Although most criminal procedures are uniform throughout the country, each state uses its own particular process when criminal defendants are arrested and charged. The following briefly touches generally on the criminal process in New Mexico.
Arrest and Booking
An arrest is when your freedom to leave is prohibited by law enforcement. An officer can arrest you if he or she sees you commit a crime, or has probable cause, or it is based on an arrest warrant issued by a court on probable cause.
The law states you have the right to remain silent, that what you say will be used against you in court, that you may be represented by a lawyer at all stages of your case and that you may have one appointed for free if you qualify.
Those arrested are brought to a jail or detention facility where all personal effects are taken and inventoried. Defendants are photographed and fingerprinted and allowed a phone call to arrange bail.
Can You Make Bail?
Bail can be arranged through a bail bondsman, who can find out the charges and the bail. A relative or friend can co-sign on a bond by paying a premium of 10 percent of the bail to the bondsman. If you cannot make bail, your arraignment will be scheduled within a few days, and bail can be discussed then.
If you cannot make bail, the prosecutor must take a felony case to the grand jury or schedule a preliminary hearing within 10 days of your arrest or release you pending a grand jury indictment.
A judge will consider your bail based on the offense, your criminal history, ties to the community and risk of not appearing in court.
New Mexico Arraignment and Plea Process
Criminal defendants can be arraigned in Magistrate or Metropolitan Court, where they are advised of their rights and where conditions are imposed for bail and release.
If indicted on a felony, defendants are re-arraigned in District Court where the prosecutor presents a statement of probable cause for the charges. If the judge finds probable cause, bail is set, conditions for release imposed and any of the following pleas entered:
- Guilty — Admission to all charges
- Not guilty — Denial of the charges
- Nolo contendre — No dispute of the charges, and it is considered a guilty plea except that it may not be evidence in a civil suit
Plea Bargaining to a Lesser Charge/Sentencing
With the encouragement of the courts, the majority of criminal matters are plea bargained before trial. Rather than face severe penalties, defendants typically will plead guilty in exchange for a reduced sentence or a plea to a lesser charge.
Grand Jury Indictment/Preliminary Hearing
A grand jury indictment can be issued before or after a defendant is arrested. It is a formal accusation of a felony offense. In felony matters, an indictment can either be issued or a preliminary hearing scheduled after the first appearance. Both determine probable cause to charge the defendant.
If in custody and no indictment is issued, a preliminary hearing must be held within 10 days after the first appearance or within 60 days if released.
Trial Procedures and Sentencing
Jury trials are held in the Magistrates Court and District Court. A defendant can knowingly waive a jury trial and be tried before a judge only. In any case, the prosecution must prove a defendant guilty beyond a reasonable doubt. In jury cases, an unanimous verdict is required for a conviction.
Your sentence is determined by a judge according to certain guidelines and a pre-sentence investigation report prepared by the probation department. A judge has some discretion in these cases to vary the sentencing based upon the circumstances, severity of the offense, criminal history, social factors, and input from victims and others if appropriate.
Importance of Retaining a Lawyer
No state has exactly the same criminal process. Also, because your future is at stake in any criminal case, consult with a New Mexico criminal defense attorney whenever you face criminal charges.