Rule 5-409. Pretrial detention.

A. Scope. Notwithstanding the right to pretrial release under Article II, Section 13 of the New Mexico Constitution and Rule 5-401 NMRA, under Article II, Section 13 and this rule, the district court may order the detention pending trial of a defendant charged with a felony offense if the prosecutor files a motion for an expedited pretrial detention hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. B. Motion for pretrial detention. The prosecutor may file a motion for an expedited pretrial detention hearing at any time in the court where the case is pending. The motion shall include the specific facts that warrant pretrial detention and shall specify whether the state is requesting a preliminary examination to establish probable cause. If the state requests a preliminary examination, the motion shall also specify whether the state is requesting that an expedited pretrial detention hearing be held concurrently. (1) The prosecutor shall immediately deliver a copy of the motion to (a) the detention center holding the defendant, if any; (b) the defendant and defense counsel of record, or, if defense counsel has not entered an appearance, the local law office of the public defender or, if no local office exists, the director of the contract counsel office of the public defender. (2) The defendant may file a response to the motion for pretrial detention in the district court, but the filing of a response shall not delay the hearing under Paragraph F of this rule. If a response is filed, the defendant shall promptly provide a copy to the assigned district court judge and the prosecutor. (3) Except when the court finds no probable cause, the court may not grant or deny the motion for pretrial detention without a hearing. C. Case initiated in magistrate or metropolitan court. If a motion for pretrial detention is filed in the magistrate or metropolitan court and a probable cause determination has not been made, the magistrate or metropolitan court shall determine probable cause under Rule 6-203 NMRA or Rule 7-203 NMRA. If the court finds no probable cause, the court shall order the immediate personal recognizance release of the defendant under Rule 6-203 NMRA or Rule 7-203 NMRA and shall deny the motion for pretrial detention without prejudice. If probable cause has been found, the magistrate or metropolitan court shall proceed to conduct the defendant’s first appearance under Rule 6-501 NMRA or Rule 7-501 NMRA and thereafter promptly send to the district court clerk a copy of the motion for pretrial detention, the criminal complaint, and all other papers filed in the case. The magistrate or metropolitan court shall then close the case and its jurisdiction shall be terminated, and the district court shall acquire exclusive jurisdiction over the case, except as provided in Paragraph I of this rule. D. Case initiated in district court. If a motion for pretrial detention is filed in the district court and an initial finding of probable cause has not been made under Rule 5- 301 NMRA, Rule 6-203 NMRA, or Rule 7-203 NMRA, the district court shall determine probable cause in accordance with Rule 5-301 NMRA. If the court finds no probable cause, the court shall order the immediate personal recognizance release of the defendant under Rule 5-301 NMRA and shall deny the motion for pretrial detention without prejudice. If probable cause is found, the court shall proceed to conduct the defendant’s first appearance under Rule 5-301(D) NMRA and Rule 5-401(A) NMRA. E. Detention pending hearing; warrant. (1) Defendant in custody when motion is filed. If a detention center receives a copy of a motion for pretrial detention, the detention center shall distribute the motion to any person designated by the district, magistrate, or metropolitan court to release defendants from custody under Rule 5-401(N) NMRA, Rule 5-408 NMRA, Rule 6-401(M) NMRA, Rule 6-408 NMRA, Rule 7-401(M) NMRA, or Rule 7-408 NMRA. All authority of any person to release a defendant under that designation is terminated on receipt of a detention motion until further court order. (2) Defendant not in custody when motion is filed. If the defendant is not in custody when the motion for pretrial detention is filed, the district court may issue a warrant for the defendant’s arrest if the motion establishes probable cause to believe the defendant has committed a felony offense and alleges sufficient facts that, if true, would justify pretrial detention under Article II, Section 13 of the New Mexico Constitution. If the motion does not allege sufficient facts, the court shall issue a summons and notice of hearing. F. Expedited pretrial detention hearing. The district court shall hold an expedited hearing on the motion for pretrial detention to determine whether any release condition or combination of conditions set forth in Rule 5-401 NMRA will reasonably protect the safety of any other person or the community. On the request of the prosecutor or on the court’s own motion, the court shall set the matter for a preliminary examination to be held concurrently with the motion for pretrial detention. (1) Time. (a) Time limit. The hearing shall be held promptly. Unless the court has issued a summons and notice of hearing under Subparagraph (E)(2) of this rule, the hearing shall commence no later than five (5) days after the later of the following events: (i) the filing of the motion for pretrial detention; or (ii) the date the defendant is arrested as a result of the motion for pretrial detention. (b) Time limit for concurrent hearings. Notwithstanding the time limit specified in Subparagraph (F)(1)(a) of this rule, if the prosecutor requests or the court on its own motion orders the expedited pretrial detention hearing and preliminary examination to be held concurrently, the consolidated hearing shall be held no less than eight (8) days and no more than ten (10) days after the applicable triggering event identified in Subparagraph (F)(1)(a)(i) and (ii) of this rule. (c) Extensions. The time enlargement provisions in Rule 5-104 NMRA do not apply to a pretrial detention hearing. The court shall extend the time limit for holding the hearing as follows: (i) for three (3) days to five (5) days, as provided in Subparagraph (F)(1)(b) of this rule, if in the motion for pretrial detention the prosecutor requests or the court on its own motion orders a preliminary hearing to be held concurrently with the detention hearing; (ii) for up to three (3) days on a showing that extraordinary circumstances exist and justice requires the extension; (iii) on the defendant filing a waiver of the time limit; or (iv) on stipulation of the parties. (d) Notice. The court shall promptly schedule the hearing and notify the parties of the hearing setting within one (1) business day after the filing of the motion. (2) Initial disclosures. (a) The prosecutor shall promptly disclose to the defendant before the hearing (i) all evidence that the prosecutor intends to rely on at the hearing, and (ii) all exculpatory evidence known to the prosecutor. (b) Except in cases where the hearing is held within two (2) business days after the filing of the motion, the prosecutor shall disclose evidence under this subparagraph at least twenty-four (24) hours before the hearing. At the hearing, the prosecutor may offer evidence or information that was discovered after the disclosure deadline, but the prosecutor must promptly disclose the evidence to the defendant. (3) Defendant’s rights. The defendant has the right to be present and to be represented by counsel and, if financially unable to obtain counsel, to have counsel appointed. The defendant shall be afforded an opportunity to testify, to present witnesses, to compel the attendance of witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. If the defendant testifies at the hearing, the defendant’s testimony shall not be used against the defendant at trial except for impeachment purposes or in a subsequent prosecution for perjury. (4) Prosecutor’s burden. The prosecutor must prove by clear and convincing evidence that the defendant is likely to pose a threat to the safety of others if released pending trial and that no release conditions will reasonably protect the safety of any other person or the community. (5) Evidence. The New Mexico Rules of Evidence shall not apply to the presentation and consideration of information at the hearing. The court may make its decision about pretrial detention based on documentary evidence, court records, proffer, witness testimony, hearsay, argument of counsel, input from a victim, and any other reliable proof presented at the hearing. (6) Factors to be considered. The court shall consider any fact relevant to the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release and any fact relevant to the issue of whether any conditions of release will reasonably protect the safety of any person or the community, including but not limited to the following: (a) the nature and circumstances of the offense charged, including whether the offense is a crime of violence; (b) the weight of the evidence against the defendant; (c) the history and characteristics of the defendant; (d) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release; (e) any facts tending to indicate that the defendant may or may not commit new crimes if released; and (f) whether the defendant has been ordered detained under Article II, Section 13 of the New Mexico Constitution based on a finding of dangerousness in another pending case or was ordered detained based on a finding of dangerousness in any prior case. G. Order for pretrial detention. The district court shall issue a written order for pretrial detention at the conclusion of the pretrial detention hearing if the court determines by clear and convincing evidence that the defendant is likely to pose a threat to the safety of others if released pending trial and that no release conditions will reasonably protect the safety of any other person or the community. An order containing findings of the individualized facts justifying the detention must be filed as soon as possible, but no later than three (3) days after the conclusion of the hearing. H. Order setting conditions of release. The district court shall deny the motion for pretrial detention if, on completion of the pretrial detention hearing, the court determines that the prosecutor has failed to prove the grounds for pretrial detention by clear and convincing evidence. At the conclusion of the pretrial detention hearing, the court shall issue an order setting conditions of release under Rule 5-401 NMRA. The court shall file findings of the individualized facts justifying the denial of the detention motion as soon as possible, but no later than three (3) days after the conclusion of the hearing. I. Further proceedings in cases initiated in magistrate or metropolitan court. If, after a preliminary examination, the district court finds no probable cause to believe that the defendant has committed a felony offense, the court shall set conditions of release and may remand any remaining misdemeanor charges to the magistrate or metropolitan court for further proceedings. J. Expedited trial scheduling for defendant in custody. The district court shall provide expedited priority scheduling in a case in which the defendant is detained pending trial. 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. K. Successive motions for pretrial detention and motions to reconsider. On written motion of the prosecutor or the defendant, the district court may reopen the detention hearing at any time before trial if the court finds that (1) information exists that was not known to the movant at the time of the hearing or circumstances have changed after the hearing, and (2) the information or changed circumstance has a material bearing on whether the previous ruling should be reconsidered. L. Appeal. Either party may appeal the district court order disposing of the motion for pretrial detention in accordance with Rule 5-405 NMRA and Rule 12-204 NMRA. The district court order shall remain in effect pending disposition of the appeal. M. Judicial discretion; disqualification and excusal. Action by any court on any matter relating to pretrial detention shall not preclude the subsequent statutory disqualification of a judge. A judge may not be excused from presiding over a detention hearing unless the judge is required to recuse under the provisions of the New Mexico Constitution or the Code of Judicial Conduct.