N.M. R. Mun. Ct. P. 8-111

As amended through November 1, 2024

Rule 8-111 - Non-attorney prosecutions

A.Law enforcement officers. Law enforcement officers may file criminal complaints against persons in the municipal court that has jurisdiction over the alleged offense. Criminal complaints shall be limited to charges within the jurisdiction of the court. Law enforcement officers may prosecute misdemeanor criminal complaints they have filed in municipal court, except that no law enforcement officer may prosecute any case that involves a charge of driving under the influence of intoxicating liquor or drugs.

B.Other authorized prosecutions. A municipal officer or employee may appear and prosecute any petty misdemeanor proceeding on behalf of the municipality if the municipality has authorized the officer or employee to institute or cause to be instituted an action on behalf of the governmental entity, except that no municipal officer or employee may prosecute through a non-attorney any case that involves a charge of driving under the influence of intoxicating liquor or drugs.

C.Trial procedures. In cases where law enforcement officers and non-attorney municipal employees are authorized under Paragraphs A and B of this rule to prosecute complaints they have filed, those officers and employees shall be permitted to testify and present evidence to the court. In the court's discretion, such parties may also ask questions of witnesses, either directly or through the court, and may make statements bringing pertinent facts and legal authorities to the court's attention.

N.M. R. Mun. Ct. P. 8-111

Adopted, effective 7/1/1988; as amended by Supreme Court Order No. 08-8300-047, effective 12/31/2008; as amended by Supreme Court Order No. 13-8300-033, effective for all cases filed on or after12/31/2013.

Committee commentary. - Prior to December 31, 2008, this rule authorized private citizens to pursue criminal prosecutions in municipal court, either on their own or through a special prosecutor. In 2013, the Court withdrew former Paragraphs D and E in recognition of the 2008 amendment, which removed the authority for such private prosecutions. Former Paragraph D was entitled "Special prosecutor" and provided that "[n]othing in this rule shall be construed to allow a private attorney to prosecute a case for any party without first having been duly appointed as a special prosecutor by the city attorney for the municipality in which the court is located." Former Paragraph E was entitled "City attorney" and provided that "[n]othing in this rule shall be construed to prevent the city attorney of the municipality in which the complaint is filed from dismissing the case or entering an appearance and assuming prosecutorial control over the case." Paragraphs D and E are no longer necessary because they addressed the situation in which a private citizen could pursue a criminal complaint through a special prosecutor. The withdrawal of Paragraphs D and E does not preclude a municipality from appointing a special prosecutor to prosecute.

[Adopted by Supreme Court Order No. 13-8300-033, effective for all cases filed on or after December 31, 2013.]

ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-033, effective December 31, 2013, permitted law enforcement officers to prosecute misdemeanor criminal complaints; prohibited law enforcement officers and municipal employees who are not attorneys from prosecuting charges of driving under the influence of alcohol and drugs; deleted the provision that private attorneys cannot prosecute criminal complaints without being designated by the city attorney as a special prosecutor; deleted the provision that the rule does not prevent the city attorney from dismissing cases or assuming the prosecution of cases filed by municipal police and municipal employees; in Paragraph A, in the title, deleted "Peace" and added "Law enforcement", in the first sentence, deleted "Municipal police" and added "Law enforcement", in the second sentence, after "charges within the", deleted "trial", and added the third sentence; in Paragraph B, in the title, after "authorized", deleted "appearances" and added "prosecutions"; and after "on behalf of the governmental entity", added the remainder of the sentence; in Paragraph C, in the first sentence, deleted "Municipal police" and added "In cases where law enforcement", after "law enforcement officers and", added "non-attorney", after "non-attorney municipal employees", added "are authorized under Paragraphs A and B of this rule to prosecute", after "they have filed", added "those officers and employees", and after "employees shall be", deleted "authorized" and added "permitted"; deleted former Paragraph D, which provided that private attorneys could not prosecute criminal complaints without being designate by the city attorney as a special prosecutor; and deleted former Paragraph E, which provided that the rule did not prevent the city attorney from dismissing cases or assuming the prosecution of cases filed by municipal police or municipal employees. The 2008 amendment, approved by Supreme Court Order No. 08-8300-047, effective December 31, 2008, in Paragraph A, deleted the phrase "and private citizens" from the title and deleted the phrase "and individual private citizens in their own behalf" in the first sentence and in Paragraph C, deleted the phrase "and individual private citizens in their own behalf" following the phrase "Paragraph B". Violation of municipal ordinance. - In municipal court, it is contemplated that the city attorney, a municipal officer, a police officer, or a private citizen will prosecute the violation of a municipal ordinance. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92. Officer may not continue magistrate or municipal case in district court. - A peace officer who has prosecuted a criminal case in magistrate or municipal court may not continue to prosecute the case in district court after an appeal of the magistrate or municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27.