2020 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 18 - Animals
Section 30-18-1 - Cruelty to animals; extreme cruelty to animals; penalties; exceptions.
A. As used in this section, "animal" does not include insects or reptiles.
B. Cruelty to animals consists of a person:
(1) negligently mistreating, injuring, killing without lawful justification or tormenting an animal; or
(2) abandoning or failing to provide necessary sustenance to an animal under that person's custody or control.
C. As used in Subsection B of this section, "lawful justification" means:
(1) humanely destroying a sick or injured animal; or
(2) protecting a person or animal from death or injury due to an attack by another animal.
D. Whoever commits cruelty to animals is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. Upon a fourth or subsequent conviction for committing cruelty to animals, the offender is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
E. Extreme cruelty to animals consists of a person:
(1) intentionally or maliciously torturing, mutilating, injuring or poisoning an animal; or
(2) maliciously killing an animal.
F. Whoever commits extreme cruelty to animals is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
G. The court may order a person convicted for committing cruelty to animals to participate in an animal cruelty prevention program or an animal cruelty education program. The court may also order a person convicted for committing cruelty to animals or extreme cruelty to animals to obtain psychological counseling for treatment of a mental health disorder if, in the court's judgment, the mental health disorder contributed to the commission of the criminal offense. The offender shall bear the expense of participating in an animal cruelty prevention program, animal cruelty education program or psychological counseling ordered by the court.
H. If a child is adjudicated of cruelty to animals, the court shall order an assessment and any necessary psychological counseling or treatment of the child.
I. The provisions of this section do not apply to:
(1) fishing, hunting, falconry, taking and trapping, as provided in Chapter 17 NMSA 1978;
(2) the practice of veterinary medicine, as provided in Chapter 61, Article 14 NMSA 1978;
(3) rodent or pest control, as provided in Chapter 77, Article 15 NMSA 1978;
(4) the treatment of livestock and other animals used on farms and ranches for the production of food, fiber or other agricultural products, when the treatment is in accordance with commonly accepted agricultural animal husbandry practices;
(5) the use of commonly accepted Mexican and American rodeo practices, unless otherwise prohibited by law;
(6) research facilities licensed pursuant to the provisions of 7 U.S.C. Section 2136, except when knowingly operating outside provisions, governing the treatment of animals, of a research or maintenance protocol approved by the institutional animal care and use committee of the facility; or
(7) other similar activities not otherwise prohibited by law.
J. If there is a dispute as to what constitutes commonly accepted agricultural animal husbandry practices or commonly accepted rodeo practices, the New Mexico livestock board shall hold a hearing to determine if the practice in question is a commonly accepted agricultural animal husbandry practice or commonly accepted rodeo practice.
History: 1978 Comp., § 30-18-1, enacted by Laws 1999, ch. 107, § 1; 2001, ch. 81, § 1; 2007, ch. 6, § 1.
ANNOTATIONSCross references. — For dog fighting, see 30-18-9 NMSA 1978.
For authority of livestock officers to arrest persons for violations of this article, see 77-2-9 NMSA 1978.
Repeals and reenactments. — Laws 1999, ch. 107, § 1 repealed 30-18-1 NMSA 1978, as enacted by Laws 1963, ch. 303, § 18-1, and enacted a new section, effective July 1, 1999.
The 2007 amendment, effective June 15, 2007, deleted former Subsection K, which provided that this section shall not be interpreted to prohibit cockfighting in New Mexico.
The 2001 amendment, effective June 15, 2001, inserted the Subsection A designation and renumbered the remaining Subsections accordingly and made related changes; and rewrote Paragraph I(6) which formerly read "research facilities intermediate handlers, carriers and exhibitors licensed pursuant to the provisions of 7 U.S.C. Section 2136; or".
General criminal negligence. — Evidence that a defendant acted intentionally, purposely, or deliberately, in harming an animal, is sufficient to establish that the defendant acted with "willful disregard" for that animal's safety for purposes of conviction under the animal cruelty statute. State v. Stewart, 2005-NMCA-126, 138 N.M. 500, 122 P.3d 1269
Article II, Section 5 of the New Mexico Constitution does not render the statutory ban on cockfighting unconstitutional. N.M. Gamefowl Assn., Inc. v. State of N.M. ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
No standing based on economic injury. — Where plaintiffs alleged purely economic interests that would be harmed by a ban on cockfighting, including reduced gross receipts, loss of employees and a threat to the viability of their businesses, plaintiffs had no standing to challenge the constitutionality of 30-18-1 NMSA 1978 because the constitution does not protect plaintiffs' right to engage in particular business activities so as to avoid economic loss. N.M. Gamefowl Assn., Inc. v. State of N.M. ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
No standing based on spectator interest in cockfighting. — Where plaintiffs alleged past attendance at cockfights and that the ban on cockfighting would prevent them from future attendance at events plaintiffs considered to be an aspect of cultural expression, plaintiffs had no standing to challenge the constitutionality of 30-18-1 NMSA 1978 because there is no credible threat of prosecution related to mere attendance at cockfighting. N.M. Gamefowl Assn., Inc. v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
No third party standing. — Where plaintiffs alleged past attendance at cockfights and that the ban on cockfighting would prevent them from future attendance at events plaintiffs considered to be an aspect of cultural expression and alleged that persons who intend to participate in cockfighting would be injured, but provided no reason why a person who has violated 30-18-1 NMSA 1978 cannot challenge the constitutionality of the statute, plaintiffs had no third-party standing to challenge the constitutionality of Section 30-18-1 NMSA 1978. N.M. Gamefowl Assn., Inc. v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Associational standing. — Where members of the plaintiff association owned and equipped cocks for the purpose of fighting; the purpose of the association was to keep cockfighting legal; and the association's remedy to have the ban on cockfighting declared unconstitutional addressed the injury claimed by the entire membership of the association, the association had associational standing to challenge the constitutionality of 30-18-1 NMSA 1978. N.M. Gamefowl Assn., Inc. v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758, 215 P.3d 67, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Sufficient evidence of cruelty to animals. — Where defendant was charged with cruelty to animals, and where the state established that defendant kept numerous dogs chained outdoors, that some of the dogs were not given sufficient food, water or shelter, some were emaciated to the degree that their ribs and hip bones were visibly protruding, some were infested with ticks, some had visible injuries and open sores, and some had wounds and scarring on their faces, which was consistent with staged dogfighting, there was sufficient evidence to support, beyond a reasonable doubt, that defendant intentionally mistreated, injured or tormented or abandoned or failed to provide necessary sustenance to numerous dogs. State v. Duttle, 2017-NMCA-001, cert. denied.
Sufficient evidence of extreme cruelty to animals. — Where defendant was charged with extreme cruelty to animals, evidence that of the eight dogs that defendant was convicted of subjecting to extreme cruelty, all eight were without clean water, seven were underweight, one was emaciated, five were severely emaciated, six had obvious scarring consistent with staged dogfighting, six had open wounds and untreated sores, one had a severe eye injury, two had advanced heart worm disease, one was infested with ticks, three had large painful tumors or masses, two exhibited obvious signs of serious illness, and four had teeth that were cut or filed to the gum line, making it extremely painful to eat or drink, was sufficient to support, beyond a reasonable doubt that defendant intentionally or maliciously tortured, mutilated or injured her dogs. State v. Duttle, 2017-NMCA-001, cert. denied.
Meaning of "torture" and "torment". — The words "torture" and "torment" are commonly defined to include every act, omission or neglect whereby unjustified physical pain and suffering or death is caused or permitted. State v. Buford, 1958-NMSC-129, 65 N.M. 51, 331 P.2d 1110 (decided under prior law).
Animals included. — The language of former 40-4-3, 1953 Comp., seemed to apply only to brute creatures and work animals, and the history showed that it was passed in relation to other laws governing livestock. State v. Buford, 1958-NMSC-129, 65 N.M. 51, 331 P.2d 1110 (decided under prior law).
Section inapplicable to wild animals. — This section applies only to cruelty to domesticated animals and wild animals previously reduced to captivity, and under the "general-specific" rule of statutory construction, treatment of wild animals is presumed to be governed by the comprehensive hunting and fishing laws contained in Chapter 17, which therefore preempt this section as to such animals. State v. Cleve, 1999-NMSC-017, 127 N.M. 240, 980 P.2d 23.
The game and fish laws in Chapter 17 are expressly intended to cover free-roaming, wild game elk; the animal statutes in Article 18 of Chapter 30 are not. State v. Parson, 2005-NMCA-083, 137 N.M. 773, 115 P.3d 236.
Cockfighting. — Cruelty to animal statute (former 40-4-3, 1953 Comp.) was not passed with the intention of prohibiting such sports as cockfighting. State v. Buford, 1958-NMSC-129, 65 N.M. 51, 331 P.2d 1110 (decided under prior law).
Disputes over commonly accepted practices. — The district court in a criminal case in which the defendant is charged with animal cruelty is the proper forum to determine if a dispute exists regarding whether the defendant's conduct is a commonly accepted agricultural animal husbandry practice and to define the parameters of the dispute in order to ensure that the issues are fairly referred to the livestock board. If the district court determines that there is a dispute regarding whether the defendant's conduct is a commonly accepted agricultural animal husbandry practice, the district court must order the livestock board to hold a Section 30-18-1 J NMSA 1978 hearing. State ex rel. Collier v. N.M. Livestock Bd., 2014-NMCA-010, cert. denied, 2013-NMCERT-011.
Where defendant was charged with extreme animal cruelty that arose from the death of a colt as a result of defendant's use of questionable training techniques; defendant never filed a formal motion in the criminal case requesting a Section 30-18-1 J NMSA 1978 hearing before the livestock board to determine whether defendant's training techniques were commonly accepted agricultural animal husbandry practices; the livestock board denied defendant's request that it hold a hearing; and defendant filed a civil action asking the district court to order the livestock board to hold a hearing, defendant's civil action did not state a proper claim for relief because the district court presiding in defendant's pending criminal case was the proper forum to determine if a dispute existed regarding whether defendant's conduct was a commonly accepted agricultural animal husbandry practice and to order the livestock board to hold a Section 30-18-1 J NMSA 1978 hearing. State ex rel. Collier v. N.M. Livestock Bd., 2014-NMCA-010, cert. denied, 2013-NMCERT-011.
Animals included. — No legislative intent appears to restrict the sanction of this section to any particular class of animals. 1964 Op. Att'y Gen. No. 64-86.
Cruel sport. — Placing of a live coon in a shallow barrel which is swiveled to rotate around a pole when pushed, with the object of finding which hound dog can pull the coon out of the barrel in the shortest time, constitutes cruelty to animals as defined in this section. 1964 Op. Att'y Gen. No. 64-86.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Animals § 31 et seq.
Applicability of state animal cruelty statute to medical or scientific experimentation employing animals, 42 A.L.R.4th 860.
What constitutes offense of cruelty to animals - modern cases, 6 A.L.R.5th 733.
Damages for killing or injuring dog, 61 A.L.R.5th 635.
Construction and application of Horse Protection Act of 1970 (15 USCS § 1821 et seq.), 131 A.L.R. Fed. 363.
3A C.J.S. Animals §§ 99 to 116.
