A. Assault upon a peace officer consists of:

(1) an attempt to commit a battery upon the person of a peace officer while he is in the lawful discharge of his duties; or

(2) any unlawful act, threat or menacing conduct which causes a peace officer while he is in the lawful discharge of his duties to reasonably believe that he is in danger of receiving an immediate battery.

B. Whoever commits assault upon a peace officer is guilty of a misdemeanor.

History: 1953 Comp., § 40A-22-20, enacted by Laws 1971, ch. 265, § 1.

Cross references. — For assaults and batteries, see 30-3-1 to 30-3-5 NMSA 1978.

For petty misdemeanor of resisting or obstructing an officer, see 30-22-1 NMSA 1978.

For third-degree felony of assault by prisoner, see 30-22-17 NMSA 1978.

Sufficient evidence. — Where defendant approached a police officer with clenched fists, shouting and threatening to punch the officer, and defendant had chest-butted another officer, the evidence was sufficient to support defendant's conviction for assault upon a police officer. State v. Ford, 2007-NMCA-052, 141 N.M. 512, 157 P.3d 77, cert. denied, 2007-NMCERT-004, 141 N.M. 568, 158 P.3d 458.

Fact that defendant's gunfire hit police officers does not show an absence of evidence of assault, where there is evidence of an assault under Subsection A(2) of Section 30-22-21 NMSA 1978. State v. Brown, 1979-NMCA-038, 93 N.M. 236, 599 P.2d 389, cert. quashed, 93 N.M. 172, 598 P.2d 215, and cert. denied, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Extent of injuries: admissibility, in prosecution for assault or similar offense involving physical violence, of extent or effect of victim's injuries, 87 A.L.R.2d 926.

6A C.J.S. Assault and Battery § 81.