The New Mexico Court of Appeals found that spitting and throwing other bodily fluids at a police officer or corrections officer could meet the definition of battery as described in the statute at issue. However, absent a showing of actual injury on the part of the officer, or evidence that the battery constituted a “meaningful” challenge to the officer’s authority, penal sanctions may not be imposed. In this case, the court determined that it is up to the jury to determine whether or not the defendants’ conduct caused actual injury to an officer or rose to the level of a meaningful challenge to an officer’s authority. A mere unwanted touching, not considered within the context of the circumstances, cannot in itself be the basis for conviction. The court also noted that fear of contracting a communicable disease cannot be evidence of injury unless there is reason to believe that the person responsible for spitting, throwing urine, or other unwanted touching has some kind of communicable disease. Unfortunately, the implication here is that if there is evidence that the defendant does have a communicable disease, such as HIV, an officer’s fear of contracting the disease may be sufficient to demonstrate injury.
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