Assault & Battery

In New Mexico, assault is defined is the threat of bodily harm that causes fear of harm in the victim. Battery is an actual physical impact on the other person.  If the alleged victim does not claim to have been actually touched, but only threatened, the charge should be an assault. If the alleged victim claims to have been touched in a rude or angry manner, ,the defendant will likely be charged with battery. Both assault and battery have different levels of crime from a serious felony all the way down to a petty misdemeanor. When a firearm is used, for example, the prosecutor may charge aggravated assault or aggravated battery. The same holds true if the battery causes great bodily harm or if the victim is a peace officer.

The defendant can claim self-defense if he was not the initial aggressor and was defending himself or another person from an attack. The defendant must prove that he reasonably believed that he was under imminent attack and immediate action was necessary. Since an element of assault and batter required the defendant’s act to be intentional, other possible defense include that the defendant’s action was not intentional and were accidental.

Other possible defenses include:

• Self defense
• Defense of another
• Alibi – wrong person
• Lack of intent, such as an accident
• Defense of property
• Lack of mental capacity