Rule 6-202. 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 in the magistrate court 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 metropolitan 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 6-403 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 6-104 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. A dismissal under this subparagraph shall not prevent the prosecution from proceeding either by indictment or criminal information in the district court. 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 Magistrate Courts. C. Recording of examination. A recording shall be made of the preliminary examination. If the defendant is bound over for trial in the district court, the recording shall be filed with the clerk of the district court with the bind-over order. Any party may request a duplicate of the recording from the district court within six (6) months following the preliminary examination. 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. A finding of no probable cause shall not prevent the prosecution from proceeding either by indictment or criminal information filed in the district court. (2) If the only remaining charges are within magistrate court trial jurisdiction, the court shall either conduct an arraignment immediately on the remaining charges or shall hold an arraignment within the time limits set forth in Rule 6-506(A) NMRA, and the case shall then proceed under the Rules of Criminal Procedure for the Magistrate Courts. (3) If the court finds that there is probable cause to believe that the defendant committed one or more offenses not within magistrate court trial jurisdiction, the court shall bind the defendant over for trial in the district court. All misdemeanor offenses charged in the complaint shall be included in the bind-over order, and conditions of release set by the magistrate court shall continue in effect unless or until evaluated by the district court. E. Transfer to district court. (1) If the defendant is bound over for trial by the magistrate court, the district attorney shall file the following with the magistrate court: (a) a copy of the information filed in district court; and (b) if an order is entered by the district court extending the time for filing an information, a copy of that order. (2) When a copy of the information filed in district court is filed in the magistrate court, the magistrate court shall at that time transfer the magistrate court record, along with the bind-over order, to the district court. (3) If an information is not timely filed in the district court in accordance with the requirements of Rule 5-201(C) NMRA, the magistrate court, on motion or of its own initiative, shall dismiss the charges without prejudice within two (2) days of the expiration of the applicable filing deadline. F. Effect of indictment. If the defendant is indicted prior to a preliminary examination for the offense pending in the magistrate court, the district attorney shall forthwith advise the magistrate court, and the magistrate court shall take no further action in the case, provided that any conditions of release set by the magistrate court shall continue in effect unless or until evaluated by the district court. G. Bail bond. Unless the defendant is discharged, the magistrate court shall retain jurisdiction over the defendant and the bond until an information or indictment is filed in the district court or until twelve (12) months after the preliminary examination, whichever occurs first. If the defendant is indicted or an information is filed, the magistrate court shall transfer any bond to the district court. Unless the proceedings are remanded to the magistrate court, all further action relating to the bond shall be taken in the district court.