2021 New Mexico Statutes
Chapter 32A - Children's Code
Article 2 - Delinquency
Section 32A-2-3 - Definitions.

As used in the Delinquency Act:

A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, not including a violation of Section 30-9-2 NMSA 1978, including the following offenses:

(1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code [Chapter 66, Articles 1 through 8 NMSA 1978]:

(a) driving while under the influence of intoxicating liquor or drugs;

(b) failure to stop in the event of an accident causing death, personal injury or damage to property;

(c) unlawful taking of a vehicle or motor vehicle;

(d) receiving or transferring of a stolen vehicle or motor vehicle;

(e) homicide by vehicle;

(f) injuring or tampering with a vehicle;

(g) altering or changing of an engine number or other vehicle identification numbers;

(h) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

(i) reckless driving;

(j) driving with a suspended or revoked license; or

(k) an offense punishable as a felony;

(2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations unit of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods;

(3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance;

(4) a violation of the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978];

(5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child;

(6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; or

(7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act [Chapter 40, Article 13 NMSA 1978];

B. "delinquent child" means a child who has committed a delinquent act;

C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender;

D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

E. "felony" means an act that would be a felony if committed by an adult;

F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978;

H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section;

I. "supervised release" means the release of a juvenile, whose term of commitment has not expired, from a facility for the care and rehabilitation of adjudicated delinquent children, with specified conditions to protect public safety and promote successful transition and reintegration into the community. A juvenile on supervised release is subject to monitoring by the department until the term of commitment has expired and may be returned to custody for violating conditions of release; and

J. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:

(1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:

(a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

(b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

(c) kidnapping, as provided in Section 30-4-1 NMSA 1978;

(d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

(e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

(f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

(g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

(i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(j) robbery, as provided in Section 30-16-2 NMSA 1978;

(k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

(l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

(m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

(2) fourteen to eighteen years of age at the time of the offense, who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees is not considered a prior adjudication for the purposes of this paragraph; or

(3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978.

History: 1978 Comp., § 32A-2-3, enacted by Laws 1993, ch. 77, § 32; 1995, ch. 204, § 2; 1995, ch. 205, § 2; 1995, ch. 206, § 10; 1996, ch. 85, § 2; 2003, ch. 225, § 3; 2005, ch. 189, § 11; 2009, ch. 239, § 10; 2019, ch. 101, § 1.

The 2019 amendment, effective June 14, 2019, excluded prostitution from the definition of "delinquent act" as used in the Delinquency Act; and in Subsection A, added "not including a violation of Section 30-9-2 NMSA 1978".

The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, at the beginning of the sentence, deleted "an offense" and added "any of the following offenses"; and added Subsection I

The 2005 amendment, effective June 17, 2005, deleted former Subsection A(3), which provided that a delinquent act included a felony violations of Section 17-1-1 through 17-5-9 NMSA 1978 and regulations adopted by the state game commission; and defined "youthful offender" in Subsection I to include a delinquent child fourteen to eighteen years of age and who is adjudicated for aggravated battery against a household member.

The 2003 amendment, effective July 1, 2003, added "an offense" at the beginning of Paragraph A(1); deleted "any" at the beginning of Subparagraphs A(1)(a) to (h); in Paragraph A(2), substituted "an establishment" for "establishments" preceding "as defined in", substituted "serves" for "serve" following "public safety, that"; added Paragraph A(8); and substituted "a" for "any" or "an" for "any" throughout the section.

The 1996 amendment, effective July 1, 1996, deleted "but not limited to" in the introductory language of Subsection A and added Paragraph A(7); substituted "fifteen to eighteen" "for sixteen or seventeen" in Subsection H; substituted "fourteen" for "fifteen" at the beginning of Paragraphs I(1), (2) and (3); added Subparagraph I(1)(e) and redesignated the following subparagraphs accordingly; deleted "which results in great bodily harm to another person" preceding "was provided" in Subparagraph I(1)(f); added Subparagraph I(1)(l); and made stylistic changes throughout the section.

The 1995 amendment, effective July 1, 1995, inserted "felony" preceding "violation" in Paragraph (3) of Subsection A; substituted "32A-2-27" for "32-2-27" in Subsection G; substituted "three-year" for "two-year" preceding "time period" in Paragraph (2) of Subsection I; and made minor stylistic changes throughout the section. Laws 1995, ch. 204, § 2 and Laws 1995, ch. 205, § 2 also amended this section. The section was set out as amended by Laws 1995, ch. 206, § 10. See 12-1-8 NMSA 1978.

Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section.

Law enforcement does not have a duty to consider a child's mental disability before arresting the child, if the arresting officer has established probable cause to arrest. — Where a law enforcement officer has established probable cause to arrest a child for committing a delinquent act, the Delinquency Act does not impose an additional duty on the law enforcement officer to investigate whether a disability prevents the child from forming the requisite intent to commit a delinquent act. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014).

Where student resource officer had probable cause to arrest plaintiff, a sixth grade student who had been qualified as emotionally disturbed, based on the officer's own observation of plaintiff kicking her teacher, corroborated by interviews with the teacher and another student who had been attacked by plaintiff, the officer did not violate the plaintiff's fourth amendment rights when he arrested plaintiff, and the New Mexico Delinquency Act did not impose a duty on the officer to investigate whether plaintiff's disability prevented her from forming the requisite intent to commit battery on a school employee; once probable cause is established, an officer is not required to continue to investigate for exculpatory evidence before arresting a suspect. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014).

Commitment to age 21. — Section 32A-2-19 B(1)(c) NMSA 1978 does not say that commitment to age 21 is authorized only for children who fit the definition of youthful offenders as set forth in Subsection I (now J) of this section. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660.

Delinquency Act does not define or describe "complaint". State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659.

Legislature intended to create three categories of juvenile offenders subject to varying degrees of accountability. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd in part, rev'd in part, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184.

Constitutionality of excluding serious youthful offenders convicted of first-degree felony murder from receiving an amenability hearing. — Where defendant was charged and convicted of three counts of first-degree felony murder and conspiracy to commit aggravated burglary, based on evidence that defendant, who was sixteen years old at the time, killed three members of a family with a pickaxe after he and two co-conspirators planned to burglarize the family in order to get money, and where, prior to sentencing, defendant filed a motion arguing that the constitutional prohibition against cruel and unusual punishment and the constitutional guarantee of equal protection require an amendability hearing in conjunction with the court's sentencing, defendant's constitutional rights were not violated by being sentenced without an amenability hearing, because cruel and unusual punishment jurisprudence does not guarantee an amenability hearing to juveniles simply because they are juveniles, and defendant failed to show that the legislature's statutory distinction is unsupported by a firm rationale or evidence in the record. State v. Ortiz, 2021-NMSC-029.

"Serious youthful offender". — This section clearly expresses a legislative intent to treat those children charged with first degree murder differently than other children, even if ultimately those children are not found guilty on the first degree murder charge. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86.

Intent of the legislature. — The legislature intended to treat children charged with first degree murder as adults, not as delinquent children. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86.

The right to be treated as a child is a statutory, not a constitutional, right. Therefore, it is within the purview of the legislature to decide that children initially accused of first degree murder, even if found not guilty of that charge, may be sentenced as adults for other crimes. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.

Conviction of crime necessary prerequisite to determination of delinquency. — It is a fundamental right of a party to be convicted of a crime, which is a necessary prerequisite to a determination of delinquency, based upon evidence of the elements of the crime, and in a prosecution for a violation of Section 30-31-23 NMSA 1978, the state must prove that the respondents had knowledge of the presence and character of the item possessed; a degree of furtiveness on the parts of juvenile respondents, in doing their smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to imply that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Curfew ordinance not within definition. — A village curfew ordinance forbidding any juvenile under the age of 18 years to be upon the streets between certain hours unless accompanied by a parent or guardian does not come within the purview of the definition of a delinquent act since the ordinance relates only to juveniles under the age of 18 years. In re Doe, 1975-NMCA-048, 87 N.M. 466, 535 P.2d 1092, rev'd on other grounds sub nom. State v. Doe, 1975-NMSC-034, 88 N.M. 137, 537 P.2d 1399.

Sentencing as adult for unlisted crime. — A juvenile who is adjudicated for any of the offenses listed under Subsection I (now J) of this section may be subject to adult sanctions under Section 32A-2-20 NMSA 1978 for any other offense in the same case. State v. Montano, 1995-NMCA-065, 120 N.M. 218, 900 P.2d 967, cert. denied, 120 N.M. 68, 898 P.2d 120.

Prosecution as youthful offender for misdemeanor aggravated battery. — There is no incongruity or injustice in the legislature's decision to include misdemeanor aggravated battery in the list of offenses in Subsection I, or to exclude manslaughter and certain sexual assaults therefrom; therefore, prosecution of a juvenile as a youthful offender for misdemeanor aggravated battery was proper. State v. Michael S., 1995-NMCA-112, 120 N.M. 617, 904 P.2d 595 (decided under prior law).

Allegation of delinquency sufficient. — Petition was not jurisdictionally defective for failure to allege that defendant was in need of care or rehabilitation since it alleged defendant was a delinquent child, which was defined to mean a child who has committed a delinquent act and is in need of care or rehabilitation. Doe v. State, 1976-NMCA-002, 88 N.M. 627, 545 P.2d 93 (decided under prior law).

Probation order void without finding of need of care. — The children's court order which placed a child on probation without a finding that the child was in need of care or rehabilitation was unauthorized and void; probation is authorized for a child found to be delinquent, and a child is not delinquent unless in need of care or rehabilitation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law).

If no finding of delinquency, then no diagnostic evaluation. — Although a child was found to have committed delinquent acts, there was no finding that the child was in need of care or rehabilitation, or a finding that the child was a delinquent child, and thus the children's court lacked authority to order a diagnostic evaluation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law).

Delinquent child allegation improper where charge for possession of liquor. — The act of possession of alcoholic beverages with which a 16-year-old child was charged could be characterized as a delinquent act and the allegation of delinquent child seemed proper, since an adult between the ages of 18 and 21 may under certain circumstances be guilty of a crime when in possession of alcoholic beverages. However, it cannot apply to any minor under the age of 18 under the Children's Code since the children's court has exclusive jurisdiction of any illegal act committed by a child under the age of 18 and it is not considered a crime, unless there is a specific exception made in the Code itself. State v. Doe, 1975-NMSC-034, 88 N.M. 137, 537 P.2d 1399 (decided under prior law).

Probable cause of possession of alcohol. — Probable cause to believe that a child wrongfully possessed or consumed alcohol sufficient to justify an arrest and warrantless search was not shown by the fact that the child's friend smelled of alcohol, or by the child's admission that he consumed a beer outside of the officer's presence. State v. Tywayne, 1997-NMCA-015, 123 N.M. 42, 933 P.2d 251, cert. denied, 123 N.M. 83, 934 P.2d 277.

Magistrate and municipal court jurisdiction. — It appears that municipal and magistrate courts can exercise jurisdiction over children for traffic offenses which are not designated delinquent acts under the Children's Code. 1972 Op. Att'y Gen. No. 72-34.

Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentences of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005).

For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules", see 6 N.M.L. Rev. 331 (1976).