Wrongful Death · Fatal Crash · New Mexico
A Criminal Case Is Not the Same as a Wrongful Death Claim
After a fatal crash, the state's criminal case and the family's civil wrongful death claim can run at the same time. Here is how they differ and why the family may need to act on both.
By Josh Wood · Published October 30, 2026
A criminal case against the driver and a wrongful death claim are two separate cases. The state can bring criminal charges. In New Mexico, a wrongful death action for money damages is brought by the personal representative of the deceased person. Neither one has to finish before the other moves forward, and neither one automatically decides the other.
If you lost someone in a fatal crash in New Mexico, you may hear about both at once. This page explains how the two cases differ and what families often need to know early.
The Short Answer: Two Separate Cases
A criminal case and a wrongful death claim are separate proceedings with different purposes. The criminal case asks whether the driver broke a criminal law. The wrongful death claim asks whether the driver’s wrongful act, neglect, or default caused the death, and what damages the law allows.
The state brings criminal charges, not the family. Under New Mexico’s wrongful death statute, the person who would have been liable if the death had not happened can be sued for damages.
One crash can lead to both kinds of case. That’s why families often hear about both at once. It does not mean one case must come first.
If you're weighing a civil claim while the driver's criminal case is still open, our team can talk through your options with you. Talk it through with our team — the first consultation is free, confidential, and carries no obligation.
What the Criminal Case Is For
A criminal case asks whether the state can prove the driver broke a law. The state decides whether to file charges, and the family does not control that choice.
New Mexico makes it unlawful to drive under the influence of intoxicating liquor. Penalties for a first conviction can include jail time, fines, community service, and other conditions, as set out in NMSA 1978, § 66-8-102.
A driver in a crash that causes injury or death must stop at the scene and stay there. Failing to stop where the crash causes great bodily harm or death is a fourth degree felony under NMSA 1978, § 66-7-201; a knowing failure to stop in that situation is a third degree felony.
Whether charges are filed, reduced, or dismissed depends on the facts and the prosecutor’s decisions. The family is not a party to the criminal case.
What the Wrongful Death Claim Is For
The wrongful death claim seeks money damages for losses caused by a death. It is a civil action, and the law sets out who may bring it.
Every action mentioned in Section 41-2-1 NMSA 1978 shall be brought by and in the name of the personal representative of the deceased person, as NMSA § 41-2-3 provides. The jury may award compensatory and exemplary damages. It looks at the financial loss to surviving family members and at the circumstances of the wrongful act.
Loss of consortium is a related but separate claim. Those damages belong to the family member who had the close relationship, not to the estate. See Thompson v. City of Albuquerque.
Different Standards of Proof
A criminal case and a civil claim use different standards of proof.
Causation is central in the civil claim. New Mexico’s jury instruction says an act is a cause of injury if it contributes to bringing about the injury and the injury would not have occurred without it, and the act must be reasonably connected as a significant link to the injury. The act does not have to be the only cause. See UJI 13-305 NMRA. The act does not have to be the only cause. See UJI 13-305 NMRA.
A case can end one way in criminal court and still move forward in civil court. Families should not treat one result as the answer to both.
Does the Criminal Case Have to Come First?
No. A wrongful death claim does not have to wait for criminal charges. Families do not have to choose one path before the other.
Timing depends on the facts. It may turn on whether charges are filed, how long the investigation takes, and whether the criminal case is still pending.
The civil clock is the bigger timing question. A wrongful death action must be brought within three years after the cause of action accrues, and it accrues as of the date of death, under NMSA 1978, § 41-2-2.
Every action instituted under this statute must be brought within three years after the cause of action accrues, and the cause of action accrues as of the date of death (NMSA § 41-2-2). Families should not assume the deadline waits for the criminal case to end.
How Evidence Moves Between the Two Cases
Evidence from a crash does not move automatically from the criminal file into a civil case. New Mexico limits how crash reports can be used. Except as the statute provides, no accident report may be used as evidence in any trial, civil or criminal, arising out of an accident. See NMSA 1978, § 66-7-213.
The statute does allow a certified copy of the investigating officer’s report to be introduced in certain civil actions or arbitrations involving uninsured motorist coverage, to prove that the owner or operator of the other motor vehicle involved in the accident is either insured or uninsured.
Families should not assume that facts in a criminal file are available or admissible in a civil case.
Not sure what your next step is?
Talk it through with our team — the first consultation is free, confidential, and carries no obligation.
What a Criminal Outcome Does and Does Not Decide
A criminal outcome does not automatically decide the civil claim.
The civil claim still requires proof. In New Mexico, a negligence claim generally requires a duty owed to the plaintiff, a breach of that duty, and a breach that is a proximate cause and cause in fact of the damages. See Herrera v. Quality Pontiac.
A cause of an injury is one that is reasonably connected as a significant link to the injury. It need not be the only explanation for the injury, nor the reason that is nearest in time or place. Each civil question needs its own proof, whatever happened in the criminal court.
Talking With a Lawyer About the Civil Claim
Families often want guidance on the civil claim while the criminal case is still open. Useful questions include the filing deadline, who may bring the claim, what evidence is available, and how the criminal case may affect timing. Raising these early helps families plan.
Josh Wood, licensed in New Mexico and Arizona, is responsible for the content of this page. You can learn more at elgringolaw.com.
Quick Answers
Does the driver have to be convicted first?
No. The wrongful death statute ties liability to a wrongful act, neglect, or default that causes a death.
How long do families have to file?
Under New Mexico’s wrongful death statute, an action must be brought within three years after the cause of action accrues, and the cause of action accrues as of the date of death (NMSA § 41-2-2).
Who files the claim?
The personal representative of the deceased person brings the action.
Can the crash report be used in court?
Generally not as evidence, except as the statute provides.
Our free, confidential initial consultation comes with no obligation to continue. If you’re weighing a civil claim while the driver’s criminal case is still open, our team can talk through your options with you. Reach out through our contact form.
Two Tracks After a Fatal Crash
The criminal case
The state brings criminal charges. The case is about public safety and punishment, and the family is not a party to it.
The wrongful death claim
The family brings a civil claim for losses caused by the death, such as lost income, lost support, and funeral costs.
Different parties
A prosecutor represents the state. A wrongful death claim is brought by the family, through the person authorized to file it.
Different goals
Criminal court asks what happened and what penalty applies. A civil claim focuses on the family's losses and who should pay for them.
Don't Assume One Case Covers the Other
Questions Families Often Ask
Do we need to wait for criminal charges?
Families often ask whether they should wait. Every case is different, and our team can explain how the timing of a criminal case may affect a civil claim.
Who can bring a wrongful death claim?
The right person to file depends on the family's situation. We can review the facts with you during a free consultation.
What evidence matters most?
Police reports, crash data, medical records, and witness statements often matter. Preserving them early can help the family understand what happened.
Will the case go to court?
Some cases resolve without a trial and some do not.