. State v.
Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
Supervised probation authorized. — A New Mexico district court has statutory
authority to place a convicted defendant on supervised probation. State v. Baca, 2004-
NMCA-049, 135 N.M. 490, 90 P.3d 509.

Deferred or suspended sentence always entails mandatory probation with
conditions attached. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.

Section 31-20-13 A NMSA 1978 expressly incorporates probation statutes that
apply to a person serving a deferred sentence. State v. Leslie, 2004-NMCA-106, 136
N.M. 244, 96 P.3d 805.

Standards for assessing conditions of probation. — The trial court, at the time of
sentencing, is allowed to consider a wide range of options to assure defendant's
rehabilitation, and the conditions of probation will not be set aside unless they: (1) have
no reasonable relation to the offense for which the defendant was convicted; (2) relate
to activity which is not itself criminal in nature; and (3) require or forbid conduct which is
not reasonably related to deterring future criminality. State v. Taylor, 1986-NMCA-011,
104 N.M. 88, 717 P.2d 64, cert. denied, 104 N.M. 237, 719 P.2d 815.

Requiring the defendant to execute promissory notes to the victims of his fraud and
embezzlement was reasonably related to his rehabilitation and was a proper condition
of his probation. State v. Jensen, 1998-NMCA-034, 124 N.M. 726, 955 P.2d 195.

Guidelines for review of imposition of probation. — A trial court has broad discretion
in imposing probation upon a convicted defendant, and the court's discretion will not be
set aside on review unless the terms and conditions of probation: (1) have no
reasonable relationship to the offense for which defendant was convicted; (2) relate to
activity which is not itself criminal in nature; and (3) require or forbid conduct which is
not reasonably related to deterring future criminality. State v. Donaldson, 1983-NMCA-
064, 100 N.M. 111, 666 P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.

Probation is a discretionary act of the sentencing court. — New Mexico law places
squarely within the purview of the district court the authority to order a defendant to
satisfy any other conditions reasonably related to rehabilitation, and such order is
reviewed on appeal only for an abuse of discretion. State v. Green, 2015-NMCA-007,
cert. denied, 2014-NMCERT-012.

Abuse of discretion. — Under the abuse of discretion standard of appellate review,
conditions of probation will not be set aside unless they have no reasonable relationship
to the offense for which the defendant was convicted, relate to activity which is not itself
criminal in nature, and require or forbid conduct which is not reasonably related to
deferring future criminality. State v. Green, 2015-NMCA-007, cert. denied, 2014-
NMCERT-012.

District court order may incorporate conditions of probation. — Where a district
court’s order generally states that a defendant must comply with reasonable conditions
specified by the probation authorities, such language is sufficient to incorporate specific
terms and conditions of probation set by the probation office. State v. Green, 2015-
NMCA-007, cert. denied, 2014-NMCERT-012.

Sex offender behavior contract as a condition of probation. — Where defendant
was convicted of kidnapping, an element of which is that the victim be held for service
against the victim’s will, and where that holding for service can include holding a victim
for sexual purposes, and where defendant’s conviction involved criminal sexual contact
with the victim, the district court did not abuse its discretion in ruling that the
requirement that defendant comply with a sex offender behavior contract was
reasonably related to defendant’s current conviction. State v. Green, 2015-NMCA-007,
cert. denied, 2014-NMCERT-012.

Maximum period of probation for misdemeanors. — The maximum period of
probation that may be assessed in misdemeanor or petty misdemeanor cases is the
maximum allowable period of incarceration for that crime, irrespective of whether a
defendant is sentenced in district court or in a lower tribunal. State v. Candelaria, 1991-
NMCA-107, 113 N.M. 288, 825 P.2d 221.

No power to defer until conviction. — The court has no power or authority to defer a
sentence and impose obligations of probation upon a person charged with a crime, until
that person is convicted of the crime. State v. Apodaca, 1969-NMCA-020, 80 N.M. 155,
452 P.2d 489.

Express adjudication not necessary. — An express adjudication of conviction, or
finding of guilt, is not necessary if it is apparent from other matters in the record that the
court made a judicial determination of conviction or guilt. State v. Apodaca, 1969-
NMCA-020, 80 N.M. 155, 452 P.2d 489.

Court may suspend defendant's 18-month term, impose five-year probation. —
The trial court's judgment in suspending part of defendant's term of incarceration and
imposing a five-year term of supervised probation was upheld by this section, even
though defendant had been convicted of a fourth-degree felony with a basic term of
incarceration of 18 months. State v. Encinias, 1986-NMCA-049, 104 N.M. 740, 726 P.2d
1174, cert. denied, 104 N.M. 632, 725 P.2d 832.

Trial court may impose conditions of probation authorized by law; conditions of
probation unauthorized by law are void. State v. Ayala, 1981-NMCA-008, 95 N.M. 464,
623 P.2d 584.

Provision for costs controls over 31-12-6 NMSA 1978. — The legislature having
made a specific provision for costs as a condition of probation in Subsection A that
specific provision controls over the general provision of 31-12-6 NMSA 1978. State v.
Ayala, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.
Assessment of costs against defendant upon deferred sentence permitted. — The
authorization in 31-12-6 NMSA 1978 that cost may be adjudged against the defendant,
based on a conviction, permits assessment of costs against a defendant whose
sentence is deferred. State v. Ayala, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.

Defendant cannot challenge amount or method of paying costs when objections
initially waived. — Having requested the court's exercise of discretion, and having
waived all objections to an assessment of costs in lieu of a fine, the defendant may not
later challenge either the amount or method of payment ordered. State v. Padilla, 1982-
NMCA-100, 98 N.M. 349, 648 P.2d 807, cert. denied, 98 N.M. 336, 648 P.2d 794.

This section does not authorize jury and bailiff costs in prosecuting a defendant as
a condition of probation. State v. Ayala, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.

Jury and bailiff costs are part of expense of maintaining system of courts and the
administration of justice and may not be assessed against a defendant if they were
assessed independently of any condition of probation. State v. Ayala, 1981-NMCA-008,
95 N.M. 464, 623 P.2d 584.

Required contribution to sheriff's department unauthorized. — A probation
condition requiring the defendant to contribute $500 to a county sheriff's department
was unauthorized and therefore void. On remand, the trial court had to reconsider
imposition of a fine not to exceed $500. State v. Dominguez, 1993-NMCA-042, 115
N.M. 445, 853 P.2d 147, cert. denied, 115 N.M. 409, 852 P.2d 682.

Restitution, ordered as a condition of probation, must be reasonably related to a
proper rehabilitative purpose. — Where defendant was ordered as part of her
sentence, following a guilty plea to the offense of forgery, to pay restitution for the costs
of her extradition from New York, the restitution order could not have been authorized
by the district court pursuant to this section because the order to pay extradition costs
was not reasonably related to a proper rehabilitative purpose. State v. George, 2020-
NMCA-039.

Warrantless search condition is fairly and reasonably placed in probation order to
facilitate the probation officer’s important supervisory and protective duties to help
assure that the probationer assumes his responsibility – a responsibility both to the
probationer himself and to society to stay on a path of rehabilitation. State v. Baca,
2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

Warrantless probation searches cannot be without a proper showing of an
adequate degree of likelihood of criminal activity. State v. Baca, 2004-NMCA-049, 135
N.M. 490, 90 P.3d 509.

And such searches can and must be supported by reasonable suspicion as
defined in New Mexico law to be an awareness of specific articulable facts, judged
objectively, that would lead a reasonable person to believe criminal activity occurred or
was occurring. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

Exigent circumstances are not required in connection with warrantless probation
search supported by reasonable suspicion. State v. Baca, 2004-NMCA-049, 135 N.M.
490, 90 P.3d 509.

For rehabilitation and community safety purposes, probation officers have the right to
conduct warrantless searches without the added requirement of exigent circumstances.
State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

Condition of probation requiring prior narcotics offender to submit to search is
reasonably related the probationer's prior criminal conduct and is aimed at deterring or
discovering subsequent criminal offenses. State v. Gardner, 1980-NMCA-122, 95 N.M.
171, 619 P.2d 847.

Statutory handling for probation violation. — Because the terms of probation are
defined by the probation statutes, a probation violation must be handled as prescribed
in Section 31-21-15 NMSA 1978. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96
P.3d 805.

When jurisdiction to vacate and revoke suspension exists. — The power of a
district court to vacate and revoke an order of suspension exists only when some one or
more of such terms or conditions specified in the order of suspension have been
breached. State v. Baros, 1968-NMSC-001, 78 N.M. 623, 435 P.2d 1005.

Proof of violation needed. — The court has the power to revoke the suspension of
sentence and to thereupon invoke the same, upon proof being made of the violation of
the conditions of probation. State v. Baca, 1969-NMCA-076, 80 N.M. 527, 458 P.2d
602.

Subsequent criminal conviction not necessary. — A conviction of a subsequent
criminal offense is not necessary to the revocation of suspension and the invocation of a
prior suspended sentence. State v. Baca, 1969-NMCA-076, 80 N.M. 527, 458 P.2d 602.

Degree of proof. — The degree of proof required to support a finding of a violation of
probation is met when the evidence establishes a violation of the conditions of probation
with such reasonable certainty as to satisfy the conscience of the court of the truth of
the violation. It does not have to be established beyond a reasonable doubt. State v.
Baca, 1969-NMCA-076, 80 N.M. 527, 458 P.2d 602.

Violation of probation must be established with reasonable certainty so as to
satisfy the conscience of the court as to the truth of the violation; however, a violation of
probation need not be established beyond a reasonable doubt. State v. Martinez, 1972-
NMCA-135, 84 N.M. 295, 502 P.2d 320.
Sufficiency of terms. — Where the trial judge imposed as a condition of probation that
defendant report to the probation office as directed by the probation office and ordered
that the conditions and terms of probation are made conditions and terms of the
deferred sentence, the fact that the times when defendant was to report to the probation
office, and that the terms of the probation office were not spelled out in the deferred
sentence, did not show that such times and terms were not conditions of probation
imposed by the trial court and the conditions of probation were sufficiently stated. State
v. Martinez, 1972-NMCA-135, 84 N.M. 295, 502 P.2d 320.

Where no amendment of judgment or sentence allowed. — Where district court,
when it sentenced defendant to six months in county jail and suspended the balance of
the sentence without probation, issued a valid original judgment and sentence,
accordingly could not amend that judgment and sentence to add the conditions of
probation, since a valid sentence may not be amended by increasing the penalty. State
v. Soria, 1971-NMCA-042, 82 N.M. 509, 484 P.2d 351.

Community service may be condition of probation for gambling. — No one would
dispute that criminal activity is anti-social by nature; ergo, community service as a
condition of probation is not unrelated to the offense of gambling. State v. Padilla, 1982-
NMCA-100, 98 N.M. 349, 648 P.2d 807, cert. denied, 98 N.M. 336, 648 P.2d 794.

Jury trial limited to identity question. — In proceedings to revoke a suspended
sentence, the right to a jury trial is limited to the question of identity. State v. Raines,
1967-NMCA-026, 78 N.M. 579, 434 P.2d 698.

Application of increased probation costs limited. — Increased probation costs, i.e.,
any amount in excess of $200 annually, can only constitutionally be applied to offenses
which occur on or after June 19, 1981, at least to the extent the 1981 amendment to this
section is relied upon as authority for the increased probation costs. 1981 Op. Att'y Gen.
No. 81-15.

Increased probation terms limited. — The increased probation term of five years
authorized by the 1981 amendment, i.e., any term in excess of four years for a third
degree felony or any term in excess of two years for a fourth degree felony, can only
constitutionally be applied to a third or fourth degree felony which occurs on or after
June 19, 1981. 1981 Op. Att'y Gen. No. 81-15.

Parole costs limited. — Parole costs authorized by Section 31-21-10 NMSA 1978 can
only constitutionally be applied to prisoners who are placed on parole for crimes
committed on or after June 19, 1981, at least to the extent the 1981 amendment to this
section is relied on as authority for parole costs. 1981 Op. Att'y Gen. No. 81-15.

Limit on charitable contributions required of defendant. — Absent a clear
legislative determination to the contrary, state judges do not have the power to require a
defendant to pay money to a charitable organization unaggrieved by the defendant's
offense. 1987 Op. Att'y Gen. No. 87-09.
"Drug abuse resistance education program" refers to programs affiliated with the
D.A.R.E. organization. — If a metropolitan, magistrate or district court chooses to defer
or suspend a criminal sentence, New Mexico law requires that the court impose certain
conditions to ensure that the defendant will observe the laws of the United States and
the various states and the ordinances of any municipality, and among these conditions,
the court may require a defendant to make a monetary contribution to one of three listed
programs, a local crime stopper program, a local domestic violence prevention or
treatment program or a local drug abuse resistance education program. The most
common use of "drug abuse resistance education" generally is in relation to an
organization which uses the program acronym D.A.R.E. (drug abuse resistance
education), which is a nationally known 501(c)(3) organization that brings local law
enforcement into schools to aid in educating students about drug use and its dangers,
and the legislative history of 31-20-6(E) NMSA 1978, supports the position that "a local
drug abuse resistance education program" should be interpreted narrowly, and that it is
only to be applied to programs under the D.A.R.E. organization and not to other
alternative sentencing programs that may provide services unrelated to drug education.
Pecos Valley Teen Court being considered a "local drug abuse resistance education
program" under NMSA 1978, Section 31-20-6(E) (1/25/21), Att'y Gen. Adv. Ltr. 2021-01.

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

For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev.
271 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 907 et
seq.

Validity of probation on condition of leaving state or locality, 70 A.L.R. 100.

Propriety of requirement, as condition of probation, that defendant refrain from use of
intoxicants, 19 A.L.R.4th 1251.

Propriety, under 18 U.S.C.S. § 3651, of district court's requiring contribution of money or
services to charity or to community service as condition of suspending sentence and
granting probation, 66 A.L.R. Fed. 825.

Propriety, in criminal case, of Federal District Court order restricting defendant's right to
re-enter or stay in United States, 94 A.L.R. Fed. 619.