N.M. R. Crim. P. Dist. Ct. 5-210
N.M. R. Crim. P. Dist. Ct. 5-210
Committee commentary. - For the rule governing execution and return of arrest warrants issued by the magistrate, metropolitan and municipal courts, see Rules 6-206, 7-206 and 8-206 NMRA which are substantially identical to this rule. See also, Commentary to Rule 5-301.
Paragraph B of this rule was derived from Rule 4(d)(3) of the Federal Rules of Criminal Procedure. See 62 F.R.D. 271-72 (1974). In a case decided without reference to Paragraph B of this rule, the court of appeals has upheld that physical possession of the warrant by the officer at the time of the arrest is not essential to the validity of the arrest, assuming that the warrant is otherwise valid. See State v. Grijalva, 85 N.M. 127, 509 P.2d 894 (Ct. App. 1974).
Paragraph D was added in 1990 to require in warrantless arrest cases that the defendant be given a copy of the criminal complaint prior to being transferred to the custody of a detention facility. Similar language was added to Rules 6-201, 7-201 and 8-201 NMRA. The right to a copy of the criminal charges is no greater than the right of a person accused of a motor vehicle violation to a copy of the citation. See Section 66-8-123 NMSA 1978 which provides that a copy of a traffic citation be given to the defendant. A traffic citation is a criminal complaint even though it is not verified. (See Sections 29-5-1.1 and 66-8-131 NMSA 1978). If the defendant remains in custody, the complaint must be filed with the court at the time it is given to the defendant or if the court is closed the next business day.
The right to a copy of the criminal complaint was added to this rule so that the defendant has notice of the criminal charges.
In 1991, the Supreme Court amended the criminal complaint form to delete the requirement that the complaint be sworn to before a notary or judicial officer before it is filed with the court. Law enforcement officers are required to swear or affirm under penalty of perjury that the facts set in the complaint are true to the best of their information and belief.
There is no absolute requirement that a copy of a criminal complaint be given to a defendant who, because of drugs, alcohol or rage is unable to read and understand the charges. Rather, it would be a better practice to place the complaint with other belongings of the defendant until such time as the defendant can understand the nature of the charges.
It is noted that under Section 43-2-22 NMSA 1978 of the Detoxification Act an intoxicated person may be detained in jail in protective custody for a 12 hour period without criminal charges. This time may be extended by a medical professional. Section 43-2-22 NMSA 1978. In this situation no criminal complaint need be served on the defendant who is being held for protective custody.
Rule 5-210 NMRA does not provide a precise definition as to the point in time at which a defendant is deemed to have been transferred to the custody of a detention facility. Nothing in these rules prevents the police from briefly detaining a defendant in a detention facility pending completion of preliminary police investigatory procedures so long as the police have not transferred jurisdiction to release the defendant to the detention facility. The police, however, must be free to release the defendant if, after such preliminary investigation and screening, charges are not filed.
The defendant has a number of rights prior to arraignment or first appearance. These preliminary rights include:
(a) The statutory right to 3 telephone calls within 20 minutes after detention; [Section 31-1-5 NMSA 1978]
(b) In warrantless arrest and detention cases, the right to be given a copy of the criminal complaint prior to transfer to custody of a detention facility; and
(c) In warrantless arrest and detention cases, the constitutional right to a prompt probable cause determination. See Commentary, Rule 5-301 NMRA.
Unlike the 6-month trial rules, this rule does not contain a provision requiring dismissal of the complaint for failure to provide the defendant in a warrantless arrest case with a copy of the complaint prior to transfer to a detention facility. The court may dismiss criminal charges for denying an accused the right to 3 telephone calls, the right to a copy of the criminal complaint or the right to a prompt probable cause determination if the court finds that the denial of one of these rights resulted in prejudice to the defendant or if the court finds that the law enforcement officers acted in bad faith. See State v. Bearly, 112 N.M. 50, 811 P.2d 83 (Ct. App. 1991). See also State v. Gibby, 78 N.M. 414, 418, 432 P.2d 258 (1967). [As revised, effective November 1, 1991.]
ANNOTATIONS The 1991 amendment, effective for cases filed in the district courts on or after November 1, 1991, in Paragraph D, rewrote the second and third sentences and added the last sentence.
For issuance of warrant for arrest and summons, see Rule 5-208 NMRA. For forms on warrant for arrest and return where defendant is found, see Rule 9-210 NMRA. Effect of unlawfully issued warrant and illegal arrest on conviction. - Where defendant was properly before the court under the information filed against him and pleads thereto, and there was no contention made that he did not receive a fair trial or that the verdict of guilty upon which his conviction was entered was not supported by the evidence, his conviction was not thereby rendered void even where the warrant was unlawfully issued and his arrest illegal. State v. Halsell, 1970-NMCA-021, 81 N.M. 239, 465 P.2d 518 (decided under former law). Liability for arrest of person with same name. - A citizen who in good faith and upon probable cause swears out a criminal complaint identifying the accused by name is not liable for malicious prosecution where the officer arrests a person bearing that name but who is not in fact the person against whom the complaint was made. Barnett v. Cal M, Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. 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). For article, "Survey of New Mexico Law, 1982-83: Criminal Procedure," see 14 N.M.L. Rev. 109 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 550 to 559, 562. Necessity of showing warrant upon making arrest under warrant, 40 A.L.R. 62. Liability for false imprisonment, of officer executing warrant for arrest as affected by its being returnable to wrong court, 40 A.L.R. 290. Power of private person to whom warrant of arrest is directed to deputize another to make the arrest or to delegate his power in that respect, 47 A.L.R. 1089. Territorial extent of power to arrest under a warrant, 61 A.L.R. 377. Civil liability of officer making arrest under warrant as affected by his failure to exhibit warrant, or to state fact of, or substance of, warrant, 100 A.L.R. 188. Validity of arrest made in reliance upon uncorrected or outdated warrant list or similar police records, 45 A.L.R.4th 550. Search and seizure of telephone company records pertaining to subscriber as violation of subscriber's constitutional rights, 76 A.L.R.4th 536. 22 C.J.S. Criminal Law § 334 et seq.