Violating an Order of Protection is its own crime. It doesn't matter whether the underlying incident that led to the order was ever proven in a criminal court, and it doesn't matter whether the person who asked for the order has since changed their mind about wanting contact. Once an order is in place, doing something it prohibits, showing up at a home or workplace it says to stay away from, sending a text it says not to send, is charged separately from whatever conduct started the case.
Under NMSA § 40-13-6, a first violation of an Order of Protection is a misdemeanor. A second or subsequent conviction carries a mandatory minimum of 72 consecutive hours in jail. That minimum is not suspendable and not deferrable; a judge cannot waive it, and it cannot be converted to probation. For someone with a prior violation on their record, that fact alone raises the stakes of a new charge considerably.
Many violation charges arise from contact that seems minor from the outside, a text asking to talk, a chance encounter at a shared child's school event, a message sent through a mutual friend. New Mexico courts still treat that contact as a violation if the order prohibits it, regardless of who initiated it or how it was intended. Patrick J. Martinez has defended violation charges in Bernalillo County courts for over 25 years and looks closely at what the order actually prohibits, who initiated the contact, and whether the alleged conduct meets the statute's requirements before any plea is discussed.
See Orders of Protection for what an order can and cannot require, and Family Law for how a violation charge can affect custody and parenting time in a pending or future family court matter.
What Counts as a Violation Under NMSA § 40-13-6
An Order of Protection spells out specific prohibited conduct, no contact, no proximity to a home or workplace, no firearm possession, and sometimes conditions on communication about children. A violation charge requires the state to prove the order was validly issued, the accused had notice of its terms, and the accused engaged in conduct the order prohibited.
Contact initiated by the protected party doesn't excuse a violation. If the order prohibits contact and the accused responds to a text or shows up somewhere the order says to avoid, that can still support a violation charge even though the protected party reached out first. Patrick examines the exact wording of the order and the sequence of events, since orders vary in what they specifically prohibit.
Penalties: First Offense Versus the 72-Hour Mandatory Minimum
A first conviction for violating an Order of Protection under NMSA § 40-13-6 is a misdemeanor, with standard misdemeanor sentencing exposure. A second or subsequent conviction changes the calculation entirely: the statute imposes a mandatory minimum of 72 consecutive hours in jail. That minimum cannot be suspended, deferred, or converted to probation by the judge. It is a floor, not a ceiling, and a defendant with a prior violation conviction is facing that mandatory jail time on any new conviction regardless of the specific circumstances.
Because the mandatory minimum turns on whether a prior violation conviction exists, confirming the accuracy and validity of any prior conviction is often a critical part of defending a second charge.
The Violation Charge Runs Separately From the Underlying Case
A violation charge is a distinct criminal case from whatever conduct originally led to the Order of Protection being issued. It can proceed even if the original domestic violence charge was dismissed, resulted in an acquittal, or was never filed as a criminal matter at all, since an order can be issued through the civil protection order process independent of any criminal prosecution.
This means a person can face a violation charge as their first and only criminal exposure in a domestic violence matter, without ever having faced the original assault or battery allegation in criminal court. Patrick evaluates the violation charge on its own terms, including whether the order itself was properly served and worded clearly enough to put the accused on notice of what was prohibited.