A. Aggravated battery upon a peace officer consists of the unlawful touching or application of force to the person of a peace officer with intent to injure that peace officer while he is in the lawful discharge of his duties.

B. Whoever commits aggravated battery upon a peace officer, inflicting an injury to the peace officer which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a fourth degree felony.

C. Whoever commits aggravated battery upon a peace officer, inflicting great bodily harm, or does so with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted, is guilty of a third degree felony.

History: 1953 Comp., § 40A-22-24, enacted by Laws 1971, ch. 265, § 5.

Cross references. — For definitions of deadly weapon and great bodily harm, see 30-1-12 NMSA 1978.

For aggravated battery, see 30-3-5 NMSA 1978.

Knowledge of the victim's identity as a peace officer. — Knowledge of the victim's identity as a peace officer is an essential element of the crime of aggravated battery upon a peace officer, which the state has the burden to prove beyond a reasonable doubt. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119, aff'g 2007-NMCA-131, 142 N.M. 626, 168 P.3d 756.

Sufficient evidence of aggravated battery on a peace officer based on a theory of accessory liability. — Where police officers attempted to execute a search of defendant's residence pursuant to a warrant, and where, as officers approached a camper on the property, the officers heard and saw gunfire coming from the camper, striking one of the officers, evidence that defendant owned the camper and was inside the camper at the time of the gunfire, and that DNA tests performed on several of the firearms retrieved from the camper found that defendant was either a major contributor of the DNA or could not be eliminated as a contributor, was sufficient for a reasonable jury to infer that defendant either shot at the officers himself, or, given the availability of firearms and ammunition inside his camper, defendant encouraged, helped, or caused others to shoot at the officers. State v. Uribe-Vidal, 2018-NMCA-008.

Convictions of aggravated battery upon a peace officer and attempted first degree murder violated double jeopardy. — Where defendant, who was imprisoned in a county detention center, attacked and stabbed a correctional officer five times with a metal shank, defendant's convictions for attempted murder and aggravated battery of a peace officer did not violate double jeopardy. State v. Urquizo, 2012-NMCA-113, 288 P.3d 919, cert. granted, 2012-NMCERT-011.

Although the defendant's mental state, rather than the victim's conduct, is the touchstone of the defendant's knowledge that the victim is a peace officer, the defendant's intent to commit aggravated battery on a peace officer may be established by circumstantial evidence, which may include the fact that the victim was in full uniform, had a badge visibly displayed, was driving a marked police vehicle, or had identified himself or herself as a police officer. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119, aff'g 2007-NMCA-131, 142 N.M. 626, 168 P.3d 756.

Battery under Section 30-3-4 NMSA 1978 is a lesser included offense of aggravated battery upon a peace officer. State v. Nozie, 2009-NMSC-018, 146 N.M. 142, 207 P.3d 1119, aff'g 2007-NMCA-131, 142 N.M. 626, 168 P.3d 756.

Claim of self-defense negates a specific element of battery upon a peace officer. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 636, 124 P.3d 564.

Lesser offense. — The offense of aggravated battery upon a peace officer is a lesser included offense of the crime of assault with intent to commit a violent felony upon a peace officer (30-22-23 NMSA 1978). State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248.

Battery upon officer included. — Battery upon a peace officer is a charge included within the charge of aggravated battery upon a peace officer, and thus defendant's conviction was for an offense included within the charge of aggravated battery of an officer of which he had notice. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.