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New Mexico Marijuana Laws

Penalty Details

Marijuana is a schedule I(c) hallucinogenic substance under New Mexico’s Controlled Substances Act.

See

  • New Mexico Stat. Ann. § 30-31-6 

Possession for Personal Use

For first offenders, possession of 1 ounce or less of marijuana is a petty misdemeanor and is punishable by a fine of $50-$100 and/or up to 15 days of imprisonment. For subsequent offenses possession of 1 ounce or less of marijuana is a misdemeanor and is punishable by a fine of $100-$1000 and/or up to 1 year of imprisonment.

Possession of more than 1 – less than 8 ounces of marijuana is a misdemeanor punishable by a fine of $100-$1000 and imprisonment for up to 1 year. Possession of 8 ounces or more of marijuana is a fourth degree felony and is punishable by 1.5 years of imprisonment and a fine of up to $5,000.

See

  • New Mexico Stat. Ann. § 30-31-23 
  • New Mexico Stat. Ann. § 31-18-15 

Distribution

Distribution of marijuana is treated the same as possessing marijuana with the intent to distribute it.

For first offenders, distribution of 100 pounds or less of marijuana is a fourth degree felony and is punishable by 1.5 years of imprisonment and a fine of up to $5,000. Subsequent offenses are punished as a third degree felony and offenders may be imprisoned for 3 years, a fine of $5,000 may also be imposed.

For first offenders, distribution of more than 100 pounds of marijuana is third degree felony and is punishable by 3 years of imprisonment and a fine of $5,000. Subsequent offenses are punished as a second degree felony and offenders may be imprisoned for 9 years, a fine of $10,000 may also be imposed.

If no payment is given, exchange of a small amount of marijuana is treated as possession only.

Distribution of marijuana to a minor occurs when a person over the age of 18 distributes marijuana to a person under the age of 18. For first offenders, distribution of marijuana to a minor is a third degree felony and is punishable by 3 years of imprisonment and a fine of $5,000. Subsequent offenses are punishable as a second degree felony and offenders may be imprisoned for 9 years, a fine of $10,000 may also be imposed.

Distributing marijuana within a drug-free school zone is a first degree felony and is punishable by 18 years of imprisonment and a fine of $15,000. There is an exception if the sale occurs in a private residence that is located in a drug-free school zone.

See

  • New Mexico Stat. Ann. §30-31-20(C) 
  • New Mexico Stat. Ann. §30-31-21
  • New Mexico Stat. Ann. §30-31-22
  • New Mexico Stat. Ann. § 31-18-15

Cultivation

For first offenders cultivation of marijuana is a second degree felony and is punishable by 9 years of imprisonment and a fine of $10,000. Subsequent offenses are considered a first degree felony and are punishable by 18 years of imprisonment and a fine of $15,000.

Cultivating marijuana within a drug-free school zone is a first degree felony and is punishable by 18 years of imprisonment and a fine of $15,000.

See

  • New Mexico Stat. Ann. §30-31-20

Hash & Concentrates

New Mexico defines hashish as: “the resin extracted from any part of marijuana, whether growing or not, and every compound, manufacture, salt, derivative, mixture or preparation of such resins”. Hashish is a Schedule I controlled substance.

Possessing hashish is a misdemeanor punishable by a fine no less than $500 and no greater than $1,000 and/or a term of imprisonment no greater than 1 year. Possessing hashish within 1,000 feet of non-secondary school is a fourth degree felony punishable by a fine no greater than $5,000 and/or a term of imprisonment no greater than 18 months. Drug-free zones do not include private residences, nor vehicles in transit.

Distributing or possessing with intent to distribute hashish is a third degree felony punishable by a fine no greater than $5,000 and a term of imprisonment no greater than 3 years. Subsequent convictions are second degree felonies punishable by a fine no greater than $10,000 and a term of imprisonment no greater than 9 years. Distributing or possessing with intent to distribute hashish within 1,000 feet of a non-secondary school is a second degree felony punishable by a fine no greater than $10,000 and/or a term of imprisonment no greater than 9 years. Subsequent convictions are first degree felonies punishable by a fine no greater than $15,000 and/or a term of imprisonment no greater than 18 years.

See

  • New Mexico Stat. Ann. § 30-31-2(L)
  • New Mexico Stat. Ann. § 30-31-6(C)(18)
  • New Mexico Stat. Ann. § 30-31-22
  • New Mexico Stat. Ann. § 30-31-23(D),(F)
  • New Mexico Stat. Ann. § 31-18-15

Paraphernalia

Possession or distribution of marijuana paraphernalia used for the cultivation, distribution, or inhalation/ingestion of marijuana is a misdemeanor and is punishable by a fine of $50-$100 and/or up to 1 year imprisonment.

Distribution of marijuana paraphernalia to a minor occurs when a person over the age of 18 distributes marijuana paraphernalia to a person under the age of 18. This offense is a fourth degree felony and is punishable by a fine of $5,000 and 1.5 years of imprisonment.

See

  • New Mexico Stat. Ann. §30-31-25.1 

Miscellaneous

In addition to any other penalty, a child 15 years or older is found delinquent of violating the Controlled Substances Act, their license may revoked.

See

  • New Mexico Stat. Ann. § 32A-2-19(H)
DRUGGED DRIVING

This state has a per se drugged driving law enacted. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. 

MEDICAL MARIJUANA

This state has medical marijuana laws enacted. Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications. These include pain relief, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant and emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors, and are neuroprotective.

New Mexico Drugged Driving

In New Mexico, it is unlawful for a person to drive a vehicle while under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle. N.M. Stat. Ann. § 66-8-102 (West 2010).

Implied Consent

  • Any person who operates a motor vehicle in New Mexico shall be deemed to have given consent to chemical tests of his breath or blood or both for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug. Id. § 66-8-107(A).
  • Evidence of a motorist’s refusal to take a breath alcohol test is admissible under the Implied Consent Act since there is no constitutional right to refuse to take the test and the right granted by the legislature is merely the right not to be forcibly tested after manifesting refusal. Id. §§ 66-8-105 to 66-8-112; McKay v. Davis, 653 P.2d 860 (1982).
  • Accused has an opportunity to arrange for a person who is employed by a hospital or physician of his own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer to be paid for by the police department. Id. §§ 66-8-109(B),(E).
  • Refusal of a motorist to take a breath alcohol test is relevant to show his consciousness of guilt and fear of test results. N.M. Stat. Ann. §§ 66-8-105 to 66-8-112 (West 2010); McKay v. Davis, 653 P.2d 860 (1982).
  • If an offender refuses to submit to chemical tests and is convicted, offender will be guilty of ‘Aggravated DUI.’ N.M. Stat. Ann. § 66-8-102(D)(3) (West 2010). See ‘Penalties’ section.

Penalties

  • First offense – imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($ 500), or both; offender shall be sentenced to not less than twenty-four hours of community service; the offender may be required to pay a fine of three hundred dollars ($ 300); offender shall be ordered by the court to participate in and complete a screening program described in Subsection K of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a “DWI school”, approved by the bureau and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. Id. § 66-8-102(E).
  • Second offense – imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($ 1,000), or both; an offender shall be sentenced to a jail term of not less than ninety-six consecutive hours, not less than forty-eight hours of community service and a fine of five hundred dollars ($ 500). Id. § 66-8-102(F)(1).
  • Third offense – imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($ 1,000), or both; an offender shall be sentenced to a jail term of not less than thirty consecutive days, not less than ninety-six hours of community service and a fine of seven hundred fifty dollars ($ 750). Id. § 66-8-102(F)(2).
  • Fourth offense fourth degree felony – imprisonment for eighteen months, six months of which shall not be suspended, deferred or taken under advisement. Id. § 66-8-102(G).
  • Fifth offense fourth degree felony – imprisonment for two years, one year of which shall not be suspended, deferred or taken under advisement. Id. § 66-8-102(H).
  • Sixth offense third degree felony – imprisonment for thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement. Id. § 1978, § 66-8-102(I).
  • Seventh or subsequent offense third degree felony – imprisonment for three years, two years of which shall not be suspended, deferred or taken under advisement. Id. § 66-8-102(J).

Other Penalties & Penalty Enhancers

  • First offense, Aggravated DUI* – In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail. Id. § 66-8-102(E); Id. § 66-8-102(D)(3).
  • Second offense, Aggravated DUI* – In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutive hours. Id. § 66-8-102(F)(1); Id. § 66-8-102(D)(3).
  • Third Offense, Aggravated DUI* – In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. Id. § 66-8-102(F)(2); Id. § 66-8-102(D)(3).

*’Aggrivated DUI’ triggered if implied consent is revoked. Id. § 66-8-102(D)(3).

Sobriety Checkpoints

In New Mexico, sobriety checkpoints are upheld under state and federal Constitution.

A legal turn which takes a motorist away from a checkpoint is not sufficient to establish a reasonable suspicion of criminal activity, but a legal turn in conjunction with other circumstances (such as a turn which does not fit with normal traffic patterns) may constitute a reasonable suspicion to justify an investigatory stop. State v. Anaya,217 P.3d 586(2009).

The New Mexico Supreme Court has ruled that only evidence seized in accordance with New Mexico law may be introduced as evidence in state court. Federal Border agents may not introduce evidence from immigration checkpoints carried out in such a way so as to curb constitutional guarantees granted by the state constitution. The New Mexico court overturned the conviction of a defendant arrested on a drug charge after evidence was seized from his vehicle at a border patrol stop. New Mexico considered a greater expectation of privacy in vehicles than federal law. State v. Cardenas-Alvarez, 25 P.3d 225 (2001).

Case Law

U.S. v. Aguilar, 301 F.Supp.2d 1263 (2004) — A person is “under the influence” within the meaning of New Mexico statute governing crime of driving under the influence of alcohol if, as a result of drinking liquor, the driver was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the driver and the public.

New Mexico Medical Marijuana Law

Status

 

Operational

Law Signed:

 2007

QUALIFYING CONDITIONS

  • Amyotrophic Lateral Sclerosis (Lou Gehrig’s disease)
  • Anorexia/cachexia
  • Arthritis
  • Cancer
  • Cervical dystonia
  • Chronic pain
  • Crohn’s disease
  • Epilepsy
  • Glaucoma
  • Hepatitis C
  • HIV/AIDS
  • Hospice patients
  • Huntington’s disease
  • Intractable nausea/vomiting
  • Multiple sclerosis
  • Painful peripheral neuropathy
  • Parkinson’s disease
  • Post-traumatic Stress Disorder
  • Spinal cord damage

PATIENT POSSESSION LIMITS

Eight ounces of medical cannabis (over a 90-day period)

HOME CULTIVATION

Yes, 16 plants (four mature, 12 immature)

STATE-LICENSED DISPENSARIES ALLOWED

Yes

STATE-LICENSED DISPENSARIES OPERATIONAL

Yes

MEDICAL MARIJUANA STATUTES

  • Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. § 30-31C-1 (2007)
  • N.M. Stat. Ann. §26-2B-3(F) (2007)

CAREGIVERS

Yes, primary caregiver is designated by patient’s practitioner as necessary to take responsibility for managing the well-being of a qualified patient with respect to the medical use of cannabis. Primary caregiver must be a resident of New Mexico. The caregiver must be 18 years of age or older.

ESTIMATED NUMBER OF REGISTERED PATIENTS

RECIPROCITY

No

CONTACT INFORMATION