Domestic Violence Attorney Las Cruces: Charges and Orders of Protection

What domestic violence means in New Mexico

New Mexico does not have one crime called “domestic violence.” It has a set of crimes under the Crimes Against Household Members Act. The only thing that makes them “domestic” is who the other person is.

Under NMSA 1978, § 30-3-11, a household member is a spouse, former spouse, parent, stepparent, parent-in-law, grandparent, grandparent-in-law or co-parent of a child, present or former. It also includes anyone you have had a dating or intimate relationship with. You do not have to live together. An ex you dated for a month counts.

The charge to understand first is battery against a household member ({{DV_STATUTE}}). The law defines it as touching or using force on a household member on purpose, without a lawful reason, in a rude, insolent or angry manner. No injury is required. A grab of the arm during an argument meets the definition.

The other charges in the Act are built on the same definition:

• Assault against a household member, NMSA 1978, § 30-3-12: a threat or attempt that makes the other person reasonably believe a battery is coming. A petty misdemeanor.
• Aggravated assault against a household member, NMSA 1978, § 30-3-13: an assault with a deadly weapon, or with intent to commit a felony. A fourth degree felony.
• Assault against a household member with intent to commit a violent felony, NMSA 1978, § 30-3-14: a third degree felony.
• Aggravated battery against a household member, NMSA 1978, § 30-3-16: a battery with intent to injure. A misdemeanor if the injury is not likely to cause death or great bodily harm. A third degree felony if it is, if a deadly weapon was used, or if the act was strangulation or suffocation.

If the other person is not a household member, the same facts are charged as ordinary assault or battery. The assault and battery page covers those.

Penalties

Battery against a household member

A misdemeanor. Under NMSA 1978, § 31-19-1, that means county jail for less than one year and a fine of up to $1,000. The statute also requires anyone convicted to complete a domestic violence offender treatment or intervention program, and it allows probation to run for up to two years. A conviction cannot be expunged for ten years after the sentence is complete, which is the longest waiting period in the Criminal Record Expungement Act.

Aggravated battery against a household member

The misdemeanor version carries the same jail and fine as above. The felony version is a third degree felony: under NMSA 1978, § 31-18-15, a basic sentence of three years in prison and a fine of up to $5,000. Strangulation is one of the facts that turns a misdemeanor into a felony. Prosecutors can charge it on a statement alone, with or without marks, so how that statement was taken matters.

Repeat offenses

Under NMSA 1978, § 30-3-17, this applies when the other person is a spouse, former spouse, co-parent or dating partner. A battery or aggravated battery against a household member with three prior convictions is a fourth degree felony. With four or more priors it is a third degree felony. A plea that looks cheap today can be the prior that makes the next case a felony.

Federal firearm consequences

Under 18 U.S.C. § 922(g)(9), a person convicted of a misdemeanor crime of domestic violence may not possess a firearm or ammunition. The penalty for doing so is federal prison for up to 15 years. There is no waiting period, and the ban does not expire on its own.

New Mexico courts are required to warn you at the plea that a domestic violence plea will affect your right to bear arms. If you hunt, work in law enforcement or the military, or keep a gun at home, this is the consequence to think about hardest before any plea.

Orders of protection and restraining orders in New Mexico

The criminal charge is one case. The order of protection is a second, separate case, filed in civil court under the Family Violence Protection Act, NMSA 1978, § 40-13-1 and the sections that follow. People call it a restraining order; the legal name in New Mexico is an order of protection. Both cases can run at the same time, and what you say in one can be used in the other. A restraining order lawyer Las Cruces families call for one case should be handling both.

Any household member who claims domestic abuse can file a petition, under oath, in the Third Judicial District Court. Under NMSA 1978, § 40-13-4, the judge must grant a temporary order of protection immediately, without hearing from you, if the petition shows probable cause. That means a reasonable basis to believe the abuse happened.

Within ten days of that temporary order the court holds a hearing on whether to continue it. If the judge did not grant a temporary order, the hearing comes within 72 hours of the petition. There is no filing fee for the person who petitions.

“Domestic abuse” under the Act is broader than battery. It includes threats that cause fear, criminal trespass or damage to property, repeatedly driving by a home or workplace, harassment, and harm to children. Stalking and sexual assault count whether or not the person is a household member.

After the hearing, the court can enter a full order of protection. It can forbid all contact, give the other person the home, set temporary custody and support, and order counseling. It can also require you to turn in your firearms if the court finds a credible threat to the other person’s safety.

Custody and support terms last up to six months and can be extended; the no-contact terms continue until a judge modifies or ends them. Violating an order of protection NM courts have entered is a misdemeanor on its own, and a second violation carries a minimum of 72 consecutive hours in jail. Police can arrest on probable cause without a warrant.

What happens next

Arrest and no-contact release conditions

When police respond to a domestic call and believe a battery happened, expect an arrest that night, even if the other person asks them not to. You will be booked at the detention center and released on conditions or held for a first appearance. The standard condition is no contact with the alleged victim, direct or indirect. If you share a home, you cannot go back to it until the court changes that condition. Read the release order before you walk out, and follow it to the letter.

Some domestic calls start with alcohol. If you were also charged with DWI (what other states call DUI) that night, that is a second case with its own clock. The DWI attorney page explains the separate 10-day deadline to request an MVD (Motor Vehicle Division) hearing about your license.

Arraignment in Doña Ana County Magistrate or Third Judicial District Court

Misdemeanor charges are filed in Doña Ana County Magistrate Court, 110 Calle de Alegra, Las Cruces, NM 88005. If you are not in custody, arraignment comes within 30 days after the complaint or the arrest, whichever is later. If you are held at the local detention center, it comes within three days of arrest.

Felony charges go to the Third Judicial District Court, 201 W. Picacho Ave., Las Cruces, NM 88005, after a preliminary examination in magistrate court or a grand jury indictment. In magistrate court, Rule 6-506 NMRA requires the State to bring a misdemeanor to trial within 182 days of arraignment or see it dismissed with prejudice. You plead not guilty at arraignment. That is normal.

The order-of-protection hearing

The hearing on the temporary order comes fast, within ten days. You can bring a lawyer, question the person who filed the petition, call witnesses and present text messages, photographs and recordings. The judge decides on a lower standard of proof than the criminal case. Anything you say is on the record and the prosecutor can use it. Do not go to this hearing alone, and do not skip it; an order entered in your absence is just as binding.

Pretrial and trial

After arraignment, the State turns over the 911 recording, body camera video, photographs and statements. Kelly reviews all of it, including any DWI or DUI evidence from the same night, and sends the investigator out. Motions to suppress statements or evidence follow. Plea discussions run alongside. If the case is not dismissed or resolved on terms you accept, it is tried to a judge or jury. You decide whether to take a plea or go to trial, with Kelly’s honest read of the risks.

How the defense works

Independent investigation and witness interviews by the private investigator

Kelly O’Connell Law uses a trained private investigator, a former homicide and narcotics officer, on all serious cases. In a domestic case the investigator interviews the neighbors, the friends who were on the phone that night, and the family members who saw the relationship before the argument. The investigator photographs the scene and the injuries, or the lack of them, before they fade, and pulls the 911 audio to compare it with what the report says.

Self-defense and mutual-combat facts

Some domestic calls involve two people pushing, grabbing and shouting. The person who called 911 first is not always the one who started it. If you were defending yourself, or if both of you were fighting, those facts are a defense. They have to be built with evidence: scratches on your arms, the broken phone, the witness who heard what happened before the door closed.

Statements made during an argument

What you said to the officer in the driveway at midnight, angry and scared, becomes the State’s evidence. Whether you were in custody, whether you were warned, and whether the officer’s questions were proper decides whether those statements come in. Kelly reads the body camera video frame by frame for this.

Credibility and prior allegations

Prior accusations, custody disputes, immigration motives and text messages sent after the incident all bear on credibility. Kelly builds that picture carefully. He presents it without attacking the other person for its own sake, because judges and juries in Doña Ana County do not respond well to that.

Negotiating conditions so you can go home or see your kids

Before any of that is finished, the most urgent problem is a practical one. You cannot go home, you cannot see your children, and you cannot set up a custody schedule without breaking an order. Kelly asks the court to loosen no-contact conditions where the facts support it. He arranges civil standbys, an officer present while you pick up belongings. And he coordinates with the order-of-protection case so that a custody exchange does not become a new charge.

Why Kelly O’Connell Law

Kelly O’Connell is a domestic violence attorney Las Cruces courts know. As a criminal defense attorney in Las Cruces, he handles the criminal case and the order-of-protection case together, in Doña Ana County Magistrate Court and the Third Judicial District Court. He puts a trained private investigator, a former homicide and narcotics officer, on all serious cases.

One attorney, start to finish. The case evaluation is free, and you will know the fee before you decide; it is quoted after that conversation. Cash, Visa and Mastercard are accepted. Bring the release order, the criminal complaint and any order-of-protection papers to the free case evaluation. Call (575) 496-6359 or request a free case evaluation online. The office is at 200 S. Water Street, Las Cruces, NM 88001.