NEW MEXICO

New Mexico defines “gambling” in N.M. STAT. ANN. § 30-19-2 (1978) as the following:

1. making a bet;
2. entering or remaining in a gambling place with intent to make a bet, to participate in a lottery or to play a gambling device;
3. conducting a lottery;
4. possessing facilities with intent to conduct a lottery.

In conjunction with this definition of gambling, it is necessary to supply the statute’s definition of “bet.” As defined by N.M. STAT. ANN. §30-19-1(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.” Thus if there is an element of chance involved in the activity, no matter how marginal, it constitutes gambling. This echoes the Any Chance Test.

Case law has expanded upon the stakes involved in gambling. In State v. Valdez, 51 N.M. 393, 185 P.2d 977 (1947), the court determined that central to the concept of gambling is the element of monetary or valuable consideration. Thus, the playing of games of chance without the opportunity to win money or valuable consideration negates the activity’s illegal quality. Supra.

An additional note made in N.M. STAT. ANN. §44-5-10 is that gaming includes “[b]ets and wagers on an election authorized by the constitution and laws of the United States, or by the laws of this state . . . .”

Commercial gambling is defined under N.M.S.A. §30-19-3(B). Commercial Gambling consists of either:

1. participating in the earning of or operating a gambling place;
2. receiving, recording or forwarding bets or offers to bet;
3. possessing facilities with the intent to receive, record or forward bets or offers to bet;
4. for gain, becoming a custodian of anything of value, bet or offered to be bet;
5. conducting a lottery where both the consideration and the prize are money, or whoever with intent to conduct a lottery, possesses facilities to do so; or
6. setting up for use, for the purpose of gambling, or collecting the proceeds of, any gambling device.

New Mexico distinguishes between gambling and commercial gambling. There are basically two distinctions between them. First, while an act may constitute gambling it may not constitute commercial gambling. Also, for an activity to be considered commercial gambling there must be more than a singular occurrence. Second, to be guilty of commercial gambling, it is not necessary to accept a bet—one only needs to receive, record, or forward the bets to another. State v. Owens, 103 N.M. 121, 703 P.2d 898 (1984).

Bookmaking is referred to under N.M. STAT. ANN. § 30-19-3(B) and it states that “Commercial Gambling consists of . . . receiving, recording or forwarding bets or offers to bet.”

In State v. Owens, 103 N.M 121, 703 P.2d 898 (1984) the court stated that section 30-19-3(B) of the statute was referring to the activities of bookmakers. Thus, bookmaking consists of “receiving, recording or forwarding bets or offers to bet.” N.M. STAT. ANN. 30-19-3(B). When someone is defined as a bookmaker, that person is engaging in commercial gambling. State v. Owens, at 125, 703 P.2d at 902. However this status “is not applicable simply by accepting an offer to bet.” Id. “What matters under [the] statute is the plural activity; it makes no difference whether the plural activity is or is not ‘social.’” Id. In this way a person who accepts one bet is not considered a bookmaker involved in commercial gambling, but a person who receives, records, forwards or offers to bet on more than one occasion (whether or not in a social context) has graduated from a misdemeanor to a felon. Id.

1. General Definition of Gaming Device

“Gaming device” is defined by N.M. STAT. ANN. § 60-2E-3(Q) as “associated equipment or a gaming machine and includes a system for processing information that can alter the normal criteria of random selection that affects the operation of a game or determines the outcome of a game . . . .” To further clarify, “associated equipment” is defined as “equipment or a mechanical electromechanical or electronic contrivance, component or machine used in connection with gaming[.]” N.M. STAT. ANN. §60-2E-3(E). Also pertinent to the definition of “gaming device” is that of a “gaming machine.” A “gaming machine” is “a mechanical, electromechanical or electronic contrivance or machine that, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate a game, whether the payoff is made automatically from the machine or in any other manner.” N.M. STAT. ANN. §60-2E-3(T). Lastly, the definition of a “game” is defined by the Act as the following:

[A]n activity in which, upon payment of consideration, a player receives a prize or other thing of value, the award of which is determined by chance even though accompanied by some skill; ‘game’ does not include an activity played in a private residence in which no person makes money for operating the activity except through winnings as a player[.]

State of N.M, ex rel. NM Gaming Control Bd. v. Ten Gaming Devices, 138 N.M. 426, 120 P.3d 848, 851 (2005).

A “gambling device” is defined by N.M. STAT. ANN. §30-19-1(C) as:

A contrivance other than an antique gambling device that is not licensed for use pursuant to the Gaming Control Act and that, for consideration, affords the play and 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.

Slot machines are not gambling devices when they are located in a private residence and when used only by residents and their invitees. New Mexico Gaming Control Bd. v. Ten Gaming Devices, 138 N.M. 426, 120 P.3d 848. This is true as long as (1) there is no consideration paid to the owners of the machines; and (2) players only made money through their winnings as a player. Id.

In Citation Bingo, Ltd. v. Otten, 121 N.M. 205, 910 P.2d 281 (1995), the court held that Power Bingo unites are gambling devices as defined under N.M. STAT. ANN. § 30-19-2(B).

Power Bingo consists of a plastic case, a keypad with numbers zero through nine, a small black and white display, a connection that allows the unit to accept data from a computer, and a computer chip capable of storing as many as two hundred simulated bingo "cards." These simulated cards are created using a program that randomly generates twenty-four numbers between one and seventy-five. All simulated cards are generated by a single computer and then downloaded into individual Power Bingo units. The precise number of cards a given unit will contain at any one time is determined by the number of cards purchased by the player using that unit.

Citation Bingo, Ltd. v. Otten, at, 206, 282 (1995).

2. Gambling Devices

Gambling devices include:

New Mexico does not appear to have a statutory, attorney general opinion, or case law definition of bookmaking.

1. Poker/card games

1. “Determination of winner and loser of bet by any method, whether by throwing dice, flipping copper, turning a card or running race, is ‘gambling.’” Joseph v. Miller, 1 N.M. 621 (1876). (emphasis added).

2. Games using dice

1. “Determination of winner and loser of bet by any method, whether by throwing dice, flipping a copper, turning a card or running a race, is ‘gambling.’” Joseph v. Miller, 1 N.M. 621 (1876). (emphasis added).

3. Billiards

1. Not mentioned in statute, case law or attorney general opinion.

4. Bowling

1. Not mentioned in statute, case law or attorney general opinion.

5. Darts

1. Not mentioned in statute, case law or attorney general opinion.

Gaming activity is permitted in New Mexico as long as it is conducted pursuant to either:

1. The Gaming Control Act; or
2. A state or federal law other than the Gaming Control Act that expressly permits the activity or exempts it from the application of the state criminal law or both. N.M.S.A §60-2E-4.

Gaming activity that is permitted in New Mexico includes the following:

1. Social Gaming

1. Social betting is not commercial gambling as defined by statute. State v. Owens, 103 N.M. 121, 703 P.2d 898 (1984).
2. Playing or operating a game of chance, not for money or consideration, is legal. State v. Valdez, 51 N.M. 393, 185 P.2d 977 (1947).
3. Recreational Bingo Exception; N.M. STAT. ANN. §30-19-7.2.
   1. A senior citizen group is permitted to organize and conduct bingo at a senior citizen center, provided that no person other than players participating in the bingo game receive or become entitled to receive any part of the proceeds, either directly or indirectly, from the bingo game, and no minor is allowed to participate in the organization or conduct of games or play bingo.

2. Charity Gaming

1. A sale or drawing of a prize at a fair held for the benefit of a church, public library or religious society or being, or for charitable purposes if all proceeds of the fair go to the benefit of the church, public library, religious society, or charitable purposes is permissible under N.M.S.A. §30-19-6(A).
2. A bona fide county fair which has been held annually at the same location for at least two years that offers prizes of livestock or poultry in connection with the fair is not illegal gaming as long as the proceeds of such drawings are used for the benefit of the fair. N.M.S.A §30-19-6(C).<

3. Chucky Cheese

1. It is lawful for a store to give customers tokens at no additional charge to customers purchasing merchandise even when the tokens are used in slot machines on the premises which offer the customer an opportunity to win prizes. (This also extends to bingo or keno cards.) This is because the customer is not providing consideration for the opportunity to win. This opinion also suggests that a person who requests a token, keno or bingo card without giving consideration would also be able to legally participate in the activity. New Mexico Op. Att’y Gen. 307 (1982).

4. Commercial gaming

1. A movie theatre that offers prizes of cash or merchandise for advertising purposes of the business to stimulate the business whether or not any consideration other than a monetary consideration in excess of the regular price of admission is exacted for participation in the drawings for prizes. N.M. STAT .ANN. §30-19-6(B).

5. Lottery

1. The New Mexico Lottery Act is exempt under N.M. STAT .ANN. §30-19-1(E).>
2. A lottery may be operated by an organization exempt from the state income tax under New Mexico Law as long as:
   1. It holds no more than two a year
   2. All gross proceeds minus the cost of prizes will be expended in the state for the benefit of the organization or public purposes
   3. No part of the proceeds of the lottery will go to any individual member or employee of any organization except as payment for the purchase of prizes at no more than the reasonable price. N.M. STAT .ANN. §30-19-6(D)

6. Horseracing

1. “Within the enclosure where any horse races are conducted, either as live on-track horse races or as horse races simulcast . . . and where the licensee has been licensed to use the pari-mutuel method or system of wagering on races, the pari-mutuel system is lawful, but only within the enclosure where races are conducted. N.M. STAT .ANN. §60-1-10(A)
2. Chapter 60, Article 1 is repealed effective July, 1, 2012. N.M. STAT .ANN. §60-1-26.

7. Other Pari-mutuel

1. It is illegal to use the pari-mutuel method without a license. N.M. STAT .ANN. §60-1-14.
2. No reference to greyhound racing was found in statute, attorney general opinion or case law.

No such information was found via statute, attorney general opinion, or case law.

The recovery of gambling debts is supported by New Mexico public policy considerations. This remedy is “designed to discourage gambling by making the gamekeeper’s winning insecure . . .” Mann v. Gordon, 15 N.M. 652, 110 P. 1043 (1910).

Under N.M. STAT. ANN §44-5-1, entitled Gambling losses; loser’s right to recover, it states that “[a]ny person who shall lose any money or property at any game at cards, or at any gambling device, may recover the same by action of debt, if money; if property, the action of trover, replevin or detinue.”

The loser himself is not the only party with rights to recover lost wages under New Mexico law. The father, mother, relations or guardian of a minor have the right to sue the establishment where the minor lost at gambling. The statute reads,

“[i]f any minor . . . shall lose any money or property in any grocery, store or dramshop by betting at cards, or any other gambling device, or by any other bet, wager or hazard whatever,” then the minor’s guardian “may sue for and recover from the keeper of such grocery, store or dramship, such money or property or the value thereof, so lost by such minor . . .”

N.M. STAT. ANN § 44-5-6.

However, there are some parties that, pursuant to public policy, cannot recover losses. The person who loans or advances money to someone for gambling, expecting to participate and share in the gambling transaction, “party becomes particeps criminis, and can not recover in a suit for the money loaned or advanced under such circumstances.” Appleton v. Maxwell, 10 N.M. 784, 65 P. 158 (1901). This supports the public policy considerations stated above. The intent of these laws is to make it riskier for someone to participate in gambling activities. By not allowing someone who wishes to fund a gambling act, the courts have made it less appealing for someone higher on the gambling “food chain” to loan or advance money to another.

Although the creditor cannot recover from the debtor himself, New Mexico law allows the creditor to pursue an action against the winner—thus making the winner’s “earnings” insecure. The statute states in pertinent part:

Any creditor to any person losing by any game at cards or any other gambling device . . . shall have the right to garnishee the winner in any proceeding by attachment or execution, and the same proceeding shall be had thereon as if such winner were a debtor of the party losing to the amount of money, property, rights or credits, that may appear to have been so won by said winner from the party losing.

N.M. STAT. ANN. § 44-5-12.

In order to encourage such actions, thus making gambling less appealing and winnings less secure, anyone who states a claim to property that was lost at gaming, whether by the loser, the loser’s spouse, children, relation, or friend, is exempt from punishment under the laws prohibiting gaming. An action for recovery of money or property must be brought within one year from the time the action accrued.

The only lawful casino gambling is in Tribal Casinos.

The following is a list of the crimes and their corresponding penalties.

1. Gambling is a petty misdemeanor. N.M. STAT. ANN. §30-19-2.
2. Commercial Gambling is a fourth degree felony. N.M. STAT. ANN. §30-19-3.
3. Permitting premises to be used for gambling is a petty misdemeanor. N.M. STAT. ANN. §30-19-4.
4. Dealing in gambling devices is a misdemeanor. N.M. STAT. ANN. §30-19-5.
5. “Dealing in gambling devices” means “manufacturing, transferring commercially or possessing, with intent to transfer commercially, any of the following:
   1. Anything known, purported or designed to evidence participation in gambling,
   2. Any device designed exclusively for gambling purposes or any part of a device including gambling devices, numbers jars, punchboards and roulette wheels. Id.
6. Fraudulently operating a lottery is a misdemeanor. N.M. STAT. ANN. §30-19-7. “Fraudulently operating a lottery” means “operating or managing any lottery which does not provide a fair and equal chance to all participants, or which lottery is conducted in a manner tending to defraud or mislead the public.” Id.Bribery of a participant in a contest is guilty of a fourth degree felony. N.M. STAT. ANN. §30-19-13. “Bribery of participant in a contest” means “the transferring or promise to transfer anything of value to any person with intent to influence thereby any participant in an contest to refrain from exerting his full skill, speed, strength or endurance in such a contest; or the agreeing or offering by a participant in a contest, to refrain from exerting his full skill, speed, strength or endurance, in return for anything of value transferred or promised to him or another. Id.
7. “It is unlawful for any person to, directly or indirectly, knowingly accept for a fee, property, salary or reward anything of value from another to be transmitted or delivered for gambling or pari-mutuel wagering on the results of a race, sporting event, contest or other game of skill or chance or any other unknown or contingent future event or occurrence whatsoever.” Violation of this provision is a fourth degree felony. N.M. STAT. ANN. §30-19-15.
8. Use of the pari-mutuel system without a license is a misdemeanor and a fine may be imposed not to exceed five thousand dollars or imprisonment for less than ninety days or both. N.M. STAT. ANN. §60-1-14.

Misdemeanor: punishable by imprisonment in the county jail for a definite term less than one year or the payment of a fine of no more than one thousand dollars, or both at the judge’s discretion. N.M. STAT. ANN. §31-19-1.

Petty misdemeanor: punishable by imprisonment in the county jail for a definite term, not to exceed six months, the payment of a fine not more than five hundred dollars, or both at the judge’s discretion. N.M. STAT. ANN. §31-19-1.