Are Magic Mushrooms Legal in New Mexico? Psilocybin Laws (2026)

Psilocybin mushrooms are not legal in New Mexico outside a state medical program that is not yet enrolling patients. Psilocybin and psilocin are Schedule I controlled substances under NMSA 1978, Section 30-31-6, and possessing any amount is a misdemeanor under Section 30-31-23(D) (a fourth degree felony in a posted drug-free school zone, Section 30-31-23(F)(4)), while distribution is a felony. The Medical Psilocybin Act of 2025 (Sections 26-2D-1 to 26-2D-11) creates a Department of Health program whose producers, clinicians and qualified patients are exempt from arrest and prosecution for participating; the statute requires the department to implement it by December 31, 2027. For other states, see our guide to psilocybin mushroom laws by state.

Information last verified on 2026-10-11. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New Mexico state law on psilocybin: the Controlled Substances Act (NMSA 1978, Chapter 30, Article 31), the Board of Pharmacy's schedule rule (16.19.20 NMAC), the Medical Psilocybin Act (Chapter 26, Article 2D) and the Department of Health's program rules (7.35.2 and 7.35.3 NMAC), the sentencing provisions in Chapter 31, and the driving statute, with one paragraph on federal law. It does not cover city or county measures, tribal law, employer or school policies, military rules or other states' laws.

Are magic mushrooms legal in New Mexico?

No. Psilocybin and psilocin are on New Mexico's Schedule I list, with an exception for the new medical program. Section 30-31-6(C) lists:

"(14) psilocybin, except as provided otherwise in the Controlled Substances Act and the Medical Psilocybin Act [26-2D-1 to 26-2D-11 NMSA 1978]; (15) psilocin, except as provided otherwise in the Controlled Substances Act and the Medical Psilocybin Act"

Subsection E adds that "the enumeration of psilocybin and psilocin in this schedule does not apply to their medical use as provided in the Medical Psilocybin Act." The 2025 act added that exception and Subsection E, effective June 20, 2025. The Board of Pharmacy's Schedule I rule, 16.19.20.65 NMAC (last amended June 13, 2023), also lists psilocybin and psilocyn; the Board's proposed amendments to that rule, set for an October 22, 2026 hearing, keep both entries.

The schedule names the compounds rather than mushrooms, but it covers "any material, compound, mixture or preparation that contains any quantity" of them (Section 30-31-6(C)), which includes mushrooms containing psilocybin or psilocin. Outside the medical program, the ordinary possession and distribution offenses apply, and New Mexico has no law that decriminalizes personal possession.

Psilocybin possession penalties

Possession of psilocybin is a misdemeanor in New Mexico regardless of amount, except inside a posted drug-free school zone, where it is a felony. Section 30-31-23(D) provides that a person who violates the possession section "with respect to any amount of any controlled substance enumerated in Schedule I, II, III or IV or a controlled substance analog of a substance enumerated in Schedule I, II, III or IV is guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a definite term less than one year, or both."

The statute uses "any amount," so New Mexico has no weight tiers for psilocybin possession. The exception is location. Under Section 30-31-23(F)(4), possessing any amount of a Schedule I substance such as psilocybin within a posted drug-free school zone, excluding private property residentially zoned or used primarily as a residence and excluding a person in or on a motor vehicle in transit through the zone, is a fourth degree felony. Drug-free school zone enhancements also apply to distribution (Section 30-31-22(D)) and to trafficking by manufacture (Section 30-31-20(C)).

First-offense conditional discharge

Section 30-31-28 lets a court defer a first possession case. If a person with no prior drug conviction under the laws of any state or the United States is found guilty under Section 30-31-23, the court "may, without entering a judgment of guilty and with the consent of the person, defer further proceedings and place him on probation" for up to one year. Successful completion leads to dismissal without an adjudication of guilt. The decision is the court's; it is not automatic.

Overdose reporting protection

Section 30-31-27.1 protects people who call for help. A person who in good faith seeks medical assistance for someone experiencing an alcohol- or drug-related overdose "shall not be arrested, charged, prosecuted or otherwise penalized" for possession under Section 30-31-23 or paraphernalia under Section 30-31-25.1(A), if the evidence was obtained as a result of the need for seeking medical assistance.

Sale and distribution penalties

Selling or giving away psilocybin is a felony. Section 30-31-22(A)(2) covers distribution and possession with intent to distribute "any other controlled substance enumerated in Schedule I, II, III or IV," which reaches non-narcotic Schedule I substances such as psilocybin:

A judge may raise or lower a basic sentence by up to one-third for aggravating or mitigating circumstances (Section 31-18-15.1), and prior felony convictions can add one, four or eight years (Section 31-18-17).

A "drug-free school zone" means "a public school, parochial school or private school or property that is used for a public, parochial or private school purpose and the area within one thousand feet of the school property line, but it does not mean any post-secondary school" (Section 30-31-2(W)).

Cultivation and the trafficking statute

Section 30-31-20 treats "manufacture" of any scheduled substance as trafficking: a second degree felony for a first offense, and a first degree felony for a later offense or when committed knowingly within a drug-free school zone (Section 30-31-20(B)-(C)). In State v. Pratt, 2005-NMCA-099, the New Mexico Court of Appeals reversed a conviction for trafficking psilocybin mushrooms by manufacture under Section 30-31-20(A)(1), holding that, because there was no evidence of extraction or chemical synthesis, the defendant's "acts of cultivating or growing mushrooms, even if by artificial means, are not prohibited by Section 30-31-20(A)(1)." The defendant's separate conviction for possession of drug paraphernalia was not appealed. The Act defines manufacture as production "by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination" (Section 30-31-2(L)). The decision concerned only the trafficking-by-manufacture charge; it did not address possession, distribution or drug paraphernalia, which remain separate offenses.

The Medical Psilocybin Act

The Legislature passed Senate Bill 219, the Medical Psilocybin Act, and the Governor signed it on April 7, 2025 (Laws 2025, chapter 73). It took effect June 20, 2025. Section 26-2D-2 states its purpose "to allow the beneficial use of psilocybin in a regulated system for alleviating qualified medical conditions." It is a medical program law, not decriminalization.

What the Act covers

The Act defines "psilocybin" as the naturally occurring compound "found in certain mushrooms, but does not include synthetic or synthetic analogs of psilocybin" (Section 26-2D-3(G)). Under Section 26-2D-3(I), a "qualifying condition" includes:

• major treatment-resistant depression;
• posttraumatic stress disorder;
• substance use disorders;
• end-of-life care; and
• other conditions approved by the department.

Who is protected, and how far

Section 26-2D-5(A) provides that "A producer, clinician or qualified patient shall not be subject to arrest, prosecution or penalty for participating in the program." Subsection B makes lawful "(1) a producer or clinician possessing or transporting not more than an adequate supply of psilocybin for medical purposes as defined by department rule; and (2) a clinician administering or a qualified patient taking psilocybin in an approved setting in accordance with the Medical Psilocybin Act or rules promulgated in accordance with that act."

The protection stops at the program's edges. Under Section 26-2D-6(A), participation does not relieve a producer, clinician or qualified patient from "criminal prosecution or civil penalties for activities not authorized in the Medical Psilocybin Act" or from liability "arising out of the operation of a motor vehicle if driving while under the influence of psilocybin."

Oversight, funds and FDA-approved products

The Secretary of Health appoints a nine-member medical psilocybin advisory board (Section 26-2D-8(A)). The Act creates a medical psilocybin treatment equity fund and a medical psilocybin research fund. Under Section 26-2D-4, FDA-approved products containing psilocybin are exempt from the Act, except that they are authorized for research funded through the research fund and for qualified patients whose treatment may be funded through the equity fund. New Mexico has no separate law that reschedules psilocybin when the FDA approves a psilocybin drug.

When the program starts

The statute and the Department of Health give different dates:

• The statute: the department shall "by December 31, 2027, implement the program" (Section 26-2D-7(C)).
• The Department of Health: its program page says "The program is set to be implemented by December 31, 2026."

The statutory date is the legal deadline; the 2026 date is the department's own target.

The program rules

The Department of Health is writing the program rules in two parts:

• 7.35.2 NMAC sets standards for psilocybin producers and testing laboratories. After an April 24, 2026 hearing it was adopted and took effect June 23, 2026 (New Mexico Register, Vol. XXXVII, Issue 12); amendments to it were part of the October 2, 2026 hearing.
• 7.35.3 NMAC proposes standards for patient enrollment and for certifying clinicians, practitioners, facilitators, healing centers and educational programs, along with amendments to 7.35.2 NMAC. Its public hearing was held on October 2, 2026.

As of October 11, 2026, the department's published materials show 7.35.3 NMAC as a proposed rule, so the program was not yet enrolling patients. Questions about the program go to the Department of Health's Medical Psilocybin Program page. For a comparison with the other regulated state programs, see ATMA CENA's New Mexico psychedelic legality page.

Recent bills

Two other 2025 psilocybin measures did not pass: SB 410 (crystalline polymorph psilocybin rescheduling) was tabled indefinitely, and House Memorial 58 (a study of psilocybin-based medication treatment) was postponed indefinitely. In 2026, House Bill 336, "Use of FDA-Approved Psilocybin," was not printed and did not become law. No psilocybin act passed in the 2026 regular session.

Research with psilocybin

Apart from the medical program, the Controlled Substances Act has a research route. Section 30-31-13(D) provides that "Practitioners or scientific investigators registered under the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 to conduct research with Schedule I substances may conduct research with Schedule I substances within this state upon furnishing the board evidence of that federal registration."

Psilocybin spores

Neither the Controlled Substances Act nor the Medical Psilocybin Act mentions spores. Schedule I names the compounds psilocybin and psilocin, and the Medical Psilocybin Act defines psilocybin as a compound found in certain mushrooms.

New Mexico's drug paraphernalia law can still apply. Section 30-31-2(T) defines drug paraphernalia to include equipment, products and materials of any kind used, intended for use or designed for use in propagating, cultivating or growing a controlled substance. Using or possessing drug paraphernalia with intent to use it for that purpose carries a $50 penalty assessment (Section 30-31-25.1(A), (C)). Delivering it, or possessing it with intent to deliver, knowing or under circumstances where one reasonably should know it will be used that way is a misdemeanor (Section 30-31-25.1(B), (C)), and a fourth degree felony when a person 18 or older delivers it to someone under 18 who is at least three years younger (Section 30-31-25.1(D)).

Federal psilocybin law

Psilocybin and psilocyn are also federal Schedule I substances, and the federal listing reaches "any material, compound, mixture, or preparation, which contains any quantity" of them (21 CFR 1308.11(d)). Federal simple possession of a controlled substance is a misdemeanor under 21 U.S.C. 844(a), punishable by up to one year and a minimum $1,000 fine for a first offense. No DEA or HHS rescheduling notice or rule for psilocybin appears in the Federal Register through October 11, 2026, and no psilocybin drug product had FDA approval as of October 2026. Executive Order 14401 (April 18, 2026) directs the Attorney General to review rescheduling of Schedule I products that complete Phase 3 trials, but it does not reschedule psilocybin. New Mexico does not follow federal rescheduling automatically: under Section 30-31-3(C), the Board of Pharmacy "may, by regulation, similarly control" a substance after federal action and a hearing. New Mexico's medical program does not change federal law.

Driving after using psilocybin

Section 66-8-102(B) makes it unlawful for a person "who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state." The standard turns on impairment, not on the presence of a drug, and a first conviction is punishable by up to 90 days in jail, a fine of up to $500, or both (Section 66-8-102(E)). Medical program participation is no shield for impaired driving (Section 26-2D-6(A)(2)). See our guide to New Mexico DUI laws.

Past convictions

A psilocybin possession or distribution conviction creates a criminal record, while a conditional discharge under Section 30-31-28 that is successfully completed ends in dismissal without an adjudication of guilt. For clearing older records, see our guide to New Mexico expungement laws.

Related

• Psilocybin mushroom laws by state
• New Mexico DUI laws
• New Mexico expungement laws
• New Mexico kratom laws

This article provides general legal information about New Mexico state law as of October 11, 2026. It is not legal advice. The Department of Health's program rules and start date may change. For advice about a specific situation, contact a lawyer licensed in New Mexico or the New Mexico Department of Health.

Last updated: 2026-10-11.

Frequently Asked Questions

Are magic mushrooms legal in New Mexico?

No. Psilocybin and psilocin are Schedule I substances under NMSA 1978, Section 30-31-6, and possessing any amount is a misdemeanor under Section 30-31-23(D), or a fourth degree felony in a posted drug-free school zone (Section 30-31-23(F)(4)). The 2025 Medical Psilocybin Act creates a Department of Health program whose participants are exempt, but the program was not yet enrolling patients as of October 2026.

What is the penalty for possession of psilocybin in New Mexico?

Possession of any amount is a misdemeanor punishable by a fine of $500 to $1,000, a definite jail term of less than one year, or both (Section 30-31-23(D)). In a posted drug-free school zone, possession of any amount is a fourth degree felony with a basic sentence of 18 months (Section 30-31-23(F)(4); Section 31-18-15(A)). A court may defer proceedings for a qualifying first offense under Section 30-31-28.

Is selling psilocybin a felony in New Mexico?

Yes. Distribution or possession with intent to distribute is a third degree felony for a first offense (basic sentence three years) and a second degree felony for later offenses (nine years) under Sections 30-31-22(A)(2) and 31-18-15(A).

What is the Medical Psilocybin Act?

It is New Mexico's 2025 law (SB 219, NMSA 1978, Sections 26-2D-1 to 26-2D-11) creating a Department of Health program for psilocybin for qualifying conditions such as major treatment-resistant depression, PTSD, substance use disorders and end-of-life care. Program participants are exempt from arrest and prosecution for participating; the statute requires the program to be implemented by December 31, 2027.

When does the New Mexico medical psilocybin program start?

The statute requires the Department of Health to implement it by December 31, 2027 (Section 26-2D-7(C)); the department's program page says it is set to be implemented by December 31, 2026. The patient enrollment rule, 7.35.3 NMAC, had a public hearing on October 2, 2026.

Is psilocybin decriminalized in New Mexico?

No. New Mexico has no decriminalization law. Outside the medical program, possession is a misdemeanor (a felony in a posted drug-free school zone) and distribution is a felony under the Controlled Substances Act.

Are psilocybin spores illegal in New Mexico?

Neither New Mexico's Controlled Substances Act nor the Medical Psilocybin Act mentions spores. Schedule I names the compounds psilocybin and psilocin and any material containing them. The drug paraphernalia law still applies: using or possessing materials intended for growing a controlled substance carries a $50 penalty assessment, and delivering them when one knows or reasonably should know of that use is a misdemeanor, or a fourth degree felony when an adult delivers to someone under 18 (Sections 30-31-2(T) and 30-31-25.1).