N.M. Stat. Ann. § 32A-2-3
As used in the Delinquency Act:
A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, not including a violation of Section 30-9-2 NMSA 1978, including the following offenses:
(1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code [66-1-1 NMSA 1978]:
J. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is:
(1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses:
History: 1978 Comp., § 32A-2-3, enacted by Laws 1993, ch. 77, § 32; 1995, ch. 204, § 2; 1995, ch. 205, § 2; 1995, ch. 206, § 10; 1996, ch. 85, § 2; 2003, ch. 225, § 3; 2005, ch. 189, § 11; 2009, ch. 239, § 10; 2019, ch. 101, § 1; 2024, ch. 38, § 17.
The 2024 amendment, effective July 1, 2024, added "trafficking cannabis products" to the list of offenses under the Delinquency Act; and in Subsection A, added Paragraph A(8).
The 2019 amendment, effective June 14, 2019, excluded prostitution from the definition of "delinquent act" as used in the Delinquency Act; and in Subsection A, added "not including a violation of Section 30-9-2 NMSA 1978".
The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, at the beginning of the sentence, deleted "an offense" and added "any of the following offenses"; and added Subsection I
The 2005 amendment, effective June 17, 2005, deleted former Subsection A(3), which provided that a delinquent act included a felony violations of Section 17-1-1 through 17-5-9 NMSA 1978 and regulations adopted by the state game commission; and defined "youthful offender" in Subsection I to include a delinquent child fourteen to eighteen years of age and who is adjudicated for aggravated battery against a household member.
The 2003 amendment, effective July 1, 2003, added "an offense" at the beginning of Paragraph A(1); deleted "any" at the beginning of Subparagraphs A(1)(a) to (h); in Paragraph A(2), substituted "an establishment" for "establishments" preceding "as defined in", substituted "serves" for "serve" following "public safety, that"; added Paragraph A(8); and substituted "a" for "any" or "an" for "any" throughout the section.
The 1996 amendment, effective July 1, 1996, deleted "but not limited to" in the introductory language of Subsection A and added Paragraph A(7); substituted "fifteen to eighteen" "for sixteen or seventeen" in Subsection H; substituted "fourteen" for "fifteen" at the beginning of Paragraphs I(1), (2) and (3); added Subparagraph I(1)(e) and redesignated the following subparagraphs accordingly; deleted "which results in great bodily harm to another person" preceding "was provided" in Subparagraph I(1)(f); added Subparagraph I(1)(l); and made stylistic changes throughout the section.
The 1995 amendment, effective July 1, 1995, inserted "felony" preceding "violation" in Paragraph (3) of Subsection A; substituted "32A-2-27" for "32-2-27" in Subsection G; substituted "three-year" for "two-year" preceding "time period" in Paragraph (2) of Subsection I; and made minor stylistic changes throughout the section. Laws 1995, ch. 204, § 2 and Laws 1995, ch. 205, § 2 also amended this section. The section was set out as amended by Laws 1995, ch. 206, § 10. See 12-1-8 NMSA 1978.
Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section.
Law enforcement does not have a duty to consider a child’s mental disability before arresting the child, if the arresting officer has established probable cause to arrest. — Where a law enforcement officer has established probable cause to arrest a child for committing a delinquent act, the Delinquency Act does not impose an additional duty on the law enforcement officer to investigate whether a disability prevents the child from forming the requisite intent to commit a delinquent act. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014).
Where student resource officer had probable cause to arrest plaintiff, a sixth grade student who had been qualified as emotionally disturbed, based on the officer’s own observation of plaintiff kicking her teacher, corroborated by interviews with the teacher and another student who had been attacked by plaintiff, the officer did not violate the plaintiff’s fourth amendment rights when he arrested plaintiff, and the New Mexico Delinquency Act did not impose a duty on the officer to investigate whether plaintiff’s disability prevented her from forming the requisite intent to commit battery on a school employee; once probable cause is established, an officer is not required to continue to investigate for exculpatory evidence before arresting a suspect. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014).
Commitment to age 21. — Section 32A-2-19 B(1)(c) NMSA 1978 does not say that commitment to age 21 is authorized only for children who fit the definition of youthful offenders as set forth in Subsection I (now J) of this section. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660.
Delinquency Act does not define or describe "complaint". State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659.
Legislature intended to create three categories of juvenile offenders subject to varying degrees of accountability. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd in part, rev'd in part, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184.
Constitutionality of excluding serious youthful offenders convicted of first-degree felony murder from receiving an amenability hearing. — Where defendant was charged and convicted of three counts of first-degree felony murder and conspiracy to commit aggravated burglary, based on evidence that defendant, who was sixteen years old at the time, killed three members of a family with a pickaxe after he and two co-conspirators planned to burglarize the family in order to get money, and where, prior to sentencing, defendant filed a motion arguing that the constitutional prohibition against cruel and unusual punishment and the constitutional guarantee of equal protection require an amendability hearing in conjunction with the court's sentencing, defendant's constitutional rights were not violated by being sentenced without an amenability hearing, because cruel and unusual punishment jurisprudence does not guarantee an amenability hearing to juveniles simply because they are juveniles, and defendant failed to show that the legislature's statutory distinction is unsupported by a firm rationale or evidence in the record. State v. Ortiz, 2021-NMSC-029.
"Serious youthful offender". — This section clearly expresses a legislative intent to treat those children charged with first degree murder differently than other children, even if ultimately those children are not found guilty on the first degree murder charge. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86.
Intent of the legislature. — The legislature intended to treat children charged with first degree murder as adults, not as delinquent children. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86.
The right to be treated as a child is a statutory, not a constitutional, right. Therefore, it is within the purview of the legislature to decide that children initially accused of first degree murder, even if found not guilty of that charge, may be sentenced as adults for other crimes. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.
Conviction of crime necessary prerequisite to determination of delinquency. — It is a fundamental right of a party to be convicted of a crime, which is a necessary prerequisite to a determination of delinquency, based upon evidence of the elements of the crime, and in a prosecution for a violation of Section 30-31-23 NMSA 1978, the state must prove that the respondents had knowledge of the presence and character of the item possessed; a degree of furtiveness on the parts of juvenile respondents, in doing their smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to imply that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.
Curfew ordinance not within definition. — A village curfew ordinance forbidding any juvenile under the age of 18 years to be upon the streets between certain hours unless accompanied by a parent or guardian does not come within the purview of the definition of a delinquent act since the ordinance relates only to juveniles under the age of 18 years. In re Doe, 1975-NMCA-048, 87 N.M. 466, 535 P.2d 1092, rev'd on other grounds sub nom. State v. Doe, 1975-NMSC-034, 88 N.M. 137, 537 P.2d 1399.
Sentencing as adult for unlisted crime. — A juvenile who is adjudicated for any of the offenses listed under Subsection I (now J) of this section may be subject to adult sanctions under Section 32A-2-20 NMSA 1978 for any other offense in the same case. State v. Montano, 1995-NMCA-065, 120 N.M. 218, 900 P.2d 967, cert. denied, 120 N.M. 68, 898 P.2d 120.
Prosecution as youthful offender for misdemeanor aggravated battery. — There is no incongruity or injustice in the legislature's decision to include misdemeanor aggravated battery in the list of offenses in Subsection I, or to exclude manslaughter and certain sexual assaults therefrom; therefore, prosecution of a juvenile as a youthful offender for misdemeanor aggravated battery was proper. State v. Michael S., 1995-NMCA-112, 120 N.M. 617, 904 P.2d 595 (decided under prior law).
Allegation of delinquency sufficient. — Petition was not jurisdictionally defective for failure to allege that defendant was in need of care or rehabilitation since it alleged defendant was a delinquent child, which was defined to mean a child who has committed a delinquent act and is in need of care or rehabilitation. Doe v. State, 1976-NMCA-002, 88 N.M. 627, 545 P.2d 93 (decided under prior law).
Probation order void without finding of need of care. — The children's court order which placed a child on probation without a finding that the child was in need of care or rehabilitation was unauthorized and void; probation is authorized for a child found to be delinquent, and a child is not delinquent unless in need of care or rehabilitation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law).
If no finding of delinquency, then no diagnostic evaluation. — Although a child was found to have committed delinquent acts, there was no finding that the child was in need of care or rehabilitation, or a finding that the child was a delinquent child, and thus the children's court lacked authority to order a diagnostic evaluation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law).
Delinquent child allegation improper where charge for possession of liquor. — The act of possession of alcoholic beverages with which a 16-year-old child was charged could be characterized as a delinquent act and the allegation of delinquent child seemed proper, since an adult between the ages of 18 and 21 may under certain circumstances be guilty of a crime when in possession of alcoholic beverages. However, it cannot apply to any minor under the age of 18 under the Children's Code since the children's court has exclusive jurisdiction of any illegal act committed by a child under the age of 18 and it is not considered a crime, unless there is a specific exception made in the Code itself. State v. Doe, 1975-NMSC-034, 88 N.M. 137, 537 P.2d 1399 (decided under prior law).
Probable cause of possession of alcohol. — Probable cause to believe that a child wrongfully possessed or consumed alcohol sufficient to justify an arrest and warrantless search was not shown by the fact that the child's friend smelled of alcohol, or by the child's admission that he consumed a beer outside of the officer's presence. State v. Tywayne, 1997-NMCA-015, 123 N.M. 42, 933 P.2d 251, cert. denied, 123 N.M. 83, 934 P.2d 277.
Magistrate and municipal court jurisdiction. — It appears that municipal and magistrate courts can exercise jurisdiction over children for traffic offenses which are not designated delinquent acts under the Children's Code. 1972 Op. Att'y Gen. No. 72-34.
Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentences of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005).
For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules", see 6 N.M.L. Rev. 331 (1976).