Battery against a household member (often called “domestic violence battery”) is treated more harshly than a regular battery in New Mexico, and the stakes rise quickly when aggravated battery, great bodily harm, or a deadly weapon are alleged. These cases also trigger collateral gun restrictions and often run in parallel with civil orders of protection. In this blog I will try to lay out the different sorts of these charges and give an introductory view of how they are typically handled in New Mexico.

Battery vs. Battery Against a Household Member

Under New Mexico law, battery is the unlawful, intentional touching or application of force to another person, done in a rude, insolent, or angry manner. It is a petty misdemeanor, punishable by up to 6 months in jail and a fine.

Battery against a household member (Battery HHM) uses the same core conduct but adds the household-relationship element and carries higher punishment.

• Elements of Battery HHM (NMSA 30‑3‑15):

  • Intentional touching or application of force

  • In a rude, insolent, or angry manner

  • Against a “household member” (current/former spouse, co-parent, certain in-laws, dating/intimate partner, etc.)​

  • The act is “unlawful” (not justified, e.g., self-defense)

• Penalty:

  • Battery HHM is a misdemeanor (up to 364 days in jail, fine up to $1,000).​

  • Mandatory domestic violence offender treatment or intervention program; probation can be extended up to 2 years even though jail exposure is limited to 364 days.​

Crucially, battery and battery against a household member doesn’t require an injury or a powerful strike! Even small and petty pokes, trips, kicks, smacks, slaps, and other hits can quality if they are rude, angry insolent and without legal justification!

Aggravated Battery HHM vs. Battery HHM with GBH/DW

New Mexico distinguishes between misdemeanor and felony levels of aggravated battery against a household member.

• Aggravated Battery HHM – Misdemeanor (NMSA 30‑3‑16(B)):

  • Unlawful touching or application of force

  • With intent to injure

  • Causes injury “not likely to cause death or great bodily harm,” but causes painful temporary disfigurement or temporary loss/impairment of a bodily function.

  • Punished as a misdemeanor, again with required domestic-violence treatment and up to two years of probation (and up to 364 days incarceration).​

• Aggravated Battery HHM – Felony (NMSA 30‑3‑16(C)):

  • Same core elements plus any of the following:

    • Inflicting great bodily harm

    • Use of a deadly weapon

    • Committed by strangulation or suffocation

    • Any manner whereby great bodily harm or death can be inflicted.​

  • Classified as a third-degree felony.​

Maximum Possible Penalties (New Mexico)

Below is a simplified view of maximum statutory exposure; actual sentences depend on criminal history and other factors.

“Great bodily harm” means an injury creating a high probability of death, causing serious disfigurement, or resulting in permanent or protracted loss or impairment of a bodily function.​

Firearm and Gun-Rights Consequences

Domestic-violence related convictions and protective orders carry serious gun consequences under both state and federal law.

• New Mexico law (NMSA 30‑7‑16) and standard Order of Protection forms:

  • A person subject to an order of protection is warned it is unlawful to possess or purchase firearms or ammunition while the order is in effect, and the court can order surrender of firearms when it finds a “credible threat.”​

• Federal law (18 U.S.C. 922(g)(8) & (9)):

  • Prohibits possession of firearms by:

    • Persons subject to qualifying DV protective orders, and

    • Persons convicted of a qualifying “misdemeanor crime of domestic violence.”

New Mexico’s standard order-of-protection forms explicitly warn that violation of these gun provisions can be prosecuted as a federal felony with up to 10 years in prison and a large fine. Even a single misdemeanor Battery HHM conviction can therefore permanently bar firearm possession under federal law.​

Orders of Protection and “Parallel” Cases

In many domestic-violence situations, the alleged victim also files for a civil Order of Protection under the Family Violence Protection Act. That creates a second, parallel case in district court that can:​

• Restrict contact, residence, and parenting time

• Remove the respondent from the home

• Prohibit firearm possession and require surrender of existing guns within a set period, with proof of delivery filed in court.​

Violations of an Order of Protection are themselves criminal offenses and can lead to additional charges and incarceration, even while the underlying battery case is pending. Orders can last for months or longer, and the findings and testimony in that civil matter can affect the criminal case (and vice versa), so a coordinated defense strategy is critical.​

Mandatory Arrest and Domestic Violence Policy in New Mexico

New Mexico has effectively mandatory-arrest style procedures for domestic-violence incidents:

• Rules for pretrial release by designees specifically exclude battery and aggravated battery against a household member from automatic release, recognizing their seriousness and the need for judicial review.​

• Law enforcement officers are directed in the civil protection forms to “use any lawful means to enforce this order,” and restrained parties are warned that violations can result in immediate arrest.​

Practically, when officers respond to a domestic dispute and have probable cause to believe a Battery HHM or Aggravated Battery HHM occurred, they will almost always arrest someone on the scene. Officers often err on the side of arrest to avoid accusations of failing to protect an alleged victim.

Role of the District Attorney and Prosecution Policies

In misdemeanor domestic-violence cases, including Battery HHM and misdemeanor-level Aggravated Battery HHM, the district attorney’s office almost always takes over the case and pursues prosecution even if the alleged victim later wants to “drop” the charges.

• Many DA offices in New Mexico have strong written or unwritten policies:

  • To file charges where there is evidence of domestic violence

  • To resist dismissals based solely on a recanting victim

  • To request protective conditions of release and compliance with DV treatment programs

That means defendants cannot assume the case will “go away” if the reporting party changes their mind. The State prosecutes “The State of New Mexico v. Defendant,” not “Victim v. Defendant.” This is especially true once the allegations are charged as a felony!

Defenses, Strategies, and Paths to a Good Outcome

These cases are defensible. Common issues an experienced defense lawyer can explore include:

• Factual defenses:

  • Self-defense or defense of others (e.g., the client responded reasonably to being attacked)

  • Mutual combat or primary aggressor problems

  • Credibility issues, inconsistent statements, or intoxication affecting perception

• Legal defenses:

  • Challenging “unlawfulness” as an element; if there is evidence of justification, the jury must be instructed that the State bears the burden to prove unlawfulness beyond a reasonable doubt.

  • Contesting whether the complaining witness qualifies as a “household member” under the statute.

  • Challenging the level of injury (arguing simple battery rather than aggravated or disputing “great bodily harm”).

• Procedural strategies:

  • Suppression of statements or evidence from unlawful searches or custodial interrogations

  • Ensuring that any parallel Order-of-Protection hearing does not unfairly prejudice the criminal case.

For clients with little or no prior record, there can be additional paths to minimize long-term damage:

• Negotiated pleas to non–domestic-violence offenses (to avoid federal DV firearm disability), where justified by the evidence

• Deferred or suspended sentences that, if successfully completed, avoid jail and sometimes minimize the long-term impact on employment and reputation

• Compliance with counseling and treatment early in the case, which can influence negotiations and sentencing.

Because each situation is different, anyone charged with Battery HHM or Aggravated Battery HHM in New Mexico should speak with a defense attorney as early as possible. Early intervention can protect rights, manage the risks around firearms and protective orders, and maximize the chances of resolving the case without long-term damage to reputation, employment, and freedom.