New Mexico is in the midst of navigating a shift in its criminal justice system. At the center of this is House Bill 49. The legislation seeks to heighten the stakes for individuals previously convicted of a felony and found in possession of a firearm.
Previously, being a felon in possession of a firearm in New Mexico has always been a serious charge. However, HB 49 will aim to ensure that the consequences are far more severe. The proposed law provides a key hook to understand how firearm possession laws work throughout the state and why these charges may escalate from a routine traffic stop to a decade-long prison sentence, far quicker than most people realise.
Let’s explore this change in more detail and what it could mean for those convicted of a crime.
From Third-Degree To A Second-Degree Felony
Under the current law, a felon who is caught with a firearm will typically face a third-degree felony. While this is certainly a serious charge, it typically carries a basic sentence of up to three years in prison. If the individual is classified as a “serious violent felon,” the sentence is usually fixed at no more than six years.
HB49 proposes a change which is specifically for violent offenders. If it comes to pass, the possession of a firearm by a “serious violent felon” would be reclassified as a second-degree felony.
What Does This Mean For Defendants?
The change, if it comes to pass, will have major ramifications for the defendant. Firstly, there will be an increased basic sentence because a second-degree sentence in New Mexico carries a basic sentence of nine years in prison. The bill also includes provisions that would mean that this nine year term is a mandatory minimum for first-time possession offenses by these individuals. This would further limit a judge’s ability to provide options including both suspended sentences and probation.
Subsequent offenses could also be adjusted up to first-degree felonies according to some drafts of the bill. This could mean that they could carry an 18 year basic sentence which is a staggering possibility.
The legislation is part of a broader, touch on crime initiative. The aim is to reduce gun violence in cities including Albuquerque as well as Las Cruces. That said anyone caught in the crosshairs could be at risk of serious implications if there is a high margin of error.
Who Is A “Serious Violent Felon” In New Mexico?
The term felon is broad. However, “serious violent felon” refers to a far more specific group of individuals. To be subject to the proposed HB 49 law, individuals must have a prior conviction for certain crimes including:
- Murder
- Shooter at or from a motor vehicle
- Kidnapping
- Armed robbery
- Aggravated battery
- Criminal sexual penetration
It’s important to note that New Mexico law includes out-of-state convictions. If you were convicted of a crime in either Texas or Arizona that would be considered a violent felony in New Mexico, then you could still be classified as a “violent felon.”
What Prosecutors Must Prove To secure a conviction for a felon in possession of a firearm, the prosecution can not just simply show that the gun was near the person charged with the crime. Instead, they are tasked with proving three elements beyond reasonable doubt.
First, they need to show that the defendant does have a valid felony conviction as part of their records. If rights were restored and the individual received a pardon, then this is usually a point of contention for the defense.
Second, they need to show that the defendant was in possession of a firearm or another destructive device. This could include options like a grenade or an explosive.
The possession also needs to be knowing. You cannot be convicted if you truly did not know that the weapon was there in the first place.
The Trap Of “Constructive Possession”
It’s often surprising for defendants to discover that they can be charged even if they weren’t holding the gun. New Mexico recognises constructive possession. This means that the gun was in a place over which the defendant had “dominion or control.” This could include areas like a glove box, underneath a mattress or even in a shared area of your property. This obviously opens up the possibility that the gun didn’t belong to the individual who was charged with the crime.
The requirements open up ways for defendants to fight back when they are charged with this particular crime. For instance, the defence can argue illegal search and seizure under the 4th amendment. Most firearms are discovered during either traffic stops or home searches. If the police did not have a valid warrant, then the firearm could be part of suppressed evidence.
The defence can also argue lack of possession. For instance, the firearm might have been found in a car with four passengers. In this case, the prosecutor will need to prove who actually possessed the gun. In the case of witnessed possession, there could also be issues with either mistaken identity or false accusations.
The Need For Legal Representation
Navigating the laws relating to firearm possession in New Mexico can be quite tricky. It requires more than just a general understanding of the law. Instead, you will need to make sure that you are ready to complete a deep dive of specific procedures in New Mexico courts. If HB 49 is passed, then it will provide a signal that the state is no longer ready to show any leniency to those who have prior records.
If you or someone who you love and care about is facing charges like this, it is important to act before the prosecution builds its case. You may need to challenge the legality of the police’s actions or negotiate a third-degree charge and stop it from becoming a life-altering second-degree conviction. Contact Lizzy Bunker today at for a free case evaluation.