As used in Chapter 30, Article 19 NMSA 1978:

A. "antique gambling device" means a gambling device manufactured before 1970 and substantially in original condition that is not used for gambling or commercial gambling or located in a gambling place;

B. "bet" means a bargain in which the parties agree that, dependent upon chance, even though accompanied by some skill, one stands to win or lose anything of value specified in the agreement. A bet does not include:

(1) bona fide business transactions that are valid under the law of contracts, including:

(a) contracts for the purchase or sale, at a future date, of securities or other commodities; and

(b) agreements to compensate for loss caused by the happening of the chance, including contracts for indemnity or guaranty and life or health and accident insurance;

(2) offers of purses, prizes or premiums to the actual contestants in any bona fide contest for the determination of skill, speed, strength or endurance or to the bona fide owners of animals or vehicles entered in such contest;

(3) a lottery as defined in this section; or

(4) betting otherwise permitted by law;

C. "gambling device" means a contrivance other than an antique gambling device that is not licensed for use pursuant to the Gaming Control Act [Chapter 60, Article 2E NMSA 1978] and that, for a consideration, affords the player an opportunity to obtain anything of value, the award of which is determined by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the device;

D. "gambling place" means a building or tent, a vehicle, whether self-propelled or not, or a room within any of them that is not within the premises of a person licensed as a lottery retailer or that is not licensed pursuant to the Gaming Control Act, one of whose principal uses is:

(1) making and settling of bets;

(2) receiving, holding, recording or forwarding bets or offers to bet;

(3) conducting lotteries; or

(4) playing gambling devices; and

E. "lottery" means an enterprise wherein, for a consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill. "Lottery" does not include the New Mexico state lottery established and operated pursuant to the New Mexico Lottery Act [Chapter 6, Article 24 NMSA 1978] or gaming that is licensed and operated pursuant to the Gaming Control Act. As used in this subsection, "consideration" means anything of pecuniary value required to be paid to the promoter in order to participate in a gambling or gaming enterprise.

History: 1953 Comp., § 40A-19-1, enacted by Laws 1963, ch. 303, § 19-1; 1965, ch. 37, § 1; 1985, ch. 108, § 1; 1995, ch. 155, § 37; 1997, ch. 190, § 66; 2002, ch. 102, § 1.

Cross references. — For the Indian Gaming Compact, see 11-13-1 NMSA 1978.

The 2002 amendment, effective March 5, 2002, substituted "manufactured before 1970" for "twenty-five years of age or older" in Subsection A.

The 1997 amendment, effective June 20, 1997, deleted former Subsection C defining "lottery", redesignated former Subsections D and E as Subsections C and D, inserted "that is not licensed for use pursuant to the Gaming Control Act and" near the beginning of Subsection C, inserted "that is not within the premises of a person licensed as a lottery retailer or that is not licensed pursuant to the Gaming Control Act" in the first sentence of Subsection D, added Subsection E, and made minor stylistic changes throughout the section.

The 1995 amendment, effective July 1, 1995, in Subsection C, inserted "other than the New Mexico state lottery established and operated pursuant to the New Mexico Lottery Act" and made minor stylistic changes throughout the section.

The 1985 amendment added Subsection A, redesignated former Subsections A, B, C, and D as present Subsections B, C, D, and E, respectively, and inserted "other than an antique gambling device" following "contrivance" near the beginning of Subsection D.

Due process. — "Gambling device" is defined with acceptable clarity, given the legislative dilemma of drafting criminal statutes general enough to escape legalistic evasion while specific enough to give fair warning of proscribed conduct. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.

Meaning of "lottery". — A lottery was a game of hazard in which small sums of money were ventured for chance of obtaining a larger value in money or other articles, and the test employed for detecting a lottery was the presence of a prize, chance and consideration, the presence of all three compelling its characterization as such. State v. Jones, 1940-NMSC-066, 44 N.M. 623, 107 P.2d 324 (decided under prior law).

Test employed. — The test employed for detecting a lottery is the presence of three elements, prize, chance and consideration. State v. Jones, 1940-NMSC-066, 44 N.M. 623, 107 P.2d 324 (opinion rendered under prior law).

Baseball pools. — Where tickets were sold in books of 120, to be sold at 10 cents each, entitling the holder to a $9.00 prize from a lucky ticket containing the names of two ball teams making the high scores each day, there was a lottery, although the tickets themselves did not convey the information as to the prize. State v. Butler, 1938-NMSC-017, 42 N.M. 271, 76 P.2d 1149.

"Bank Night" scheme. — Scheme operated under name "Bank Night" involved an element of "consideration" which together with elements of "prize" and "chance," constituted the scheme of a "lottery" under prior law. State v. Jones, 1940-NMSC-066, 44 N.M. 623, 107 P.2d 324.

Meaning of "gambling device". — No contrary intent appearing in the statute, the ordinary and usual meaning of the term "gambling devices" is to be used, that is, those devices which are normally associated with gambling. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.

Where there is no allegation that owners of slot machines were involved in illegal gambling, and the only persons who played the slot machines were the owners and their social acquaintances, and there is no allegation or proof that anyone playing a machine made any money except through winnings as a player, no "consideration" was paid to owners to play a machine so there is no "gambling device". State ex rel. N.M. Gaming Control Bd. v. Ten (10) Gaming Devices, 2005-NMCA-117, 138 N.M. 426, 120 P.3d 848, cert. quashed, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.

Computer terminal was not a gambling device. — Where defendant owned and operated an internet cafe where customers could purchase time on the internet using computer terminals in the cafe as a promotion, defendant gave customers free entries into a sweepstakes that awarded cash prizes determined by chance; defendant's computer system pre-determined the winning sweepstakes entries; sweepstake entries were delivered to customers in the form or a "swipe card" that was swiped into a reader for visual display at the caf 's counter or at individual computer terminals; money could not be inserted into the computer terminals to participate in the sweepstakes; additional sweepstake entries could only be obtained from the caf 's counter and then downloaded upon the "swipe card"; and the computer terminals gave consumers anything of value, defendant's computer terminals were not a gambling device. State v. Vento, 2012-NMCA-099, 286 P.3d 627, cert. granted, 2012-NMCERT-009.

Exchange of pull tabs for free games won on video machines. — The practice of exchanging pull tabs for free games won on electronic video games was impermissible under the Bingo and Raffle Act, Chapter 60, Article 2B NMSA 1978, since to permit operation of the machines for such purpose would be to sanction commercial gambling. American Legion Post No. 49 v. Hughes, 1994-NMCA-153, 120 N.M. 255, 901 P.2d 186, cert. quashed, 120 N.M. 117, 898 P.2d 1255.

Extent of pari-mutuel exemption. — It was the intention of the legislature to exempt pari-mutuel betting from the general provisions of the gambling laws only when done by patrons who are physically present at the track; one who is not personally present at the track is not a patron thereof and does not come within the pari-mutuel exemption at Section 60-1-10 NMSA 1978. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922 (decided under prior law).

Off-track betting illegal. — The giving of money to defendant and his transporting it to the place of betting was inseparable from the act of placing the bet itself; to sanction such a procedure would permit a mode of gambling not allowed by the pari-mutuel statute. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922 (decided under prior law).

Illegal gambling contract unenforceable. — The public policy of New Mexico is to restrain and discourage gambling and must override the rule which prevents unjust enrichment, particularly where there is a choice between that which is considered to be for the benefit of the public at large as distinguished from any benefit to an individual litigant. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922 (decided under prior law).

Applicability of gambling laws to Indians. — State law did not permit authorization of "all forms of casino-style games" in compacts with Indian tribes negotiated by the governor pursuant to the federal Indian Gaming Regulatory Act. State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11.

State statutes are not superseded by federal laws relating to lottery broadcasting; being a form of gambling, lotteries are primarily a matter of state interest and policy under the police power. 1963 Op. Att'y Gen. No. 63-141 (opinion rendered under prior law).

Since there is no indication of a congressional intent to reserve regulation of the broadcasting of lotteries to the federal government, states may regulate such broadcasts to the same extent as the broadcasting of other gambling information. 1963 Op. Att'y Gen. No. 63-141 (opinion rendered under prior law).

Meaning of "lottery". — A lottery has been defined as a plan which contains the elements of prize, chance and consideration. 1963 Op. Att'y Gen. No. 63-141 (opinion rendered under prior law).

Test employed. — The test employed for detecting a lottery is the presence of three elements, prize, chance and consideration. 1965 Op. Att'y Gen. No. 65-196; 1960 Op. Att'y Gen. No. 60-05; 1956 Op. Att'y Gen. No. 56-6516, 1956 Op. Att'y Gen. No. 56-6347, 1955 Op. Att'y Gen. No. 55-6168 (opinion rendered under prior law).

Consideration present even without purchase from promoter. — The consideration necessary for a lottery may be present even where no purchase is required as a condition precedent to eligibility for a prize. 1963 Op. Att'y Gen. No. 63-141 (opinion rendered under prior law).

Where a lottery plan involves increased traffic to the participating stores with a necessarily resultant increase in sales, therein lies the financial advantage to the promoter and thus consideration as defined in this section. 1963 Op. Att'y Gen. No. 63-141 (opinion rendered under prior law).

Broadening of exclusions. — By the 1965 amendment to this section the legislature intended to liberalize or broaden the definition of activities that were not prohibited by law. 1965 Op. Att'y Gen. No. 65-196.

Definition of lottery. — The definition of lottery was intended to broaden the exclusions for certain types of operations which were not basically an attempt to hazard a sum for the hope of a larger sum. 1969 Op. Att'y Gen. No. 69-60.

Substance of scheme important. — In analyzing an operation to determine whether or not it is a lottery, the court must look to the substance of the scheme as well as the form. 1969 Op. Att'y Gen. No. 69-60.

Activity primarily a lottery. — When a promoter charges more than the usual price of an innocent activity and advertises that prizes will be drawn by lot and awarded to the holder of the ticket for the activity then the activity is primarily a lottery. 1969 Op. Att'y Gen. No. 69-60.

Drawing hotel room number. — Where plan was to assign numbers to each of the rooms of a motel, there being some 16 rooms, and as the rooms were filled in the course of the evening, to conduct a drawing, with the person occupying the room number corresponding with the number drawn from the hat to receive his room rent free for that night, the scheme constituted a lottery and was, therefore, illegal under former gambling laws. 1956 Op. Att'y Gen. No. 56-6347.

Store punch card. — Scheme whereby a punch card is given to each customer purchasing merchandise in a store or chain of stores, and each time the customer purchases items from the store, the dollar amount of the purchase is punched out on the card until the customer's purchases reach a certain total, at which point the large seal on the card is removed under which is found one of three dollar amounts representing the customer's prize, or in the alternative, some simple question the answer to which entitles the customer to a prize constituted a lottery under former gambling laws. 1960 Op. Att'y Gen. No. 60-05.

Nature of "pecuniary value" intended. — Pecuniary value must be paid over and above payment for a legal activity before the giving of a door prize at a legal activity is to be considered an illegal lottery. 1969 Op. Att'y Gen. No. 69-60.

Pecuniary value. — Element of pecuniary consideration for the sole purpose of engaging in the gambling enterprise must be present. 1965 Op. Att'y Gen. No. 65-196.

Hazarding of small sum for larger. — The substance of paying something of pecuniary value in order to participate in the enterprise is that the small sum is hazarded in the hope of winning a larger sum. 1969 Op. Att'y Gen. No. 69-60.

No pecuniary value paid. — If one pays the normal going rate for a dinner or theater ticket or style show and a prize or prizes are given in conjunction with those legal activities, one has not paid to the promoter anything of pecuniary value in order to participate in the chance at the prize. 1969 Op. Att'y Gen. No. 69-60.

Drawing of numbered tickets of admission to the state fair, for a prize, in which those individuals who had purchased tickets would be entitled to participate, would be legal, since no consideration would be paid for the privilege of participating in the opportunity to win a prize. 1965 Op. Att'y Gen. No. 65-196.

Specific intent understood. — The narrow definitions of gambling device and dealing in gambling devices in the New Mexico law require a specific intent to use or transfer for use with a gambling purpose, and use for entertainment alone would not subject the parties to prosecution under the gambling statutes. 1969 Op. Att'y Gen. No. 69-54.

Chance to win prize determinative. — If there was no opportunity to obtain anything of value when a gambling device was used for entertainment, then the item would not be a gambling device within the definition of this section. 1969 Op. Att'y Gen. No. 69-54.

Savings and loan promotion legal. — A savings and loan association may give every person who deposits a certain amount in a savings account a chance to win a four-day all-expense-paid trip at a drawing without violating the New Mexico gambling laws. 1971 Op. Att'y Gen. No. 71-109.

Selling of souvenir tokens. — Where the element of chance is absent, slot machines converted into vending machines which will sell souvenir tokens do not fall within the definition of gambling device. 1972 Op. Att'y Gen. No. 72-39.

Applicability of gambling laws to Indians. — Where federal law is silent on gambling and state law prohibits it, and such gambling is carried on by Indians in Indian country, the gambling is illegal, with exclusive jurisdiction resting in the federal courts unless the gambling has already been punished by the tribal court. 1965 Op. Att'y Gen. No. 65-221 (opinion rendered under prior law).

Under the federal Assimilative Crimes Act, there would not be a conflict between federal and state laws on gambling if carried on in Indian country and gambling is illegal in the state. 1965 Op. Att'y Gen. No. 65-221 (opinion rendered under prior law).

State courts would have jurisdiction over a non-Indian charged with conducting a gambling operation on an Indian reservation. 1965 Op. Att'y Gen. No. 65-221 (opinion rendered under prior law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Scheme for advertising or stimulating legitimate business as a lottery, 48 A.L.R. 1115, 57 A.L.R. 424, 103 A.L.R. 866, 109 A.L.R. 709, 113 A.L.R. 1121.

What is a game of chance, 135 A.L.R. 104.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking, 53 A.L.R.4th 801.

Private contests and lotteries: entrants' rights and remedies, 64 A.L.R.4th 1021.

Validity, construction, and application of statute or ordinance prohibiting or regulating use or occupancy of premises for bookmaking or pool selling, 82 A.L.R.4th 356.