Rule 5-302. Preliminary examination.

A. Time. (1) Time limits. A preliminary examination shall be scheduled and held with a disposition entered, unless an extension under Subparagraph (A)(2) of this rule is granted, within a reasonable time but in any event no later than ten (10) days if the defendant is in custody, and no later than sixty (60) days if the defendant is not in custody, of whichever of the following events occurs latest: (a) the first appearance; (b) the first appearance after the refiling of a case previously dismissed by the prosecutor; (c) if an evaluation of competency has been ordered, the date an order is filed finding the defendant competent to stand trial; (d) if the defendant is arrested or surrenders on any warrant, the date the defendant is returned to the court; (e) if the defendant has been placed in a preprosecution diversion program, the date a notice is filed in the district court stating that the preprosecution diversion program has been terminated for failure to comply with the terms, conditions, or requirements of the program; or (f) if the defendant is not arrested on a bench warrant, the date the conditions of release are revoked under Rule 5-403 NMRA, which results in the defendant’s continued detention. (2) Extensions. On a showing of good cause, the court may extend the time limits for holding a preliminary examination for up to sixty (60) days. If the defendant does not consent, the court may extend the time limits in Subparagraph (A)(1) of this rule only on a showing on the record that exceptional circumstances beyond the control of the state or the court exist and justice requires the delay. An extension for exceptional circumstances shall not exceed sixty (60) days. The time enlargement provisions in Rule 5-104 NMRA do not apply to a preliminary examination. (3) Dismissal without prejudice. If a preliminary examination is not held within the time limits in this rule, the court shall dismiss the case without prejudice and discharge the defendant. B. Procedures. If the court determines that a preliminary examination must be conducted, the following procedures shall apply. (1) Counsel. The defendant has the right to assistance of counsel at the preliminary examination. (2) Discovery. The prosecution shall promptly make available to the defendant any tangible evidence in the prosecution’s possession, custody, and control, including records, papers, documents, and recorded witness statements that are material to the preparation of the defense or that are intended for use by the prosecution at the preliminary examination. The prosecution is under a continuing duty to disclose additional evidence to the defendant as that evidence becomes available to the prosecution. (3) Subpoenas. Subpoenas shall be issued for any witnesses required by the prosecution or the defendant. (4) Cross-examination. The witnesses shall be examined in the defendant’s presence, and both the prosecution and the defendant shall be afforded the right to cross-examine adverse witnesses. The court may allow witnesses to appear by two-way audio-visual attendance provided that the witness is able to see, and can be seen by, the defendant, counsel for the prosecution and the defendant, and the judge. (5) Rules of Evidence. The Rules of Evidence apply, subject to any specific exceptions in the Rules of Criminal Procedure for the District Courts. C. Record of examination. A record shall be made of the preliminary examination. If requested, the record shall be filed with the clerk of the district court within ten (10) days after it is requested. D. Findings of court. (1) If, on completion of the examination, the court finds that there is no probable cause to believe that the defendant has committed a felony offense, the court shall dismiss without prejudice all felony charges for which probable cause does not exist and discharge the defendant as to those offenses. (2) If the court finds that there is probable cause to believe that the defendant committed an offense, it shall bind the defendant over for trial. E. Remand for preliminary examination. The court may remand the case to the magistrate or metropolitan court for a preliminary examination unless a motion for pretrial detention has been filed or a preliminary examination has been previously conducted in the magistrate or metropolitan court.