Escape from custody of a peace officer consists of any person who shall have been placed under lawful arrest for the commission or alleged commission of any felony, unlawfully escaping or attempting to escape from the custody or control of any peace officer.

Whoever commits escape from custody of a peace officer is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-22-10, enacted by Laws 1963, ch. 303, § 22-10.

Actual custody required. — The defendant, who was transported from jail to the state hospital for evaluation, from which hospital he escaped, could not be found guilty of escape from a peace officer. This section applies only to those who are in the actual custody or control of a peace officer while under arrest, and cannot be extended to legal or "constructive custody" as well. State v. Trujillo, 1987-NMCA-141, 106 N.M. 616, 747 P.2d 262.

Double jeopardy. — Combination of administrative punishment and judicial sentence following plea of guilty to escape from custody of peace officer (for escaping from penitentiary honor farm) did not amount to double jeopardy in violation of the state and federal constitutions. State v. Millican, 1972-NMSC-064, 84 N.M. 256, 501 P.2d 1076.

Escape from lawful arrest. — Although marijuana discovered by officer should have been suppressed, because the search and seizure was the fruit of an illegal detention, nonetheless arrests by the officer, after smelling and seeing the marijuana, were in the lawful discharge of his duties and thus defendants' convictions for escape from custody were proper. State v. Bloom, 1977-NMSC-012, 90 N.M. 226, 561 P.2d 925, rev'd on other grounds, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465.

Disposition of original charge immaterial. — Offense is committed if escape occurs after arrest for commission or alleged commission of a felony whether defendant is later found guilty of originally charged felony or not. State v. Martinez, 1968-NMSC-097, 79 N.M. 232, 441 P.2d 761.

Am. Jur. 2d, A.L.R. and C.J.S. references. — What constitutes "custody" under 18 USCS § 751(a) defining offense of escape from custody, 114 A.L.R. Fed. 581.