Criminal Process in New Mexico Text Size:

The criminal process can be complex and confusing. But it's important to understand your legal rights. The best way to be informed is to contact a New Mexico criminal attorney in your area as soon as possible. A criminal defense attorney will understand the law as it relates to the crime you've been charged with, and will be able to help you in making informed decisions as your case moves through the process.

Stop

You may be stopped for questioning by the police. A stop is not the same as an arrest because, although you may be detained, you aren't moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer.

Search

Search Warrants

A search warrant authorizes police to conduct a search of a specific place, such as your residence. In order for a warrant to be issued by a judge, "probable cause" is necessary.

Probable cause to search means that:

• It is more likely than not that the specific items to be searched for are connected with criminal activities
• Those items will be found in the place to be searched

Warrantless Searches

The general rule is that warrants are required for searches. But search warrants are not required for the following:

• Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
• Automobile searches: If you're arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
• Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
• Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
• Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren't required to consent to any police searches.

Arrest

In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary.

After you're placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are the right to remain silent and the right to have an attorney. After your arrest, you aren't required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.

Miranda Rule

Under the Miranda Rule, if you are in police custody you must be informed of specific constitutional rights before interrogation begins. Those rights are as follows:

• The right to remain silent
• The right to have an attorney present during questioning
• The right to have an attorney appointed if you are unable to afford one

Important to note is that Miranda rights do not have to be read until you are taken into custody. That means that you can be quesstioned by the police before being taken into custody, and anything you say at that point can be used against you later in court.

Booking

After you're arrested, the police will bring you to the police station for the booking process. You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.

Arraignment

Once criminal charges are filed, you'll make a court appearance that is known as an "arraignment." If you're incarcerated, this will usually occur within 72 hours of your arrest.

During your arraignment, you'll be asked to enter a "plea" to the crime you've been charged with. Possible pleas are:

• Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and the fact that you were the one who committed that crime.
• Not guilty plea: A "not guilty" plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.
• No contest: A "no contest" plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.
• "Mute" plea: In some jurisdictions, you may "stand mute" instead of making a plea. The court will then enter a plea of not guilty. By standing mute, you avoid silently admitting to the correctness of the proceedings against you until that point. You are then free to attack all previous proceedings that may have been irregular.

If you plead "guilty" or "no contest," there will not be a trial. You'll then be sentenced.

During the arraignment, the court will also:

• Set bail
• Refuse to set bail; or
• Release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations

Bail/Bond

"Bail" is money or property put forth as security to ensure that you'll show up for further criminal proceedings.

Bail can be paid:

• In cash
• A pledge of property (if permitted in that court)
• A bail bond

A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.

Speedy Trial

You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that trials be held within a certain time frame after a person has been charged with a crime.

This right can be waived by asking for additional time for the preparation of your defense.

Speedy Trial Rights in New Mexico

The trial of a criminal case must start within six months after whichever of the following events occurs latest:

• The date of arraignment or waiver of arraignment
• If the proceedings have been stayed to determine your competency to stand trial, the date an order is filed finding you competent to stand trial
• If a mistrial is declared or a new trial is ordered by the trial court, the date such order is filed
• In the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in the district court disposing of the appeal
• If you are arrested or you surrender in New Mexico for failure to appear, the date of arrest or surrender
• If you are arrested or surrender in another state or country for failure to appear, the date you are returned to New Mexico
• If you have been placed in a preprosecution diversion program, the date of the filing with the clerk of the district court of a notice of termination of a preprosecution diversion program for failure to comply with the terms, conditions or requirements of the program
• The date the court allows the withdrawal of a plea or the rejection of a plea

A trial judge may extend the time for commencement of your trial for good cause but the total period of all extensions may not be more than three months. The Supreme Court may also extend your time for trial for good cause. If a trial in not commenced within the required time limits or within the period of any extension, the information or indictment filed against you will be dismissed.

Trial

Many prosecutors will consider "plea agreements," although it's not legally required. If you don't reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage.

Usually, if you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by:

• Pleading guilty; or
• Choosing a bench trial (a trial in front of a judge only)
• If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury.

A felony is a crime usually punishable by imprisonment for more than one year. A misdemeanor, on the other hand, is usually punishable by a fine or a year or less of incarceration.

Appeals

After conviction and sentencing, you have the opportunity to file an appeal of your sentence. If you were convicted based on a guilty plea, you may need to ask for "leave" or permission to appeal your conviction. If you were convicted after a trial, you have an absolute right to appeal. An appeal is not a retrial of the case, but it is an examination of the trial record to ensure that the proceedings were conducted in a fair manner. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.

There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:

• Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
• Lack of sufficient evidence to support a verdict of guilty
• Mistakes in the judge's instructions to the jury regarding your case

You may also appeal due to misconduct on behalf of the jurors, or you may appeal if there is newly discovered evidence to exonerate you.

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