A. Negligent use of a deadly weapon consists of:
(1) discharging a firearm into any building or vehicle or so as to knowingly endanger a person or his property;
(2) carrying a firearm while under the influence of an intoxicant or narcotic;
(3) endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner; or
(4) discharging a firearm within one hundred fifty yards of a dwelling or building, not including abandoned or vacated buildings on public lands during hunting seasons, without the permission of the owner or lessees thereof.
B. The provisions of Paragraphs (1), (3) and (4) of Subsection A of this section shall not apply to a peace officer or other public employee who is required or authorized by law to carry or use a firearm in the course of his employment and who carries, handles, uses or discharges a firearm while lawfully engaged in carrying out the duties of his office or employment.
C. The exceptions from criminal liability provided for in Subsection B of this section shall not preclude or affect civil liability for the same conduct.
Whoever commits negligent use of a deadly weapon is guilty of a petty misdemeanor.
HISTORY:
1953 40A-7-3, enacted by Laws 1963, ch. 303, § 7-3; 1977, ch. 266, § 1; 1979, ch. 79, § 1; 1993, ch. 139, § 1.
Notes to Decisions
Constitutionality.
30-7-4A(2) NMSA 1978 was not unconstitutionally vague because it gave fair warning of the prohibited conduct when the terms “accessible” and “use” where given their ordinary meanings; further, because there was no constitutional right of intoxicated persons to carry firearms, by prohibiting this conduct, 30-7-4A(2) NMSA 1978 did not prohibit legitimate acts and was not overbroad. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, 1993 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 115 N.M. 228, 849 P.2d 371, 1993 N.M. LEXIS 56 (N.M. 1993).
Children.
Where a juvenile’s unsolicited statements were made when he was not the subject of a custodial interrogation, 32-1-27 (now 32A-1-16) NMSA 1978 was not applicable to either volunteered statements or answers to threshold questioning; therefore the juvenile’s convictions for a delinquent act of negligently using a deadly weapon contrary to 30-7-4 NMSA 1978 and violating a curfew ordinance were proper when he was not entitled to receive Miranda warnings. Doe v. State, 1984-NMSC-001, 100 N.M. 579, 673 P.2d 1312, 1984 N.M. LEXIS 1610 (N.M. 1984).
Construction.
Because 30-7-4A(3) NMSA 1978 provided alternative means for prosecuting the offense of endangering another by negligent use of a deadly weapon, it in effect created two criminal offenses, negligent use of a firearm and negligent use of an “other deadly weapon,” which were to be analyzed separately. State v. Franklin, 1993-NMCA-135, 116 N.M. 565, 865 P.2d 1209, 1993 N.M. App. LEXIS 133 (N.M. Ct. App. 1993).
Where former 1915 Code, § 1705 used the words “inhabited house” to require that the dwelling be occupied at the time of the offense, defendant’s motion to instruct a verdict of not guilty should have been granted, because defendant discharged a pistol within 300 yards of a house of prostitution, which was, at the very time when the offense was committed, not inhabited by people who were living there, and was not occupied by persons as a dwelling. State v. Adams, 1918-NMSC-069, 24 N.M. 239, 173 P. 857, 1918 N.M. LEXIS 33 (N.M. 1918).
Construction with other law.
Trial court correctly dismissed a firearm enhancement count in the information because the firearm enhancement statute, 31-18-16A NMSA 1978, was subsumed within the offense of involuntary manslaughter by negligent use of a firearm, under 30-2-3B and 30-7-4A(3) NMSA 1978. State v. Franklin, 1993-NMCA-135, 116 N.M. 565, 865 P.2d 1209, 1993 N.M. App. LEXIS 133 (N.M. Ct. App. 1993).
Discharge of firearm.
Defendant’s conviction for unlawfully discharging a pistol within 300 yards of an inhabited house in violation of former 1915 Code, § 1705 (now 30-7-4 NMSA 1978) was reversed with instructions to award a new trial because there was no evidence that the house was occupied by people as a dwelling when the offense was committed as required by 1915 Code, § 1705. State v. Adams, 1918-NMSC-069, 24 N.M. 239, 173 P. 857, 1918 N.M. LEXIS 33 (N.M. 1918).
Elements.
—Involuntary manslaughter.
“Negligent” in former 40A-7-3C, 1953 Comp. (now 30-7-4 NMSA 1978) means the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, 1973 N.M. App. LEXIS 747 (N.M. Ct. App. 1973), overruled, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358, 1993 N.M. LEXIS 68 (N.M. 1993).
Governmental powers.
Intoxicated defendant pointed a gun at another and appeared to be loading a gun, but his constitutional right to bear arms was not impermissibly infringed by his conviction for negligent use of a deadly weapon; the State permissibly exercised its police power by prohibiting the possession of firearms by persons under the influence of alcohol or drugs as a potential danger to the public. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, 1993 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 115 N.M. 228, 849 P.2d 371, 1993 N.M. LEXIS 56 (N.M. 1993).
Instructions.
Trial court properly refused the defendant’s requested instruction because the court was required to give uniform jury instructions on the elements without modification; further, the addition of the word “negligently” was unnecessary because 30-7-4A(2) NMSA 1978 defined it as carrying a firearm while under the influence of an intoxicant or narcotic, and the proscribed conduct was negligence per se. State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, 1993 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 115 N.M. 228, 849 P.2d 371, 1993 N.M. LEXIS 56 (N.M. 1993).
Negligent use of a weapon while under the influence of an intoxicant is defined, under former 40A-7-3 NMSA (now 30-7-4 NMSA 1978), as a petty misdemeanor; thus, where defendant, who was charged with second degree manslaughter, was denied an instruction on negligent use of a weapon while under the influence, the jury was left without a definition of an unlawful act not amounting to a felony, which was a necessary component of involuntary manslaughter, and omission of the requested instruction was error because it necessarily presupposed that defendant’s negligent use of the firearm while intoxicated was a felony. State v. Durham, 1971-NMCA-168, 83 N.M. 350, 491 P.2d 1161, 1971 N.M. App. LEXIS 777 (N.M. Ct. App. 1971).
Under the influence.
While “under the influence” was not defined in 30-7-4A(2) NMSA 1978, the court found guidance from authority interpreting that phrase in the context of motor vehicle operation; testimony by an officer who had experience with about 100 driving while intoxicated arrests testified that the defendant’s voice and speech patterns indicated that he was impaired, and two witnesses’ testimonies who saw the defendant drinking inside a bar were sufficient to establish that the defendant was “under the influence.” State v. Rivera, 1993-NMCA-011, 115 N.M. 424, 853 P.2d 126, 1993 N.M. App. LEXIS 9 (N.M. Ct. App.), cert. denied, 115 N.M. 228, 849 P.2d 371, 1993 N.M. LEXIS 56 (N.M. 1993).
Research References and Practice Aids
Cross references.
Definitions, 31-26-3 NMSA 1978.
New Mexico Law Review.
Criminal Law — The Child Abuse Statute Now Requires Criminal Negligence: Santillanes v. State, Gregory P. Williams, 24 N.M. L. Rev. 477 (1994).