N.M. R. Crim. P. Dist. Ct. 5-401
N.M. R. Crim. P. Dist. Ct. 5-401
Committee commentary. - This rule provides "the mechanism through which a person may effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico Constitution." State v. Brown, 2014-NMSC-038, ¶ 37, 338 P.3d 1276. In 2016, Article II, Section 13 was amended (1) to permit a court of record to order the detention of a felony defendant pending trial if the prosecutor proves by clear and convincing evidence that the defendant poses a danger to the safety of any other person or the community and that no release condition or combination of conditions will reasonably ensure the safety of any other person or the community; and (2) to require the pretrial release of a defendant who is in custody solely because of financial inability to post a secured bond. This rule was derived from the federal statute governing the release or detention of a defendant pending trial. See 18 U.S.C. § 3142.
This rule was amended in 2017 to implement the 2016 amendment to Article II, Section 13 and the Supreme Court's holding in Brown, 2014-NMSC-038. Corresponding rules are located in the Rules of Criminal Procedure for the Magistrate Courts, see Rule 6-401 NMRA, the Rules of Criminal Procedure for the Metropolitan Courts, see Rule 7-401 NMRA, and the Rules of Procedure for the Municipal Courts, see Rule 8-401 NMRA.
Time periods specified in this rule are computed in accordance with Rule 5-104 NMRA.
Just as assistance of counsel is required at a detention hearing under Rule 5-409 NMRA that may result in a denial of pretrial release based on dangerousness, Subparagraphs (A)(2), (H)(2), and (H)(3) of this rule provide that assistance of counsel is required in a proceeding that may result in denial of pretrial release based on reasons that do not involve dangerousness, such as a simple inability to meet a financial condition.
As set forth in Paragraph B, a defendant is entitled to release on personal recognizance or unsecured bond unless the court determines that any release, in addition to any non-monetary conditions of release under Paragraph D, will not reasonably ensure the appearance of the defendant and the safety of any other person or the community.
Paragraph C lists the factors the court should consider when determining conditions of release. In all cases, the court is required to consider any available results of a pretrial risk assessment instrument approved by the Supreme Court for use in the jurisdiction and the financial resources of the defendant.
Paragraph D lists various non-monetary conditions of release. The court must impose the least restrictive condition, or combination of conditions, that will reasonably ensure the appearance of the defendant as required and the safety of any other person and the community. See Brown, 2014-NMSC-038, ¶¶ 1, 37, 39. If the defendant has previously been released on standard conditions before a court appearance, the judge should review the conditions at the defendant's first appearance to determine whether any particularized conditions should be imposed under the circumstances of the case. Paragraph D also permits the court to impose non-monetary conditions of release to ensure the orderly administration of justice. This provision was derived from the American Bar Association, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-5.2 (3d ed. 2007). Some conditions of release may have a cost associated with the condition. The court should make a determination on whether the defendant can afford to pay all or a part of the cost, or whether the court has the authority to waive the cost, because detaining a defendant because of inability to pay the cost associated with a condition of release is comparable to detaining a defendant because of financial inability to post a secured bond.
As set forth in Paragraph E, the only purpose for which the court may impose a secured bond is to ensure that the defendant will appear for trial and other pretrial proceedings for which the defendant must be present. See State v. Ericksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 P.2d 1099 ("[T]he purpose of bail is to secure the defendant's attendance to submit to the punishment to be imposed by the court."); see also NMSA 1978, § 31-3-2(B)(2) (1993) (authorizing the forfeiture of bond on the defendant's failure to appear).
The 2017 amendments to this rule clarify that the amount of secured bond must not be based on a bond schedule, i.e., a predetermined schedule of monetary amounts fixed according to the nature of the charge. Instead, the court must consider the individual defendant's financial resources and must set secured bond at the lowest amount that will reasonably ensure the defendant's appearance in court after the defendant is released.
Secured bond cannot be used for the purpose of detaining a defendant who may pose a danger to the safety of any other person or the community. See Brown, 2014-NMSC-038, ¶ 53 ("Neither the New Mexico Constitution nor our rules of criminal procedure permit a judge to set high bail for the purpose of preventing a defendant's pretrial release."); see also Stack v. Boyle, 342 U.S. 1, 5 (1951) (stating that secured bond set higher than the amount reasonably calculated to ensure the defendant's appearance in court "is 'excessive' under the Eighth Amendment"). A felony defendant who poses a danger that cannot be mitigated through the imposition of non-monetary conditions of release under Paragraph D of this rule should be detained under Article II, Section 13 of the New Mexico Constitution and Rule 5-409 NMRA.
The court should consider the authorized types of secured bonds in the order of priority set forth in Paragraph E.
The court must first consider requiring an appearance bond secured by a cash deposit of ten percent (10%). No other percentage is permitted under the rule. If a cash deposit of ten percent (10%) is inadequate, the court then must consider a property bond involving property that belongs to the defendant or other unpaid surety. If neither of these options is sufficient to reasonably ensure the defendant's appearance, the court may require a cash or surety bond for the defendant's release. If the court requires a cash or surety bond, the defendant has the option either to execute an appearance bond and deposit one hundred percent (100%) of the amount of the bond with the court or to purchase a bond from a paid surety. Under Subparagraph (E)(2)(c), the defendant alone has the choice to post the bond by a one hundred percent (100%) cash deposit or a surety. The court does not have the option to set a cash-only bond or a surety-only bond; it must give the defendant the choice of either. A paid surety may execute a surety bond or a real or personal property bond only if the conditions of Rule Rule 5-401.2 NMRA are met.
Paragraph F governs the contents of an order setting conditions of release. See Form 9-303 NMRA (order setting conditions of release). Paragraph F also requires the court to make written findings justifying the imposition of a secured bond. Judges are encouraged to enter their written findings on the order setting conditions of release at the conclusion of the hearing. If more detailed findings are necessary, the judge should make any supplemental findings in a separate document within two (2) days of the conclusion of the hearing.
Paragraph G addresses pretrial detention of a dangerous defendant under Article II, Section 13 of the New Mexico Constitution. If the defendant poses a danger to the safety of any other person or the community that cannot be addressed through the imposition of non-monetary conditions of release, the prosecutor may file a motion for pretrial detention. If the prosecutor files a motion for pretrial detention, the district court must follow the procedures set forth in Rule 5-409 NMRA. Paragraph G was amended in 2020 to permit the court to automatically schedule a pretrial detention hearing in certain categories of cases. However, before the hearing, the prosecutor retains the burden of filing an expedited motion for pretrial detention under Rule 5-409 NMRA. If the prosecutor does not file that motion before the hearing, then the court is to set conditions of release rather than consider detention.
Paragraphs H and K provide avenues for a defendant to seek district court review of the conditions of release. Paragraph H applies to a defendant whose case is pending before the district court. Paragraph K sets forth the procedure for a defendant whose case is pending in the magistrate, metropolitan, or municipal court. Article II, Section 13 of the New Mexico Constitution requires the court to rule on a motion or a petition for pretrial release "in an expedited manner" and to release a defendant who is being held solely because of financial inability to post a secured bond. A defendant who wishes to present financial information to a court to support a motion or petition for pretrial release may present Form 9-301A NMRA (pretrial release financial affidavit) to the court. The defendant shall be entitled to appear and participate personally with counsel before the judge conducting any hearing to review the conditions of release, rather than by any means of remote electronic conferencing.
Paragraph L requires the district court to prioritize the scheduling of trial and other proceedings for cases in which the defendant is held in custody because of inability to post bond or meet the conditions of release. 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.
Under NMSA 1978, Section 31-3-1 (1972), the court may appoint a designee to carry out the provisions of this rule. As set forth in Paragraph N, a designee must be designated by the chief district court judge in a written court order. A person may not be appointed as a designee if such person is related within the second degree of blood or marriage to a paid surety licensed in this state to execute bail bonds. A jailer may be appointed as a designee. Paragraph N and Rule 5-408 NMRA govern the limited circumstances under which a designee shall release an arrested defendant from custody before that defendant's first appearance before a judge.
Paragraph O requires the magistrate or metropolitan court to transfer any bond to the district court on notice from the district attorney that an information or indictment has been filed. See Rules 6-202(E)-(F), 7-202(E)-(F) NMRA (requiring the district attorney to notify the magistrate or metropolitan court of the filing of an information or indictment in the district court).
Paragraph P of this rule dovetails with Rule 11-1101(D)(3)(e) NMRA. Both provide that the Rules of Evidence do not apply to proceedings in district court with respect to matters of pretrial release. As with courts in other types of proceedings in which the Rules of Evidence do not apply, a court presiding over a pretrial release 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"); 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).
Consistent with Rule 5-106 NMRA, a party cannot exercise the statutory right to excuse a judge who is setting initial conditions of release. See NMSA 1978, § 38-3-9 (1985). Paragraph R 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.
[As amended by Supreme Court Order No. 07-8300-029, effective December 10, 2007; 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. 20-8300-021, effective for all cases pending or filed on or after November 23, 2020; 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-2024-00068, effective for all cases pending or filed on or after May 8, 2024.]
ANNOTATIONS The 2024 amendment, approved by Supreme Court Order No. S-1-RCR-2024-00068, effective May 8, 2024, provided that if the defendant remains in custody pending his initial hearing under 5-403(D) NMRA, the district court shall hold a pretrial release hearing within three days after the date of the initial hearing if the defendant is being held in the local detention center, or five days after the date of the initial hearing if the defendant is not being held in the local detention center, provided that the district court may order a secured appearance bond only if the court makes written findings of particularized reasons why the release will not reasonably ensure the appearance of the defendant as required, revised the list of non-monetary conditions of release that the district court may impose that will reasonably ensure the appearance of defendant as required, the safety of the community, and the orderly administration of justice, provided that the order setting conditions of release must be in writing and that the written order shall be provided to defendant before release if the defendant is in custody or within three days of the conditions of release hearing if the defendant is not in custody, revised the provisions related to scheduling a pretrial detention hearing in accordance with 5-409 NMRA, revised the timing of when a district court must hold a hearing to review conditions of release, made certain technical amendments, and revised the committee commentary; in Paragraph A, Subparagraph A(1), added Item A(1)(c); in Paragraph B, deleted "unless the court makes written findings of particularized reasons why the release will not reasonably ensure the appearance of the defendant as required," and added "The court may order execution of a secured appearance bond only if the court makes written findings of particularized reasons why the release will not reasonably ensure the appearance of the defendants as required under Paragraphs E and F of this rule."; in Paragraph D, deleted Subparagraph D(11), which provided "undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose," and redesignated the succeeding subparagraphs accordingly; in Paragraph E, after "If the court makes", added "written", after "findings of the", added "particularized"; in Paragraph F, Subparagraph F(1), added "written" preceding "order", and after "conditions of release shall", added "be provided to the defendant before release if the defendant is in custody or within three (3) days of the conditions of release hearing if the defendant is not in custody, and"; in Paragraph G, Subparagraph G(2), after "when", added "the defendant is charged with a felony offense:", deleted former Item G(2)(a), which provided "the defendant is charged with a felony offense", and redesignated former Items G(2)(a)(i) through G(2)(a)(iii) as G(2)(a) through G(2)(c), and deleted former Item G(2)(b); in Paragraph H, in the paragraph heading, deleted "motion for" preceding "review", in Subparagraph H(1), in the heading, deleted "Motion for" and after "the defendant shall", deleted "on motion of the defendant or the court's own motion", and in Subparagraph H(2), after "five (5) days after the", deleted "filing of the motion" and added "initial conditions of release hearing"; and in Paragraph K, Subparagraph K(1), after "municipal court has", deleted "ruled on a motion to review" and added "reviewed", after "the conditions of release", added "and made a requisite ruling", and after "municipal court order", deleted "disposing of the defendant's motion for review" and added "after the review of the conditions of release". The 2023 amendment, approved by Supreme Court No. S-1-RCR-2023-00021, effective December 31, 2023, defined "local detention center", and made technical amendments; and in Paragraph A, added Subparagraph 3. The 2022 amendment, approved by Supreme Court Order No. 22-8300-015, effective December 31, 2022, added the condition that the defendant refrain from any use of cannabis, cannabis products, or synthetic cannabinoids without a certification from a licensed medical practitioner to an existing list of conditions that the district court may impose when setting conditions of release that will reasonably ensure the appearance of the defendant as required, the safety of any other person and the community, and the orderly administration of justice, clarified that the public safety assessment tools used by the district court when scheduling a pretrial detention hearing must be approved by the Supreme Court for use in the jurisdiction, clarified that upon a filing of a petition in the district court for review of the magistrate, metropolitan, or municipal court's order setting conditions of release, the magistrate, metropolitan, or municipal court's jurisdiction to set or amend the conditions of release shall be suspended pending determination by the district court, unless the case is dismissed or a finding of no probable cause is made, provided that in cases in which the defendant is detained as a result of inability to post a secured bond or meet the conditions of release, the district court shall hold a status hearing in any case in which the defendant has been held for more than six months and every six months thereafter in order to review the progress of the case and required the district 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 D, added a new Subparagraph D(10) and redesignated the succeeding subparagraphs accordingly; in Paragraph G, Subparagraph G(2)(b), after "public safety assessment tool", added "approved by the Supreme Court for use in the jurisdiction", and in Subparagraph G(3), after "does not file", deleted "an expedited"; in Paragraph K, Subparagraph K(4), after "petition by the district court", added "unless the case is dismissed or a finding of no probable cause is made"; and in Paragraph L, added "The court shall hold a status review hearing in any case in which the defendant has been held for more than six (6) months and every six (6) months thereafter. 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 2020 amendment, approved by Supreme Court Order Nos. 20-8300-013 and 20-8300-021, effective November 23, 2020, authorized the district court to schedule a pretrial detention hearing when the defendant is charged with certain felony offenses or if a public safety assessment tool flags potential new violent criminal activity for the defendant, required the court to treat the pretrial detention hearing as a pretrial release hearing if the prosecutor does not file an expedited motion for pretrial detention by the date scheduled for the detention hearing and to issue an order setting conditions of release, and revised the committee commentary; and added Subparagraphs G(2) and G(3). The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, provided the mechanism through which a defendant may effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico Constitution, rewrote the rule to such an extent that a detailed comparison is impracticable, and revised the committee commentary. The 2014 amendment, approved by Supreme Court Order No. 14-8300-017, effective December 31, 2014, changed the reference to the New Mexico Constitution in Paragraph F from "§ 1" to "Section 13". The 2010 amendment, approved by Supreme Court Order No. 10-8300-033, effective December 10, 2010, added Paragraph P. The 2007 amendment, effective December 10, 2007, revised Paragraph J to provide for return of the bond upon adjudication of the defendant's guilt. See State v. Gutierrez, 2006-NMCA-090, 140 N.M. 157, 140 P.3d 1106. The 2005 amendment, effective September 1, 2005, revised former Paragraph A to require a written finding of the determination that release of the defendant on personal recognizance or upon execution of an unsecured appearance bond will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, to designate all, but the first sentence of Paragraph A as a new Paragraph B, to redesignate former Paragraphs B through N as Paragraphs C through O and to make other non-substantive revisions. Compiler's notes. - Paragraphs A to F and H of this rule are similar to 18 U.S.C. § 3142, referred to in Rule 46(a) of the Federal Rules of Criminal Procedure.
For procedural statutes relating to bail, see Sections 31-3-1 to 31-3-9 NMSA 1978. For habeas corpus to obtain release or bail, see Sections 44-1-23, 44-1-24 NMSA 1978. For Magistrate Court Rules relating to bail, see Rule 6-401 NMRA. For release order form, see Rule 9-302 NMRA. For appearance bond form, see Rule 9-303 NMRA. For forms on bail bond and justification of sureties, see Rule 9-304 NMRA. For Rules of Evidence inapplicable to bail proceedings, see Rule 11-1101 NMRA. Constitutional right to bail. - Article II, Section 13 of the New Mexico Constitution affords criminal defendants the right to bail, and although there is a presumption that all persons are bailable pending trial, the right to bail is not absolute under all circumstances; the trial court must give proper consideration to all of the factors in determining conditions of release set forth in Paragraph C of this rule, and shall set the least restrictive of the bail options and release conditions that will reasonably assure the appearance of the person as required and the safety of any other person and the community. State v. Brown, 2014-NMSC-038. Least restrictive bail option is required. - Where trial court determined that defendant was bailable, and made findings that defendant would not likely commit new crimes, that defendant did not pose a danger to anyone, and that defendant was likely to appear if released, and where trial court failed to give proper consideration to all of the factors in determining conditions of release set forth in Rule 5-401(C) NMRA, and trial court failed to set the least restrictive of the bail options and release conditions, it was an abuse of discretion to continue the imposition of bond. State v. Brown, 2014-NMSC-038. Cash-only bond. - The court has the discretion to determine, under the particular facts and circumstances of each case, the type of secured bond needed to secure the defendant's appearance at trial, including cash-only bonds. State v. Gutierrez, 2006-NMCA-090, 140 N.M. 157, 140 P.3d 1106, cert. denied, 2006-NMCERT-008. Imposition of conditions of release. - Where a trial court did not allow defendant bail, the trial judge did not have an obligation to set specific "conditions of release"; it would not only be inconsistent but absurd to impose "conditions of release" on a defendant remanded to custody when it is not intended that he be released. State v. Flores, 1982-NMSC-132, 99 N.M. 44, 653 P.2d 875. Pre-trial confinement did not create a coercive condition that warranted withdrawal of defendant's guilty plea. - Where defendant was indicted on 211 counts of securities fraud, forgery and identity theft, and where defendant pleaded guilty to 13 counts of securities fraud and one count of conspiracy to commit securities fraud, and where the plea and disposition agreement provided an avenue under which defendant could possibly serve no jail time, the district court did not err in imposing a $250,000 cash-only bond after evaluating defendant's conditions of release on three separate occasions, and basing its decision on the crimes with which defendant was charged, the facts about defendant's alleged scheme, the impact on the victim, the potential financial resources of defendant and his extended family, and the strength of the state's case, and therefore the fact that defendant was confined pretrial, on its own, did not create a coercive condition that warranted withdrawal of defendant's plea. State v. Turner, 2017-NMCA-047, cert. denied. Security for restitution disallowed. - There is no statutory authorization for requiring security for restitution as a condition of bail pending appeal. State v. Montoya, 1993-NMCA-097, 116 N.M. 297, 861 P.2d 978 Effect of delay in fixing bond. - Delay in fixing of bond is no grounds for holding invalid the judgment and sentence thereafter imposed following a plea of guilty. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258 (decided under former law). Interlocutory bail determination is not final judgment and bail decisions may be reviewed at any time and for a variety of reasons under this rule. State v. David, 1984-NMCA-119, 102 N.M. 138, 692 P.2d 524. Review hearing required by Subdivision (e) (see now Paragraph E) of this rule is not required in order to appeal a denial or revocation of bail. 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 article, "The Constitutionality of Pretrial Detention Without Bail in New Mexico," see 12 N.M.L. Rev. 685 (1982). 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 et seq. Dismissal or vacation of indictment as terminating liability or obligation of surety on bail bond, 18 A.L.R.3d 1354. When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus - modern cases, 26 A.L.R.4th 455. Bail: duration of surety's liability on pretrial bond, 32 A.L.R.4th 504. Bail: duration of surety's liability on posttrial bail bond, 32 A.L.R.4th 575. Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 A.L.R.4th 600. Bail: effect on surety's liability under bail bond of principal's incarceration in other jurisdiction, 33 A.L.R.4th 663. Propriety of applying cash bail to payment of fine, 42 A.L.R.5th 547. Propriety, after obligors on appearance bond have been exonerated pursuant to Rule 46(f) of the Federal Rules of Criminal Procedure, of applying cash or other security to fine imposed on accused, 58 A.L.R. Fed. 676. 8 C.J.S. Bail § 1 et seq.