2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 3 - Assault and Battery
Section 30-3-9.2 - Assault; battery; health care personnel.

A. As used in this section:

(1) "health facility" means a public or private hospital, outpatient facility, diagnostic and treatment center, rehabilitation center or infirmary. "Health facility" also includes those facilities that, by federal regulation, must be licensed by the state to obtain or maintain full or partial, permanent or temporary federal funding, but "health facility" does not include a skilled nursing facility, a nursing facility or other long-term residential care facility;

(2) "health care worker" means an employee of a health facility or a licensed emergency medical technician; and

(3) "in the lawful discharge of the health care worker's duties" means engaged in the performance of the duties of a health care worker.

B. Assault upon a health care worker consists of:

(1) an attempt to commit a battery upon the person of a health care worker who is in the lawful discharge of the health care worker's duties; or

(2) any unlawful act, threat or menacing conduct that causes a health care worker who is in the lawful discharge of the health care worker's duties to reasonably believe that the health care worker is in danger of receiving an immediate battery.

Whoever commits assault upon a health care worker is guilty of a misdemeanor.

C. Aggravated assault upon a health care worker consists of:

(1) unlawfully assaulting or striking at a health care worker with a weapon while the health care worker is in the lawful discharge of the health care worker's duties; or

(2) willfully and intentionally assaulting a health care worker who is in the lawful discharge of the health care worker's duties with intent to commit any felony.

Whoever commits aggravated assault upon a health care worker is guilty of a third degree felony.

D. Assault with intent to commit a violent felony upon a health care worker consists of assaulting a health care worker who is in the lawful discharge of the health care worker's duties with intent to kill the health care worker.

Whoever commits assault with intent to commit a violent felony upon a health care worker is guilty of a second degree felony.

E. Battery upon a health care worker is the unlawful, intentional touching or application of force to the person of a health care worker who is in the lawful discharge of the health care worker's duties, when done in a rude, insolent or angry manner.

Whoever commits battery upon a health care worker is guilty of a fourth degree felony.

F. Aggravated battery upon a health care worker consists of the unlawful touching or application of force to the person of a health care worker with intent to injure that health care worker while the health care worker is in the lawful discharge of the health care worker's duties.

Whoever commits aggravated battery upon a health care worker, inflicting an injury to the health care worker that is not likely to cause death or great bodily harm but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a fourth degree felony.

Whoever commits aggravated battery upon a health care worker, inflicting great bodily harm or does so with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted, is guilty of a third degree felony.

G. A person who assists or is assisted by one or more other persons to commit a battery upon a health care worker who is in the lawful discharge of the health care worker's duties is guilty of a fourth degree felony.

History: Laws 2006, ch. 27, § 1.

Effective dates. — Laws 2006, ch. 27 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 17, 2006, 90 days after adjournment of the legislature.

Not unconstitutionally vague. — Section 30-3-9.2 NMSA 1978 is not unconstitutionally vague. State v. Tsosie, 2011-NMCA-115, 150 N.M. 754, 266 P.3d 34, cert. denied, 2011-NMCERT-010.

The element of knowledge of the victim's identity as a health care worker is an essential element for the crime of battery upon a health care worker. State v. Valino, 2012-NMCA-105, 287 P.3d 372, cert. denied, 2012-NMCERT-009, 296 P.3d 1207.

Knowledge of the identity of the victim is an essential element. — Where defendant was charged with battery upon a health care worker for striking a security guard at a medical center, and the trial court instructed the jury on the elements of battery upon a health care worker, but omitted the requirement that defendant had knowledge that the victim was a health care worker, the failure to instruct the jury that a conviction for battery on a health care worker required the element of knowledge that the victim was a health care worker was fundamental error. State v. Valino, 2012-NMCA-105, 287 P.3d 372, cert. denied, 2012-NMCERT-009, 296 P.3d 1207.

Meaning of "health care worker". — A security guard who was employed by a medical center, who was not a medical professional, who was not employed for the purpose of providing medical care, who was not licensed in any medical field, and whose employment duties related to security, not medicine, was a "health care worker" under Section 30-3-9.2(A)(2) NMSA 1978. State v. Valino, 2012-NMCA-105, 287 P.3d 372, cert. denied, 2012-NMCERT-009, 296 P.3d 1207.

Battery committed while in protective custody due to intoxication. — The Detoxification Reform Act, Sections 43-2-1.1 NMSA 1978 et seq., does not preclude the criminal prosecution of a defendant for battery upon a health care worker merely because the defendant was in protective custody due to intoxication at the time of the offense. State v. Tsosie, 2011-NMCA-115, 150 N.M. 754, 266 P.3d 34, cert. denied, 2011-NMCERT-010.

Health facility. — Where the victim of defendant's battery was employed by a facility that was licensed as an adult residential health facility, provided protective custody to alcohol-impaired persons, and identified substance abuse issues based upon patients' medical history, vital signs, laboratory testing, and formal assessments and developed treatment plans based upon those observations, which included prescribing and dispensing of medications and behavioral therapy, the facility was a "health facility" and the victim qualified as a health care worker. State v. Tsosie, 2011-NMCA-115, 150 N.M. 754, 266 P.3d 34, cert. denied, 2011-NMCERT-010.

Sufficient evidence. — Where defendant was brought to a medical center for detoxification evaluation; the medical staff determined that defendant was not free to be released and requested security guards employed by the medical center to restrain defendant until defendant's parents arrived to pick defendant up; the security guards' job description included restraining persons brought in for detoxification evaluation; defendant tried to leave and the security guards restrained defendant; and defendant struck one of the security guards, there was sufficient evidence that the security guard was a health care worker lawfully performing the security guard's duties. State v. Valino, 2012-NMCA-105, 287 P.3d 372, cert. denied, 2012-NMCERT-009, 296 P.3d 1207.