N.M. R. Crim. P. Magist. Ct. 6-403

As amended through August 23, 2024

Rule 6-403 - Revocation or modification of release orders

A.Scope. In accordance with this rule, the court may consider revocation of the defendant's pretrial release or modification of the defendant's conditions of release

(1) if the defendant is alleged to have violated a condition of release; or

(2) to prevent interference with witnesses or the proper administration of justice.

B.Revocation or modification of conditions of release.

(1) The court shall consider revocation of the defendant's pretrial release or modification of the defendant's conditions of release on motion of the prosecutor, on notice of a non-technical violation of a condition of release by a court pretrial services agency, or on the court's own motion.

(2) The defendant may file a response to the motion, but the filing of a response shall not delay any hearing under Paragraph D or E of this rule.

C.Issuance of summons or bench warrant ; temporary detention of certain defendants.

(1) On motion or notice of a non-technical violation of a condition of release by a court pretrial services agency, the court shall enter an order with specific findings about why amended or revoked conditions of release are unnecessary, or the court shall issue a summons and notice of hearing, unless the court finds that the interests of justice may be better served by the issuance of a bench warrant. The summons or bench warrant shall include notice of the reasons for the review of the pretrial release decision.

(2) A defendant previously released by any court in this state pending any felony charge or pending a charge for an enumerated misdemeanor, who is arrested and charged with a new felony or new enumerated misdemeanor defined in Rule 5-403.1 NMRA alleged to have occurred during the period of initial release, shall be held without conditions of release pending an initial hearing pursuant to Paragraph D of this rule. The initial hearing required by Paragraph D shall be conducted by the court with current jurisdiction over the defendant's initial conditions of release.

(3) A defendant previously released by any court in this state pending any felony charge or pending a charge for an enumerated misdemeanor defined in Rule 5-403.1 NMRA, who is charged but not arrested for a new felony or new enumerated misdemeanor alleged to have occurred during the period of initial release, shall be summonsed by the court with current jurisdiction over the defendant's initial conditions of release to an initial hearing required by Paragraph D of this rule, unless the court finds that the interests of justice may be better served by the issuance of a bench warrant. The initial hearing required by Paragraph D shall be conducted by the court with current jurisdiction over the defendant's initial conditions of release.

D.Initial hearing.

(1) The court shall hold an initial hearing as soon as practicable. If the defendant is in custody, the hearing shall be held no later than three (3) days after the defendant is detained 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. If the defendant is not in custody, the hearing shall be held no later than ten (10) days after the motion or notice of alleged violation is filed.

(2) At the initial hearing, the court may continue the existing conditions of release, set different conditions of release, or if the court is considering revocation of release, the court shall schedule an evidentiary hearing under Paragraph E of this rule, unless waived by the defendant.

(3) If at the conclusion of the initial hearing, the court continues or amends the defendant's conditions of release, then a written order continuing or amending the defendant's conditions of release shall be provided to the defendant at the time of release from custody if the defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody. If the defendant waives the evidentiary hearing under Paragraph E and the court finds that the conditions of release should be revoked, an order revoking conditions of release, including written findings of the individualized facts justifying revocation, shall be filed within three (3) days of the initial hearing.

E.Evidentiary hearing.

(1)Time. The evidentiary hearing shall be held as soon as practicable. If the defendant is in custody, the evidentiary hearing shall be held no later than seven (7) days after the initial hearing. If the defendant is not in custody, the evidentiary hearing shall be held no later than ten (10) days after the initial hearing.

(2)Defendant's rights. The defendant has the right to be present and to be represented by counsel and, if financially unable to obtain counsel, to have counsel appointed. The defendant shall be afforded an opportunity to testify, to present witnesses, to compel the attendance of witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. If the defendant testifies at the hearing, the defendant's testimony shall not be used against the defendant at trial except for impeachment purposes or in a subsequent prosecution for perjury.

F.Order at completion of evidentiary hearing. At the completion of an evidentiary hearing, the court shall determine whether the defendant has violated a condition of release or whether revocation of the defendant's release is necessary to prevent interference with witnesses or the proper administration of justice, and may:

(1) continue the existing conditions of release;

(2) set new or additional conditions of release in accordance with Rule 6-401 NMRA; or

(3) revoke the defendant's release, if the court

(a) finds either

(i) probable cause to believe that the defendant committed a federal, state, or local crime while on release; or

(ii) clear and convincing evidence that the defendant has willfully violated any other condition of release; and

(b) finds clear and convincing evidence that either

(i) no condition or combination of conditions will reasonably ensure the defendant's compliance with the release conditions ordered by the court; or

(ii) revocation of the defendant's release is necessary to prevent interference with witnesses or the proper administration of justice.

An order revoking release shall include written findings of the individualized facts justifying revocation and shall be filed within three (3) days of the evidentiary hearing. If the court continues or amends the defendant's conditions of release, then a written order continuing or amending the defendant's conditions of release shall be provided to the defendant at the time of release from custody if the defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody.

G.Evidence. The New Mexico Rules of Evidence shall not apply to the presentation and consideration of information at any hearing under this rule.

H.Review of conditions. If the magistrate court enters an order setting new or additional conditions of release and the defendant is detained or continues to be detained because of a failure to meet a condition imposed, or is subject to a requirement to return to custody after specified hours, the defendant may petition the district court for review in accordance with Rule 6-401(J) NMRA. The defendant may petition the district court immediately on the issuance of the magistrate court order and shall not be required to first seek review or reconsideration by the magistrate court. If, on disposition of the petition by the district court, the defendant is detained or continues to be detained because of a failure to meet a condition imposed, or is subject to a requirement to return to custody after specified hours, the defendant may appeal in accordance with Rule 5-405 NMRA and Rule 12-204 NMRA.

I.Expedited trial scheduling for defendant in custody. The magistrate court shall provide expedited priority scheduling in a case in which the defendant is detained pending trial. The court shall hold a status review hearing in any case in which the defendant has been held for more than sixty (60) days. The purpose of the status review hearing is to conduct a meaningful review of the progress of the case. If the court determines that insufficient progress has been made, then the court shall issue an appropriate scheduling order.

J.Petition to district court for review of revocation order. If the magistrate court issues an order revoking the defendant's release, the defendant may petition the district court for review under this paragraph and Rule 5-403(K) NMRA.

(1)Petition; requirements. The petition shall include the specific facts that warrant review by the district court and may include a request for a hearing. The petitioner shall promptly

(a) file a copy of the district court petition in the magistrate court;

(b) serve a copy on the district attorney; and

(c) provide a copy to the assigned district court judge.

(2)Magistrate court's jurisdiction pending determination of the petition. On the filing of the petition, the magistrate court's jurisdiction to set or amend conditions of release shall be suspended pending determination of the petition by the district court. The magistrate court shall retain jurisdiction over all other aspects of the case, and the case shall proceed in the magistrate court while the petition is pending.

(3)District court review. The district court shall rule on the petition in an expedited manner.

(a) Within three (3) days after the petition is filed, the district court shall take one of the following actions:

(i) issue an order affirming the revocation order; or

(ii) set a hearing to be held within ten (10) days after the filing of the petition and promptly send a copy of the notice to the magistrate court.

(b) If the district court holds a hearing on the petition, at the conclusion of the hearing the court shall issue either an order affirming the revocation order or an order setting conditions of release under Rule 5-401 NMRA.

(4)District court order; transmission to magistrate court. The district court shall promptly send the order to the magistrate court, and jurisdiction over the conditions of release shall revert to the magistrate court.

(5)Appeal. If the district court affirms the revocation order, the defendant may appeal in accordance with Rule 5-405 NMRA and Rule 12-204 NMRA.

N.M. R. Crim. P. Magist. Ct. 6-403

As amended, effective 9/1/1990; as amended by Supreme Court Order No. 08-8300-044, effective 12/31/2008; as amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or after7/1/2017; as amended by Supreme Court Order No. 18-8300-024, effective for all cases pending or filed on or after2/1/2019; as amended by Supreme Court Order No. 22-8300-015, effective for all cases pending or filed on or after 12/31/2022; as amended by Supreme Court Order No. S-1-RCR-2023-00021, effective for all cases pending or filed on or after 12/31/2023; as amended by Supreme Court Order No. S-1-RCR-2024-00068, effective for all cases pending or filed on or after 5/8/2024.

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 magistrate court in the normal course of business and not necessarily within the territorial jurisdiction of the court." Rule 6-401(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 magistrate 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 because of "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.

[Adopted 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. S-1-RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023.]

ANNOTATIONS The 2024 amendment, approved by Supreme Court Order No. S-1-RCR-2024-00068, effective May 8, 2024, added mandatory language to an existing provision regarding the court's duty to consider revocation of the defendant's pretrial release or modification of the defendants conditions of release on motion of the prosecutor or on the court's own motion, required the court to consider revocation or modification of conditions of release upon notice of a non-technical violation of a condition of release by a court pretrial services agency, required the magistrate court, when notified of a non-technical violation of a condition of release by a court pretrial services agency, to enter an order with specific findings when deciding that amended or revoked conditions of release are unnecessary, required the temporary detention of a defendant previously released by any court in this state who is arrested or charged with a new felony or enumerated misdemeanor defined in 5-403.1 NMRA, required the court with current jurisdiction over the defendant's initial conditions of release to conduct a hearing, provided for the timing of an initial hearing when a defendant is not in custody, provided that if the magistrate court is considering a revocation of conditions of release, the court shall schedule an evidentiary hearing, provided that at the conclusion of the initial hearing, the court shall make written findings and file a written order within three days of the initial hearing, provided the timing for an evidentiary hearing and the timing for the filing of the order that follows the evidentiary hearing, and required that that the written order continuing or amending the defendant's conditions of release be provided to the defendant at the time of release from custody if the defendant is in custody or within three days of the hearing if the defendant is not in custody; in Paragraph B, in the paragraph heading, deleted "Motion for", in Subparagraph B(1), after "The court", deleted "may" and added "shall", and after "motion of the prosecutor", added "on notice of a non-technical violation of a condition of release by a court pretrial services agency"; in Paragraph C, in the paragraph heading, added "temporary detention of certain defendants", in Subparagraph C(1), deleted "If the court does not deny the motion on the pleadings" and added "On motion or notice of a non-technical violation of a condition of release by a court pretrial services agency, the court shall enter an order with specific findings about why amended or revoked conditions of release are unnecessary, or", and added Subparagraphs C(2) and C(3); in Paragraph D, Subparagraph D(1), added "If the defendant is not in custody, the hearing shall be held no later than ten (10) days after the motion or notice of alleged violation is filed.", in Subparagraph D(2), after "different conditions of release, or", deleted "propose revocation of release" and added "if the court is considering revocation of release, the court shall schedule an evidentiary hearing under Paragraph E of this rule, unless waived by the defendant", deleted former Subparagraph D(3), which provided "If the court proposes revocation of release, the court shall schedule an evidentiary hearing under Paragraph E of this rule, unless waived by the defendant", and added Subparagraph D(3); in Paragraph E, Subparagraph E(1), added "If the defendant is not in custody, the evidentiary hearing shall be held no later than ten (10) days after the initial hearing."; and in Paragraph F, added "and shall be filed within three (3) days of the evidentiary hearing. If the court continues or amends the defendant's conditions of release, then a written order continuing or amending the defendant's conditions of release shall be provided to the defendant at the time of release from custody if the defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody". The 2023 amendment, approved by Supreme Court No. S-1-RCR-2023-00021, effective December 31, 2023, revised the committee commentary. The 2022 amendment, approved by Supreme Court Order No. 22-8300-015, effective December 31, 2022, required the magistrate court, in cases in which the defendant has been detained for more than sixty days pending trial, to conduct a status review hearing in order to review the progress of the case, and required the court to issue an appropriate scheduling order if the court determines that insufficient progress has been made in the case, made certain technical, nonsubstantive changes, and revised the Committee commentary; in Paragraph I, after "detained pending trial.", added "The court shall hold a status review hearing in any case in which the defendant has been held for more than sixty (60) days. The purpose of the status review hearing is to conduct a meaningful review of the progress of the case. If the court determines that insufficient progress has been made, then the court shall issue an appropriate scheduling order.". The 2018 amendment, approved by Supreme Court Order No. 18-8300-024, effective 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, and 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), 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"; added Subparagraph F(3)(a)(i) and new subparagraph designation "(ii)"; 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 added the committee commentary; in the heading, after "Revocation", added "or modification", and after "release", added "orders"; and deleted former Paragraphs A through C and added new Paragraphs A through J. The 2008 amendment, approved by Supreme Court Order No. 08-8300-044, effective December 31, 2008, added a new Paragraph B and designated former Paragraph B as Paragraph C. The 1990 amendment, effective for cases filed in the magistrate courts on or after September 1, 1990, in Paragraph A, deleted "Paragraph A of" in Subparagraph (1), deleted former Subparagraph (2), relating to imposing conditions authorized under Paragraph C of Rule 6-401, and redesignated former Subparagraph (3) as present Subparagraph (2); rewrote Paragraph B; and deleted Paragraph C, relating to record on review, and former Paragraph D, relating to evidence.

For form on motion for production, see Rule 9-409 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 567, 568. 22 C.J.S. Criminal Law § 352.