N.M. R. Crim. P. Dist. Ct. 5-403
An order revoking release shall include written findings of the individualized facts justifying revocation.
N.M. R. Crim. P. Dist. Ct. 5-403
Committee commentary. - The 2017 amendments to this rule clarify the procedure for the court to follow when considering revocation of the defendant's pretrial release or modification of the defendant's conditions of release for violating the conditions of release. In State v. Segura, 2014-NMCA-037, ¶¶ 1, 24-25, 321 P.3d 140, overruled on other grounds by State v. Ameer, 2018-NMSC-030, ¶ 69, 458 P.3d 390, the Court of Appeals held that due process requires courts to afford the defendant notice and an opportunity to be heard before the court may revoke the defendant's bail and remand the defendant into custody. See also Tijerina v. Baker, 1968-NMSC-009, ¶ 9, 78 N.M. 770, 438 P.2d 514 (explaining that the right to bail is not absolute); id. ¶ 10 ("If the court has inherent power to revoke bail of a defendant during trial and pending final disposition of the criminal case in order to prevent interference with witnesses or the proper administration of justice, the right to do so before trial seems to be equally apparent under a proper set of facts."); State v. Rivera, 2003-NMCA-059, ¶ 20, 133 N.M. 571, 66 P.3d 344 ("Conditions of release are separate, coercive powers of a court, apart from the bond itself. They are enforceable by immediate arrest, revocation, or modification if violated. Such conditions of release are intended to protect the public and keep the defendant in line."), rev'd on other grounds, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939.
As used in Paragraph D, a "local detention center" is "one that is commonly used by the district court in the normal course of business and not necessarily within the territorial jurisdiction of the court." Rule 5-401(A)(3) NMRA.
Paragraph G provides that the New Mexico Rules of Evidence do not apply at a revocation hearing, consistent with Rule 11-1101(D)(3)(e) NMRA. As with courts in other types of proceedings in which the Rules of Evidence do not apply, a court presiding over a pretrial detention hearing is responsible "for assessing the reliability and accuracy" of the information presented. See United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (explaining that in a pretrial detention hearing the judge "retains the responsibility for assessing the reliability and accuracy of the government's information, whether presented by proffer or by direct proof"); State v. Ingram, 155 A.3d 597 (N.J. Super. Ct. App. Div. 2017) (holding that it is within the discretion of the detention hearing court to determine whether a pretrial detention order may be supported in an individual case by documentary evidence, proffer, one or more live witnesses, or other forms of information the court deems sufficient); see also United States v. Marshall, 519 F. Supp. 751, 754 (E.D. Wis. 1981) ("So long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into account in passing sentence."), aff'd, 719 F.2d 887 (7th Cir. 1983); State v. Guthrie, 2011-NMSC-014, ¶¶ 36-39, 43, 150 N.M. 84, 257 P.3d 904 (explaining that in a probation revocation hearing, the court should focus on the reliability of the evidence); State v. Vigil, 1982-NMCA-058, ¶ 24, 97 N.M. 749, 643 P.2d 618 (holding in a probation revocation hearing that hearsay untested for accuracy or reliability lacked probative value).
Paragraph I requires the district court to prioritize the scheduling of trial and other proceedings for cases in which the defendant is held in custody. See generally United States v. Salerno, 481 U.S. 739, 747 (1987) (concluding that the detention provisions in the Bail Reform Act, 18 U.S.C. § 3142, did not violate due process, in part due to "the stringent time limitations of the Speedy Trial Act,"18 U.S.C. § 3161); Am. Bar Ass'n, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-5.11 (3d ed. 2007) ("Every jurisdiction should establish, by statute or court rule, accelerated time limitations within which detained defendants should be tried consistent with the sound administration of justice."). This rule does not preclude earlier or more regular status review hearings. The purpose of the hearing is to determine how best to expedite a trial in the case. A meaningful review of the progress of the case includes assessment of the parties' compliance with applicable deadlines, satisfaction of discovery obligations, and witness availability, among other matters. If the court determines that the parties have made insufficient progress on these measures, then it shall issue an appropriate scheduling order.
Consistent with Rule 5-106 NMRA, a party cannot exercise the statutory right to excuse a judge who is reviewing a lower court's order setting or revoking conditions of release. See NMSA 1978, § 38-3-9 (1985). Paragraph L of this rule does not prevent a judge from filing a recusal either on the court's own motion or motion of a party. See N.M. Const. art. VI, § 18; Rule 21-211 NMRA.
The 1975 amendment to Rule 5-402 NMRA makes it clear that this rule may be invoked while the defendant is appealing a conviction. See Rule 5-402 and commentary.
[As amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017; as amended by Supreme Court Order No. 22-8300-015, effective for all cases pending or filed on or after December 31, 2022; as amended by Supreme Court Order No. 20 S-1-RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023.]
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-024, effective February 1, 2019, effective for all cases pending or filed on or after February 1, 2019, extended the period of time within which the court must hold an initial hearing when the defendant is not being held in the local detention center; authorized the court to revoke the defendant's release if the court finds that there is probable cause to believe that the defendant committed a crime; in Subparagraph D(1), after "as practicable, but", added "if the defendant is in custody, the hearing shall be held", and after "the defendant is detained", added "if the defendant is being held in the local detention center, or no later than five (5) days after the defendant is detained if the defendant is not being held in the local detention center"; in Subparagraph F(3), added new subparagraph designations "(a)" and deleted former subparagraph designation "(a)"; in Subparagraph F(3)(a), added new Subparagraph F(3)(a)(i) and new subparagraph designation "(ii)"; added new subparagraph designation "(b)", in Subparagraph F(3)(b), added new subparagraph designation "(i)" and redesignated former Subparagraph F(3)(b) as Subparagraph F(3)(b)(ii); and after subparagraph designation "(b)", added "finds that there is clear and convincing evidence". The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, clarified the procedures for the court to follow when considering revocation of the defendant's pretrial release or modification of the defendant's conditions of release for violating the conditions of release, and revised the committee commentary; in the rule heading, added "or modification" and "orders"; and deleted former Paragraphs A through D and added new Paragraphs A through L. The 2013 amendment, approved by Supreme Court Order No. 13-8300-046, effective December 31, 2013, changed the references to paragraphs of Rule 5-401 NMRA that specify conditions of release; and in Subparagraph (1) of Paragraph A, after "Paragraph", deleted "A" and adds "B" and after "B or", deleted "C" and added "D".
For encouraging violation of bail as a misdemeanor, see Section 30-22-18 NMSA 1978. Due process right to hearing on revocation of bail.- Where the State alleged that defendant violated the conditions of defendant's pretrial release by harassing the victim and by using drugs; the district court ordered defendant to submit to a urinalysis test; the pretrial services employee who administered the test reported to the court that defendant had tested positive for opiates; the district judge personally examined the test strip and agreed with findings of the pretrial services employee; based on that evidence, the district court found that defendant had violated the conditions of defendant's release and revoked bail and remanded defendant back into custody; the district court denied defendant's request for a full evidentiary hearing; defendant was denied any opportunity to examine witnesses, to present any evidence in opposition to the State's motion to revoke bail; to show any mitigating circumstances that might continue defendant's release from custody, or to defend against the revocation of bail; and the district court did not consider any alternatives to incarceration or whether additional conditions of release would adequately protect the community, the State's witnesses, and assure defendant's appearance at trial, defendant was denied defendant's procedural due process right to an adequate hearing prior to revocation of bail and remand into custody. State v. Segura, 2014-NMCA-037. This rule grants broad latitude to the trial court to revoke the release of an accused person if circumstances arising after the initial release indicate the release should not be continued. Exercise of that discretion provides no basis for disqualification. State v. Corneau, 1989-NMCA-040, 109 N.M. 81, 781 P.2d 1159. Revocation proper although defendant had not been charged, arrested, indicted or bound over for any crime allegedly committed while he was released. State v. David, 1984-NMCA-119, 102 N.M. 138, 692 P.2d 524. Law reviews. - For comment, "Criminal Procedure - Preventive Detention in New Mexico," see 4 N.M.L. Rev. 247 (1974). For comment, "The Constitution Is Constitutional - A Reply to the Constitutionality of Pretrial Detention Without Bail in New Mexico," see 13 N.M.L. Rev. 145 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 8A Am. Jur. 2d Bail and Recognizance §§ 1, 14, 31, 77, 92, 104, 106, 143, 144, 146 to 148. Bail: duration of surety's liability on posttrial bail bond, 32 A.L.R.4th 575.