DOMESTIC VIOLENCE AND FIREARMS IN NEW MEXICO
Federal law currently prohibits one from owning or possessing a firearm after being convicted of domestic violence. See 18 USC §922 (G)9 and 924 (A)(2).
This means that under federal law, one’s right to own or possess a gun is permanently stripped away with the conviction for domestic violence – even a misdemeanor offense. The problem with this law is that the punishment often exceeds the penalty.
For instance, NMSA § 30-3-15 defines Battery Against a Household Member as “. . the unlawful touching or application of force to the person of a household member, when done in a rude, insolent or angry manner.” This means that one can be charged and then convicted for the slightest intentional touching of another person – or causing an object to touch another person – provided that the touching occurs in a rude, insolent or angry manner.
I commonly field questions about gun rights from people who previously plead guilty to a charge of domestic violence. Some of these people were either unaware of the effects that the conviction would have on their right to own a gun, or simply did not care at the time of entering a plea because they never envisioned a future that required a gun. Suddenly life changes and for any number of reasons that person finds themselves in need of a gun.
Because of the harsh restrictions on gun rights, many programs are offered for individuals charged with any domestic violence offense, to ensure that their gun rights are not affected. One such program is the Early Intervention Program offered by the Metropolitan Court in Albuquerque New Mexico.
EARLY INTERVENTION PROGRAM AND GUN RIGHTS IN ALBUQUERQUE
The Early Intervention Program (“EIP”) is a counseling program offered in lieu of a plea bargain, or an adjudication of guilt. Assuming that one is eligible to enter EIP and chooses to do so, the case is essentially paused on the day of trial without a finding of guilt. One is then required to complete six months of supervised probation and required to complete the counseling requirement of either 24 group sessions, or 18 individual sessions. Once the program is complete the Domestic Violence charge is dismissed with prejudice (meaning that it cannot be re-filed) and one’s gun rights are not affected because there was never a finding of guilt.
DEFERRED SENTENCES AND THE RIGHT TO BEAR ARMS IN NEW MEXICO
Another common situation is that a person previously plead guilty to a domestic violence offense, and received a “deferred sentence” that included a term of probation. A deferred sentence is a sentence that is suspended until after a defendant has completed a period of probation. Under a deferred sentence, once one completes the required probation – or any additional requirements ordered by the court – the court enters an Order of Dismissal.
The New Mexico Supreme Court recently ruled that an Order of Dismissal following the completion of a deferred sentence is effectively a judicial pardon that restores one’s civil rights – including the right to bear arms. See United States v. Reese, 2014-NMSC-013, 326 P.3d 454 (N.M. 2014).
In other words, the New Mexico Supreme Court said in Reese that completing the terms of a deferred sentence automatically restores one’s right to bear arms when an Order of Dismissal is entered by the Court. This ruling is huge for gun owners, because federal law previously interpreted a deferred sentence as a conviction that permanently stripped one’s right to own a gun.
One issue that many individuals encounter with deferred sentences is the fact that rarely the Court will issue an Order of Dismissal on it’s own. In most situations, the Defendant is required to file the appropriate Order of Dismissal – either on their own behalf, or through counsel.
Without this Order of Dismissal being filed and then signed by the presiding judge, one can encounter future problems attempting to purchase, possess, or register for a concealed permit license – or an overall difficulty showcasing that one has completed the terms of the deferred sentence and that the underlying charge has been dismissed with prejudice without an adjudication of guilt or conviction.
(505) SANCHEZ IS HERE TO ANSWER YOUR QUESTIONS ABOUT DOMESTIC VIOLENCE CONVICTIONS AND GUN RIGHTS IN NEW MEXICO
Do you still have questions about domestic violence and firearms in New Mexico? The consequences of domestic violence in New Mexico often requires the experienced hand and knowledge that comes with years of courtroom practice. Matthew Legan Sanchez has the experience needed to handle your unique case. Sanchez can be reached by calling (505) SANCHEZ.
Domestic violence convictions and gun rights in new mexico
