In New Mexico, defendants who have been arrested without a warrant and who haven’t been released are entitled to a probable cause evaluation. This evaluation, made by a magistrate or judge, determines whether the authorities must release or may continue to hold the arrestee.
(For more information on arraignment and initial court appearances in general, see Arraignment: Getting to Court. For more information on the New Mexico criminal justice process, see the New Mexico Courts website.)
Forty Eight Hours
The probable cause determination must occur at some point within 48 hours of the arrest and no later than the defendant’s first court appearance. But it can occur without the defendant or even a defense attorney being present. And the judge making the determination may often give the government a second chance to establish probable cause within the 48 hour/first-court-appearance window. (NMRA, Rules 5-301, 6-203, 7-203, 8-202.)
PC or No?
If the court doesn’t find probable cause to believe the defendant committed a crime, it must order his or her release. (But if the judge dismisses the complaint, the prosecution can typically refile charges.) If the court finds probable cause, it must review or set conditions of release. (NMRA, Rules 5-301, 6-203, 7-203, 8-202.) (For information on bail, see Bailing out of Jail.)
Unfortunately for defendants, if the authorities improperly delay the first court appearance, there might not be any remedy unless the delay compromises their defense. For example, the New Mexico Supreme Court rejected a defendant’s appeal that was based in part on an eight-day delay between his arrest and being brought before a magistrate. The court reasoned that the defendant couldn’t establish that the delay prejudiced his cause. (State v. Lattin, 78 N.M. 49 (1967).)
Advisement of Rights
At the defendant’s first court appearance, the court must ensure that the defendant has been informed of certain rights and information, including:
- the charges
- the penalties for the charged offenses
- the right to bail, and
- if it applies, the right to counsel.
(NMRA, Rules 5-301, 6-501, 7-501, 8-501.)
The court may call upon the defendant to enter a plea at the initial appearance. For information on responding, see How should I plead at arraignment?
The court may ask whether the defendant wants to waive the right to a preliminary hearing. And for in-custody defendants, the court may set conditions of release. With the court’s prior approval, the defendant can waive the first appearance or arraignment by filing a written waiver. (NMRA, Rules 6-501, 7-501, 8-501.)
Some defendants will go through an arraignment procedure that’s separate from the first appearance. For example, in District Court, the defendant must be arraigned on the information or indictment within 15 days of the filing thereof or of arrest, whichever is later. The defendant can request a review or setting of bail at this court appearance. With the court’s consent, the defendant can waive arraignment and plead not guilty in writing. (NMRA, Rule 5-303.)
Get Legal Help
If you’ve been arrested, whether you’ve had your first court appearance or not, seek the help of an experienced attorney. Only a knowledgeable attorney will be able to advise you of the applicable law and protect your rights.