A. Unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages consists of carrying a loaded or unloaded firearm on any premises licensed by the regulation and licensing department for the dispensing of alcoholic beverages except:

1. (1) by a law enforcement officer in the lawful discharge of the officer's duties;
2. (2) by a law enforcement officer who is certified pursuant to the Law Enforcement Training Act [Chapter 29, Article 7 NMSA 1978] acting in accordance with the policies of the officer's law enforcement agency;
3. (3) by the owner, lessee, tenant or operator of the licensed premises or the owner's, lessee's, tenant's or operator's agents, including privately employed security personnel during the performance of their duties;

4. (4) by a person carrying a concealed handgun who is in possession of a valid concealed handgun license for that gun pursuant to the Concealed Handgun Carry Act [Chapter 29, Article 19 NMSA 1978] on the premises of:

   1. (a) a licensed establishment that does not sell alcoholic beverages for consumption on the premises; or
   2. (b) a restaurant licensed to sell only beer and wine that derives no less than sixty percent of its annual gross receipts from the sale of food for consumption on the premises, unless the restaurant has a sign posted, in a conspicuous location at each public entrance, prohibiting the carrying of firearms, or the person is verbally instructed by the owner or manager that the carrying of a firearm is not permitted in the restaurant;
5. (5) by a person in that area of the licensed premises usually and primarily rented on a daily or short-term basis for sleeping or residential occupancy, including hotel or motel rooms;
6. (6) by a person on that area of a licensed premises primarily used for vehicular traffic or parking; or

7. (7) for the purpose of temporary display, provided that the firearm is:

   1. (a) made completely inoperative before it is carried onto the licensed premises and remains inoperative while it is on the licensed premises; and

   2. (b) under the control of the licensee or an agent of the licensee while the firearm is on the licensed premises.

      B. Whoever commits unlawful carrying of a firearm in an establishment licensed to dispense alcoholic beverages is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-7-2.1, enacted by Laws 1975, ch. 149, § 1; 1977, ch. 160, § 1; 1999, ch. 156, § 1; 2007, ch. 158, § 1; 2010, ch. 106, § 1.

ANNOTATIONS

The 2010 amendment, effective July 1, 2010, in Subsection A(4), after "Concealed Handgun Carry Act", deleted "provided that the" and added "on the premises of;"; and added Subparagraph (b) of Paragraph (4) of Subsection A.

The 2007 amendment, effective July 1, 2007, added Paragraphs (2) and (4) of Subsection A.

The 1999 amendment, effective July 1, 1999, substituted "regulation and licensing department" for "department of alcoholic beverage control" in the introductory paragraph of Subsection A and added Subsection A(5).

Purpose of statute is to protect innocent patrons of businesses held out to the public as licensed liquor establishments. State v. Soto, 1980-NMSC-114, 95 N.M. 81, 619 P.2d 185.

Purpose of statute. — The purpose of the section is to protect innocent patrons of businesses which are licensed liquor establishments, and application during periods when liquor sales are prohibited by statute still serves the purpose of preventing or warding off the potential for harm from the mixture of alcohol and firearms. State v. Lake, 1996-NMCA-055, 121 N.M. 794, 918 P.2d 380, cert. denied, 121 N.M. 676, 916 P.2d 1343.

State's prima facie case requires proof of licensing, and is satisfied by the testimony of the owner of the bar and by a copy of the license. State v. Soto, 1980-NMSC-114, 95 N.M. 81, 619 P.2d 185.

This section is constitutional, as being within the police powers of the legislature, and is a valid regulation of a constitutional privilege. State v. Dees, 1983-NMCA-105, 100 N.M. 252, 669 P.2d 261.

Constitutionality. — This section is not overbroad or vague; it does not require proof that the defendant knew his act to be unlawful. Further the definition of licensed premises includes areas of the licensed premises besides those where the alcoholic beverages are displayed, and in the case at bar, the defendant knew his conduct violated the statute since the defendant had been repeatedly warned by store employees that bringing a firearm into the store was illegal. State v. Lake, 1996-NMCA-055, 121 N.M. 794, 918 P.2d 380, cert. denied, 121 N.M. 676, 916 P.2d 1343.

Section applicable to any premises licensed for dispensing. — This section does not refer to a particular type of license; it applies to any premises licensed for dispensing; it is not limited to a dispenser's license and it is to be read with 60-3-1 NMSA 1978 (now 60-3A-3 NMSA 1978). State v. Montoya, 1977-NMCA-134, 91 N.M. 262, 572 P.2d 1270.

State of mind necessary for commission of the crime. — The requisite mens rea element of this crime is that the possession be intentional; in other words, that the offender have actual knowledge of the possession. The jury needs only to find that the defendant acted intentionally and that he or she purposely did an act which the law declared to be a crime, whether or not the defendant knew the act to be unlawful. State v. Powell, 1993-NMCA-021, 115 N.M. 188, 848 P.2d 1115.

General criminal intent. — This section requires general criminal intent as to carrying of the firearm, but not as to the premises upon which the firearm is carried. State v. Torres, 2003-NMCA-101, 134 N.M. 194, 75 P.3d 410, cert. denied, 134 N.M. 179, 74 P.3d 1071.

Evidence sufficient for conviction. — To sustain the charge of unlawful carrying of a firearm in a licensed liquor establishment, the state was required to prove that defendant carried a loaded or unloaded firearm in an establishment licensed to dispense alcoholic beverages. Testimony that lounge displayed a license supports an inference that the license had not expired. Testimony that defendant carried a bag into the lounge which was later found to contain a handgun supports a reasonable inference is that it was the same one defendant carried in the lounge. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, cert. denied, 115. N.M. 228, 849 P.2d 371.

Mistake-of-fact defense. — Because of the strict liability nature of the offense of unlawfully carrying a firearm into a licensed liquor establishment, the defendant was not entitled to raise a mistake-of-fact defense regarding the nature of the establishment. State v. Torres, 2003-NMCA-101, 134 N.M. 194, 75 P.3d 410, cert. denied, 134 N.M. 179, 74 P.3d 1071.

Instructions. — The listing of the persons excepted in Subsection A does not constitute an essential element of the offense and the failure to instruct on these exceptions is not jurisdictional and reversible error, especially when the defendant has not cited proof nor stated any facts to show that the exceptions apply to him. State v. Roybal, 1983-NMCA-085, 100 N.M. 155, 667 P.2d 462.

Sale of firearms. — The selling of firearms in a licensed liquor establishment would be unlawful pursuant to this section. 1977 Op. Att'y Gen. No. 77-23.

Law reviews. — For article, "The Right (?) to Keep and Bear Arms," see 27 N.M.L. Rev. 491 (1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Weapons and Firearms § 27.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 A.L.R. Fed. 347.

94 C.J.S. Weapons § 7.