N.M. R. Crim. P. Dist. Ct. 5-209

As amended through May 8, 2024

Rule 5-209 - Service of summons; failure to appear

A.Service. A summons shall be served in accordance with Rule 1-004 NMRA unless the court directs service by mail. A copy of the complaint, indictment, or information shall be attached to the summons. Service shall be made at least ten (10) days before the defendant is required to appear. If service is made by mail an additional three (3) days shall be added under Rule 5-104 NMRA. Service by mail is complete on mailing.

B.Failure to appear. If a defendant fails to appear in person, or by counsel when permitted by these rules, at the time and place specified in the summons, the court may issue a warrant for the defendant's arrest, and thereafter the action shall be treated as if the warrant had been the first process in the action.

(1)Exception for initial appearance; returned mail.

(a) For a defendant's initial appearance in court, if a mailed summons has been returned as not delivered and the defendant has failed to appear in person, or by counsel when permitted by these rules, at the time and place specified in the summons, the court may either

(i) direct service to be made by a person authorized by Rule 1-004(D) NMRA; or

(ii) issue a warrant for the defendant's arrest with the directive that the defendant be released on the defendant's own recognizance, unless the court makes a finding of fact that supports the imposition of an appropriate bond.

(b) If the summons is returned as not delivered after a warrant has been issued under Paragraph B of this rule, the court may cancel or quash the warrant, waive or suspend the administrative bench warrant fee, and proceed under Subparagraph (1)(a) of this paragraph.

N.M. R. Crim. P. Dist. Ct. 5-209

As amended by Supreme Court Order No. 22-8300-026, effective for all cases pending or filed on or after 12/31/2022.

Committee commentary. - Paragraph A of this rule incorporates Rule 1-004 NMRA as the procedure for service of summons on a defendant. This procedure is more often used in misdemeanor than felony cases. Paragraph B of this rule, providing for arrest if the defendant fails to respond and appear to the summons, was derived from Rule 4(a) of the Federal Rules of Criminal Procedure. See generally, 1 Wright, Federal Practice and Procedure, § 51 (1969).

Subparagraph (B)(1) was added in 2022 to address situations in which a defendant is mailed a summons for the defendant's first appearance in a criminal case and the summons is returned to the court as undelivered or undeliverable. In these instances, the defendant has not received notice to appear. Subparagraph (B)(1) applies only to the first appearance, i.e., bond arraignment, and not to subsequent appearances as the defendant is under an obligation to keep the court apprised of a current mailing address after the defendant's first appearance.

Courts should avoid issuing a warrant or leaving a warrant in place when facts indicate that the defendant did not receive proper notice. In deciding whether facts indicate that an appropriate bond should be imposed, the judge should consider factors such as the defendant's failure to appear history and whether there was contact between the defendant and law enforcement that indicates the defendant received notice.

Warrants issued under Subparagraph (B)(1) of this rule are not bench warrants for failure to appear. Rather, these warrants are arrest warrants issued on the underlying charge as prescribed in Rules 5-208 and 5-210 NMRA.

[As amended by Supreme Court Order No. 22-8300-026, effective for all cases pending or filed on or after December 31, 2022.]

ANNOTATIONS The 2022 amendment, approved by Supreme Court Order No. 22-8300-026, effective December 31, 2022, provided the citation for the rule that governs how a summons is to be served; provided that the three-day mailing period under Rule 5-104 NMRA applies to the time limits when a summons is served by mail, and revised the Committee commentary; provided additional options for the court to address the situation in which a mailed summons for a defendant's initial appearance has been returned as not delivered and the defendant has failed to appear at the time and place specified in the summons; in Paragraph A, after "in accordance with", deleted "the rules governing service of process in civil actions" and added "Rule 1-004 NMRA", and added "If service is made by mail an additional three (3) days shall be added under Rule 5-104 NMRA."; and in Paragraph B, added Subparagraph B(1). Compiler's notes. - Paragraph B of this rule is similar to Rules 4(a), in part, and 9(a), in part, of the Federal Rules of Criminal Procedure.

For computation of time, see Rule 5-104 NMRA. For presence of defendant, appearance of counsel, see Rule 5-612 NMRA. For service of process in civil actions, see Rule 1-004 NMRA. For forms on criminal summons, certificate of mailing, certificate of service and affidavit of service by other person making service, see Rule 9-208 NMRA. For affidavit for bench warrant form, see Rule 9-211 NMRA. For forms on bench warrant and return, see Rule 9-212 NMRA. Contempt proceedings. - Where plaintiff property owner brought suit against adjoining property owner to restrain him from certain actions, and court issued order restraining both parties, whereupon defendant had the court issue an order requiring plaintiff to show cause why he should not be held in contempt for violation of restraining order, plaintiff failed to appear within the meaning of this rule when he sent his counsel to respond to the show cause order for him, as appearance by counsel was not a permitted response under Rule 47 (see now Rule 5-612 NMRA). Trial court was therefore authorized to issue an arrest warrant under this rule, but was not authorized to try and sentence the plaintiff under Rule 47 (see now Rule5-612 NMRA) without his being present. Lindsey v. Martinez, 1977-NMCA-086, 90 N.M. 737, 568 P.2d 263. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - 62B Am. Jur. 2d Process § 59 et seq. Foreign railway corporation as subject to service of process in state in which it merely solicits interstate business, 46 A.L.R. 570, 95 A.L.R. 1478. Constitutionality, construction and applicability of statutes relating to service of process on unincorporated association, 79 A.L.R. 305. Constitutionality, construction and effect of statute providing for service of process upon statutory agent in action against foreign corporation as regards communication to corporation of facts of service, 89 A.L.R. 658. Power of state to provide for service, other than personal, of process upon nonresident individual doing business within the state so as to subject him to judgment in personam, 91 A.L.R. 1327. Who, other than public official, may be served with process in action against foreign corporation doing business in state, 113 A.L.R. 9 Substituted service, service by publication or service out of the state, in action in personam against resident or domestic corporation, as contrary to due process of law, 126 A.L.R. 1474, 132 A.L.R. 1361. Delay in issuance or service of summons as requiring or justifying order discontinuing suit, 167 A.L.R. 1058. Leaving process or notice at residence as compliance with requirement that party be served "personally" or "in person," "personally served," etc., 172 A.L.R. 521. Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738. Who is "general" or "managing" agent of foreign corporation under statute authorizing service of process on such agent, 17 A.L.R.3d 625. Construction of phrase "usual place of abode," or similar terms referring to abode, residence or domicil, as used in statutes relating to service of process, 32 A.L.R.3d 112. Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service, 77 A.L.R.3d 841. 72 C.J.S. Process § 1 et seq.