Resisting, evading or obstructing an officer consists of:
A. knowingly obstructing, resisting or opposing any officer of this state or any other duly authorized person serving or attempting to serve or execute any process or any rule or order of any of the courts of this state or any other judicial writ or process;
B. intentionally fleeing, attempting to evade or evading an officer of this state when the person committing the act of fleeing, attempting to evade or evasion has knowledge that the officer is attempting to apprehend or arrest him;
C. willfully refusing to bring a vehicle to a stop when given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed officer in an appropriately marked police vehicle; or
D. resisting or abusing any judge, magistrate or peace officer in the lawful discharge of his duties.
Whoever commits resisting, evading or obstructing an officer is guilty of a misdemeanor.
History: 1953 Comp., § 40A-22-1, enacted by Laws 1963, ch. 303, § 22-1; 1981, ch. 248, § 1.
ANNOTATIONSCross references. — For authority of conservation officers to enforce these provisions under emergency circumstances, see 17-2-19 NMSA 1978.
Lesser included offense. — Resisting or abusing a peace officer is a lesser included offense within battery on a peace officer under the Blockburger test. State v. Ford, 2007-NMCA-052, 141 N.M. 512, 157 P.3d 77, cert. denied, 2007 NMCERT 004, 141 N.M. 568, 158 P.3d 458.
Resisting an officer is a lesser included offense of peace officer battery; the only difference between the two is that peace officer battery requires the resisting or abusing to culminate in a touching, while resisting does not. State v. Padilla, 1983-NMCA-096, 101 N.M. 78, 678 P.2d 706, aff'd in part, rev'd in part on other grounds, 1984-NMSC-026, 101 N.M. 58, 678 P.2d 686, aff'd sub nom. Fugate v. New Mexico, 470 U.S. 904, 105 S. Ct. 1858 (1985), 84 L. Ed. 2d 777.
Conduct constituting an offense. — Driving for two miles without responding to a police officer's emergency lights is behavior which violates Section 30-22-1C NMSA 1978. Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157 (10th Cir. 2003).
Violation of Subsection C. — If a stopped driver knows that an officer is trying to effectuate an arrest, then Section 30-22-1B NMSA 1978 applies if the driver tries to leave. State v. Baldonado, 1992-NMCA-140, 115 N.M. 106, 847 P.2d 751, cert. denied, 115 N.M. 145, 848 P.2d 531 (1993).
No probable cause. — Where police officers went to defendant's home to interview defendant about defendant's co-worker who was suspected to be involved in a rape; defendant was cooperative and invited the officers into defendant's home; during the interview, defendant decided to end the interview and asked the officers to leave; when the officers refused, defendant became agitated, and the officers arrested defendant because the officers speculated that defendant could have been more cooperative and shared more information about the suspect, the officers did not have probable cause to arrest defendant for resisting, evading, obstructing, or refusing to obey an officer. Manzanares v. Higdon, 575 F. 3d 1135 (10th Cir. 2009).
Where police officers were investigating defendant's child for commission of a felony; defendant told the officers that defendant did not know the child's birth date and address; when the officers asked defendant for identification, defendant responded that the identification was in defendant's house; and defendant started walking toward defendant's house, the officers did not have probable cause to arrest defendant for resisting, evading or obstructing an officer. Keylon v. City of Albuquerque, 535 F. 3d 1210 (10th Cir. 2008).
The word "apprehend" includes a situation in which an officer is attempting to briefly detain a person for questioning based on reasonable suspicion. State v. Gutierrez, 2007-NMSC-033, 142 N.M. 1, 162 P.3d 156.
Sufficient evidence. — Where a police officer had one handcuff on defendant when defendant pulled away and the officer had to forcibly finish handcuffing defendant, the evidence was sufficient to support defendant's conviction for resisting, evading or obstructing an officer. State v. Wilson, 2007-NMCA-111, 142 N.M. 737, 169 P.3d 1184, cert. denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089.
Where police officers arrested defendant for DWI; defendant argued with the officers and refused to cooperate; defendant would not put defendant's legs into the police car preventing the officers from closing the door; when the officers forced defendant's legs into the car, defendant placed defendant's head in a position that prevented the officer from closing the door; defendant intentionally fell out of the car; defendant twice kicked one officer, the evidence was sufficient to support defendant's conviction of resisting and abusing an officer. State v. Cotton, 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925, cert. denied, 2011-NMCERT-008, 268 P.3d 513.
Where police officers were investigating potential drug manufacturing; the officers were in plain clothes and driving unmarked vehicles; the officers were following defendant when defendant made a U-turn and stopped; one officer approached defendant's vehicle, displayed a badge, and said that the officer wanted to talk with defendant; defendant asked the officer what was going on and the officer again identified the officer as a police officer; defendant began creeping defendant's vehicle toward the officer; the other officer then approached defendant's vehicle, identified the officer as a police officer and displayed a badge; and when the other officer opened the door of defendant's vehicle and told the occupants to show their hands, defendant accelerated the vehicle and the other officer was thrown from the vehicle, there was sufficient evidence to support defendant's conviction of resisting, evading, and obstructing an officer. State v. Akers, 2010-NMCA-103, 149 N.M. 53, 243 P.3d 757.
Where the defendant and the defendant's vehicle matched the descriptions given to the officer by the victim of stalking; the officer asked the defendant to stop; the defendant said he needed to use the bathroom in the house where he had parked his vehicle; the officer followed the defendant into the house, but the defendant ran out the back door after he turned and saw the officer behind him and began to run, the officer had reasonable suspicion to temporarily detain the defendant for questioning and the defendant did not have the right to walk away from the officer. State v. Gutierrez, 2007-NMSC-033, 142 N.M. 1, 162 P.3d 156.
Section not vague. — There is no merit to claim that this section is vague on its face. State v. Andazola, 1981-NMCA-002, 95 N.M. 430, 622 P.2d 1050.
Section places those interfering with officer on notice of criminal sanctions. — In clear simple language, this statute puts everyone on notice that one would be exposed to criminal sanctions if he resisted or abused any peace officer who was engaged in the lawful discharge of his duties. State v. Andazola, 1981-NMCA-002, 95 N.M. 430, 622 P.2d 1050.
Conviction under this section does not bar civil rights claim. — Plaintiff's action under 42 U.S.C.S. § 1983 alleging that police officers used excessive force against him would not be barred by his conviction for resisting arrest, whether based on Subsection A or Subsection D. Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999).
Construction of former law. — Former 40-31-4 and 40-31-5, 1953 Comp., made it unlawful to obstruct justice, the former relating to obstructing an officer in serving process and the latter to resisting or abusing an officer while executing the duties of his office. City of Clovis v. Archie, 1955-NMSC-105, 60 N.M. 239, 290 P.2d 1075.
Applicability of former law. — Kearny Code, Crimes and Punishments, art. 3, § 4, prescribing penalty for obstruction or assaulting officer serving process was not applicable where the sheriff was not armed with process. State v. Welch, 1933-NMSC-084, 37 N.M. 549, 25 P.2d 211 (decided under prior law).
Resisting sheriff formerly serious offense. — Under former law, resisting a sheriff was itself a felony. State v. Smelcer, 1924-NMSC-059, 30 N.M. 122, 228 P. 183; see State v. Welch, 1933-NMSC-084, 37 N.M. 549, 25 P.2d 211 (resistance to a sheriff making a lawful arrest, but not armed with process, a misdemeanor) (decided under prior law).
Double jeopardy. — Where defendant led police on a high-speed automobile chase and then got out of his car and fled on foot, his acts supported only one crime founded on resisting, evading or obstructing an officer, and vacation of his convictions for two counts of evading an officer was required. State v. Lefebre, 2001-NMCA-009, 130 N.M. 130, 19 P.3d 825.
Jurisdictional exception. — The jurisdictional exception to double jeopardy permitted defendant's prosecution in the district court on a charge of peace officer battery, after he had pleaded guilty to several misdemeanors, including resisting arrest, in the magistrate court. State v. Padilla, 1984-NMSC-026, 101 N.M. 58, 678 P.2d 686, aff'd sub nom., Fugate v. New Mexico, 470 U.S. 904, 105 S. Ct. 1858, 84 L. Ed. 2d 777 (1985).
Conviction varying from crime charged in information. — The defendant was properly convicted of resisting, evading or obstructing an officer, because the evidence supported the verdict of the jury to that charge, and his opportunity to prepare and defend against the charge was not impaired by the fact that such an offense varied from the crime charged in the criminal information, i.e., aggravated assault upon a peace officer. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857, cert. denied, 107 N.M. 132, 753 P.2d 1320.
"Abusing" speech equated to "fighting" words. — "Abusing" speech in Subsection D covers only speech that can be called "fighting" words. Any other interpretation of that subsection applied to speech would render it unconstitutional. State v. Wade, 1983-NMCA-084, 100 N.M. 152, 667 P.2d 459.
"Fighting" words are those which tend to incite an immediate breach of the peace. State v. Wade, 1983-NMCA-084, 100 N.M. 152, 667 P.2d 459.
Self-defense distinguished from resisting unlawful arrest. — The right of self-defense against a police officer is a concept different from the right to resist an unlawful arrest, in that self-defense is for the purpose of protecting a person's bodily integrity and health, whereas the purpose of resisting an unlawful arrest is to prevent the arrest. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.
Limits of right to self-defense. — One has a right to defend oneself from a police officer, whether the attempted arrest is lawful or unlawful; this right, however, is limited, so that one may defend oneself against excessive use of force by the officer, but one may not resort to self-defense when the officer is using necessary force to effect an arrest. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.
Involuntary manslaughter while resisting arrest. — Instruction that killing an officer while resisting a lawful arrest was murder in first or second degree was error, since resistance to arrest, where sheriff was not armed with process, was a misdemeanor and death without malice resulting therefrom was involuntary manslaughter. State v. Welch, 1933-NMSC-084, 37 N.M. 549, 25 P.2d 211.
Lesser included offense instruction. — In a prosecution for aggravated assault on a peace officer, since there was evidence that resisting in violation of either Subsection B or D was the highest degree of crime committed, the defendant was entitled to a charge on the lesser offense. State v. Diaz, 1995-NMCA-137, 121 N.M. 28, 908 P.2d 258, cert. denied, 120 N.M. 828, 907 P.2d 1009.
Instruction on self-defense. — Defendant had a limited right of self-defense against police officer, and was entitled to an instruction on that limited right, which the instruction did not cover since it went only to the arrest and did not refer to the right to defend against excessive force whether or not the arrest was unlawful. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.
Defense of another against excessive police force is a viable defense. — The right to defense of another against a police officer is not absolute; it does not exist if the officer is using necessary force to effect an arrest. However, a defendant is entitled to a defense of another jury instruction if an officer used force against another that was unreasonable and unnecessary. State v. Jones, 2020-NMCA-029.
Where defendant was charged with battery upon a peace officer and resisting or abusing an officer, and where defendant requested a defense of another jury instruction, the district court erred in denying the request and in finding that defending another against excessive force by a police officer was not a viable defense, because defense of another against excessive police force is a viable defense and reasonable minds could differ as to whether the officers used excessive force in this case. State v. Jones, 2020-NMCA-029.
Acquittal bars retrial for battery. — After a magistrate's determination that the defendant was not guilty of resisting and obstructing an officer and disorderly conduct because he was acting in defense of another, the state cannot charge him with battery on a police officer and constitutionally bring him before a new fact finder to relitigate that same factual issue. State v. Orosco, 1982-NMCA-181, 99 N.M. 180, 655 P.2d 1024.
Evidence insufficient for conviction. — In the absence of evidence that defendant verbally resisted, evaded or obstructed a police officer, her refusal to allow the officer admission into her home could not be considered unlawful, and the trial court erred in denying her motion for a directed verdict. State v. Prince, 1999-NMCA-010, 126 N.M. 547, 972 P.2d 859.
Insufficient evidence of evading an officer. — Where defendant was charged with intentionally fleeing, attempting to evade or evading an officer after taking a gun inside a Las Cruces club, there was insufficient evidence to support defendant's conviction, because although defendant refused to comply with the officer's orders to surrender from inside the club, the state failed to present any evidence that defendant fled, attempted to evade, or evaded the officers before they were able to arrest him, and there was no evidence presented to suggest that defendant surreptitiously tried to escape from the building, such as out the back or side door, in order to evade arrest. State v. Jimenez, 2017-NMCA-039, cert. denied.
Burden of proof. — In order to convict defendant of evading and eluding a police officer, the state had the burden of proving that officer was a peace officer engaged in the lawful discharge of his duty and defendant, with knowledge that officer was attempting to apprehend or arrest him, fled, attempted to evade, or evaded officer. State v. Gutierrez, 2005-NMCA-093, 138 N.M. 147, 117 P.3d 953, aff'd in part, rev'd in part, 2007-NMSC-033, 142 N.M. 1, 162 P.3d 156.
Law reviews. — For comment on State v. Selgado, 76 N.M. 187, 413 P.2d 469 (1966), see 7 Nat. Resources J. 119 (1967).
For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).
For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Obstructing Justice §§ 10 to 17.
Criminal liability for obstructing process as affected by invalidity or irregularity of the process, 10 A.L.R.3d 1146.
What constitutes obstructing or resisting officer, in absence of actual force, 66 A.L.R.5th 397.
Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.
67 C.J.S. Obstructing Justice §§ 7, 10-14.