2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 7 - Weapons and Explosives
Section 30-7-4 - Negligent use of a deadly weapon.

Universal Citation: NM Stat § 30-7-4 (2021)

A. Negligent use of a deadly weapon consists of:

(1) discharging a firearm into any building or vehicle or so as to knowingly endanger a person or his property;

(2) carrying a firearm while under the influence of an intoxicant or narcotic;

(3) endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner; or

(4) discharging a firearm within one hundred fifty yards of a dwelling or building, not including abandoned or vacated buildings on public lands during hunting seasons, without the permission of the owner or lessees thereof.

B. The provisions of Paragraphs (1), (3) and (4) of Subsection A of this section shall not apply to a peace officer or other public employee who is required or authorized by law to carry or use a firearm in the course of his employment and who carries, handles, uses or discharges a firearm while lawfully engaged in carrying out the duties of his office or employment.

C. The exceptions from criminal liability provided for in Subsection B of this section shall not preclude or affect civil liability for the same conduct.

Whoever commits negligent use of a deadly weapon is guilty of a petty misdemeanor.

History: 1953 Comp., § 40A-7-3, enacted by Laws 1963, ch. 303, § 7-3; 1977, ch. 266, § 1; 1979, ch. 79, § 1; 1993, ch. 139, § 1.


Cross references. — For authority of conservation officers to enforce these provisions under emergency circumstances, see 17-2-19 NMSA 1978.

The 1993 amendment, effective June 18, 1993, substituted "a dwelling or building, not including abandoned or vacated buildings on public lands during hunting seasons" for "an inhabited dwelling or building" in Subsection A(4) and inserted "of this section" in Subsection C.

Subsection A(2) is not unconstitutionally vague. A person of ordinary intelligence would understand what conduct is prohibited by the statute: having a firearm nearby, readily capable of being put into action or service, while under the influence of alcohol. The statute plainly does not require that the intoxicated person actually use or intend to use the firearm. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, cert. denied, 115. N.M. 228, 849 P.2d 371.

Constitutionality. — Possession of firearms by intoxicated persons presents a clear danger to the public. The state constitution does not support a right to engage in this type of behavior. Therefore, the defendant's conviction for negligent use of a deadly weapon did not violate his right to bear arms under the state constitution, since there was evidence that he was intoxicated, he pointed the gun at another person, and he appeared to be loading the gun. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, cert. denied, 115. N.M. 228, 849 P.2d 371.

"Negligent" defined. — "Negligent" means omitting to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; see State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

Criminal negligence is not negligence referred to in Subsection C (now Subsection A (3) of this section). State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693.

Evidence of frame of mind. — Evidence of conduct at and subsequent to commission of crime of unlawfully discharging a firearm in a settlement was competent to show frame of mind of defendant. State v. Bustillos, 1932-NMSC-004, 36 N.M. 30, 7 P.2d 296.

Instruction required in homicide case. — In homicide prosecution where one of defendant's theories was involuntary manslaughter, and record was replete with testimony that defendant was drunk while he rode around in automobile with deceased and witness holding and handling sawed-off shotgun, court's refusal to instruct the jury that negligent use of a weapon while under influence of an intoxicant was a petty misdemeanor left jury without a guide to determine whether this was a killing while in the commission of a misdemeanor, and was reversible error. State v. Durham, 1971-NMCA-168, 83 N.M. 350, 491 P.2d 1161.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Weapons and Firearms § 29.

Liability of private citizen or his employer for injury or damage to third person resulting from firing of shots at fleeing criminal, 29 A.L.R.4th 144.

Handgun manufacturer's or seller's liability for injuries caused to another by use of gun in committing crime, 44 A.L.R.4th 595.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

94 C.J.S. Weapons § 20.

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