Rule 6-401. Pretrial release.

A. Hearing. (1) Time. The court shall conduct a hearing under this rule and issue an order setting conditions of release as soon as practicable, but in no event later than (a) if the defendant remains in custody, three (3) days after the date of arrest if the defendant is being held in the local detention center, or five (5) days after the date of arrest if the defendant is not being held in the local detention center; (b) first appearance or arraignment, if the defendant is not in custody; or (c) if the defendant remains in custody pending a hearing under Rule 6- 403(D) NMRA, then within three (3) days after a temporary detention order is placed or the date of the hearing conducted under Rule 6-403 NMRA if the defendant is being held in the local detention center, or five (5) days after the date of the hearing conducted under Rule 6-403 NMRA if the defendant is not being held in the local detention center. (2) Right to counsel. If the defendant does not have counsel at the initial release conditions hearing and is not ordered released at the hearing, the matter shall be continued for no longer than three (3) additional days for a further hearing to review conditions of release, at which the defendant shall have the right to assistance of retained or appointed counsel. (3) Local detention center; defined. A “local detention center” is one that is commonly used by the magistrate court in the normal course of business and not necessarily within the territorial jurisdiction of the court. B. Right to pretrial release; recognizance or unsecured appearance bond. Any defendant eligible for pretrial release under Article II, Section 13 of the New Mexico Constitution shall be ordered released pending trial on the defendant’s personal recognizance or on the execution of an unsecured appearance bond in an amount set by the court. The court may impose non-monetary conditions of release under Paragraph D of this rule, but the court shall impose the least restrictive condition or combination of conditions that will reasonably ensure the appearance of the defendant as required and the safety of any other person or the community. The court may order execution of a secured appearance bond only if the court makes written findings of particularized reasons why the release will not reasonably ensure the appearance of the defendant as required under Paragraphs E and F of this rule. C. Factors to be considered in determining conditions of release. In determining the least restrictive conditions of release that will reasonably ensure the appearance of the defendant as required and the safety of any other person and the community, the court shall consider any available results of a pretrial risk assessment instrument approved by the Supreme Court for use in the jurisdiction and the financial resources of the defendant. In addition, the court may take into account the available information about (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves alcohol or drugs; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant, including (a) the defendant’s character, physical and mental condition, family ties, employment, past and present residences, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record about appearance at court proceedings; and (b) whether, at the time of the current offense or arrest, the defendant was on probation, on parole, or on other release pending trial, sentencing, or appeal for any offense under federal, state, or local law; (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release; (5) any other facts tending to indicate the defendant may or may not be likely to appear as required; and (6) any other facts tending to indicate the defendant may or may not commit new crimes if released. D. Non-monetary conditions of release. In its order setting conditions of release, the court shall impose a standard condition that the defendant not commit a federal, state, or local crime during the period of release. The court may also impose the least restrictive particularized condition, or combination of particularized conditions, that the court finds will reasonably ensure the appearance of the defendant as required, the safety of any other person and the community, and the orderly administration of justice, which may include the condition that the defendant (1) remain in the custody of a designated person who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the court that the defendant will appear as required and will not pose a danger to the safety of any other person or the community; (2) maintain employment, or, if unemployed, actively seek employment; (3) maintain or commence an educational program; (4) abide by specified restrictions on personal associations, place of abode, or travel; (5) avoid all contact with an alleged victim of the crime or with a potential witness who may testify about the offense; (6) report on a regular basis to a designated pretrial services agency or other agency agreeing to supervise the defendant; (7) comply with a specified curfew; (8) refrain from possessing a firearm, destructive device, or other dangerous weapon; (9) refrain from any use of alcohol or any use of an illegal drug or other controlled substance without a prescription by a licensed medical practitioner; (10) refrain from any use of cannabis, cannabis products, or synthetic cannabinoids without a certification from a licensed medical practitioner; (11) submit to a drug test or an alcohol test on request of a person designated by the court; (12) return to custody for specified hours after release for employment, schooling, or other limited purposes; and (13) satisfy any other condition that is reasonably necessary to ensure the appearance of the defendant as required and the safety of any other person and the community. E. Secured bond. If the court makes written findings of the particularized reasons why release on personal recognizance or unsecured appearance bond, in addition to any non-monetary conditions of release, will not reasonably ensure the appearance of the defendant as required, the court may require a secured bond for the defendant’s release. (1) Factors to be considered in setting secured bond. (a) In determining whether any secured bond is necessary, the court may consider any facts tending to indicate that the particular defendant may or may not be likely to appear as required. (b) The court shall set secured bond at the lowest amount necessary to reasonably ensure the defendant’s appearance and with regard to the defendant’s financial ability to secure a bond. (c) The court shall not set a secured bond that a defendant cannot afford for the purpose of detaining a defendant who is otherwise eligible for pretrial release. (d) Secured bond shall not be set by reference to a predetermined schedule of monetary amounts fixed according to the nature of the charge. (2) Types of secured bond. If a secured bond is determined necessary in a particular case, the court shall impose the first of the following types of secured bond that will reasonably ensure the appearance of the defendant. (a) Percentage bond. The court may require a secured appearance bond executed by the defendant in the full amount specified in the order setting conditions of release, secured by a deposit in cash of ten percent (10%) of the amount specified. The deposit may be returned as provided in Paragraph L of this rule. (b) Property bond. The court may require the execution of a property bond by the defendant or by unpaid sureties in the full amount specified in the order setting conditions of release, secured by the pledging of real property in accordance with Rule 6-401.1 NMRA. (c) Cash or surety bond. The court may give the defendant the option of either (i) a secured appearance bond executed by the defendant in the full amount specified in the order setting conditions of release, secured by a deposit in cash of one hundred percent (100%) of the amount specified, which may be returned as provided in Paragraph L of this rule, or (ii) a surety bond executed by licensed sureties in accordance with Rule 6-401.2 NMRA for one hundred percent (100%) of the full amount specified in the order setting conditions of release. F. Order setting conditions of release; findings about secured bond. (1) Contents of order setting conditions of release. The written order setting conditions of release shall be provided to the defendant before release if the defendant is in custody or within three (3) days of the conditions of release hearing if the defendant is not in custody, and (a) include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the defendant’s conduct; and (b) advise the defendant of (i) the penalties for violating a condition of release, including the penalties for committing an offense while on pretrial release; (ii) the consequences for violating a condition of release, including the immediate issuance of a warrant for the defendant’s arrest, revocation of pretrial release, and forfeiture of bond; and (iii) the consequences of intimidating a witness, victim, or informant, or otherwise obstructing justice. (2) Written findings about secured bond. The court shall file written findings of the individualized facts justifying a secured bond as soon as possible, but no later than two (2) days after the conclusion of the hearing. G. Pretrial detention. If the prosecutor files a motion for pretrial detention, the court shall follow the procedures set forth in Rule 6-409 NMRA. H. Review of conditions of release by the magistrate court. (1) Review. If the magistrate court requires a secured bond for the defendant’s release under Paragraph E of this rule or imposes non-monetary conditions of release under Paragraph D of this rule, and the defendant remains in custody twenty- four (24) hours after the issuance of the order setting conditions of release as a result of the defendant’s inability to post the secured bond or meet the conditions of release in the present case, the defendant shall be entitled to a hearing to review the conditions of release. (2) Review hearing. The magistrate court shall hold a hearing in an expedited manner, but in no event later than five (5) days after the initial conditions of release hearing. The defendant shall have the right to assistance of retained or appointed counsel at the hearing. Unless the order setting conditions of release is amended and the defendant is then released, the court shall file a written order setting forth the reasons for declining to amend the order setting conditions of release. The court shall consider the defendant’s financial ability to secure a bond. No defendant eligible for pretrial release under Article II, Section 13 of the New Mexico Constitution shall be detained solely because of financial inability to post a secured bond unless the court determines by clear and convincing evidence and makes findings of the reasons why the amount of secured bond required by the court is reasonably necessary to ensure the appearance of the particular defendant as required. The court shall file written findings of the individualized facts justifying the secured bond as soon as possible, but no later than two (2) days after the conclusion of the hearing. (3) Work or school release. A defendant who is ordered released on a condition that requires that the defendant return to custody after specified hours shall, on motion of the defendant or the court’s own motion, be entitled to a hearing to review the conditions imposed. Unless the requirement is removed and the defendant is released on another condition, the court shall file a written order setting forth the reason for the continuation of the requirement. A hearing to review conditions of release under this subparagraph shall be held by the magistrate court within five (5) days of the filing of the motion. The defendant shall have the right to assistance of retained or appointed counsel at the hearing. (4) Subsequent motion for review. The defendant may file subsequent motions for review of the order setting conditions of release, but the court may rule on subsequent motions with or without a hearing. I. Amendment of conditions. The court may amend its order setting conditions of release at any time. If the amendment of the order may result in the detention of the defendant or in more restrictive conditions of release, the court shall not amend the order without a hearing. If the court is considering revocation of the defendant’s pretrial release or modification of the defendant’s conditions of release for violating a condition of release, the court shall follow the procedures set forth in Rule 6-403 NMRA. J. Petition to district court. (1) Case within magistrate court trial jurisdiction. A defendant charged with an offense that is within magistrate court trial jurisdiction may file a petition in the district court for review of the magistrate court’s order setting conditions of release under this paragraph only after the magistrate court has reviewed the conditions of release and made a requisite ruling under Paragraph H of this rule. The defendant shall attach to the district court petition a copy of the magistrate court order after the review of the conditions of release. (2) Felony case. A defendant charged with a felony offense who has not been bound over to the district court may file a petition in the district court for release under Rule 5-401(K) NMRA and this paragraph at any time after the defendant’s arrest. (3) Petition; requirements. A petition to the district court under this paragraph shall include the specific facts that warrant review by the district court and may include a request for a hearing. The petitioner shall promptly (a) file a copy of the district court petition in the magistrate court; (b) serve a copy on the district attorney; and (c) provide a copy to the assigned district court judge. (4) Magistrate court’s jurisdiction pending determination of the petition. On the filing of a petition under this paragraph, the magistrate court’s jurisdiction to set or amend the conditions of release shall be suspended pending determination of the petition by the district court. The magistrate court shall retain jurisdiction over all other aspects of the case, and the case shall proceed in the magistrate court while the district court petition is pending. The magistrate court’s order setting conditions of release shall remain in effect unless and until the district court issues an order amending the conditions of release. (5) District court review. The district court shall rule on the petition in an expedited manner. Within three (3) days after the petition is filed, the district court shall take one of the following actions: (a) set a hearing no later than ten (10) days after the filing of the petition and promptly send a copy of the notice to the magistrate court; (b) deny the petition summarily; or (c) amend the order setting conditions of release without a hearing. (6) District court order; transmission to magistrate court. The district court shall promptly send to the magistrate court a copy of the district court order disposing of the petition, and jurisdiction over the conditions of release shall revert to the magistrate court. K. Expedited trial scheduling for defendant in custody. The magistrate court shall provide expedited priority scheduling in a case in which the defendant is detained as a result of inability to post a secured bond or meet the conditions of release. The court shall hold a status review hearing in any case in which the defendant has been held for more than sixty (60) days. 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. L. Return of cash deposit. If a defendant has been released by executing a secured appearance bond and depositing a cash deposit under Paragraph E of this rule, when the conditions of the appearance bond have been performed and the defendant’s case has been adjudicated by the court, the clerk shall return the sum that has been deposited to the person who deposited the sum, or that person’s personal representatives or assigns. M. Release from custody by designee. The presiding judge of the magistrate court may designate by written court order responsible persons to implement the pretrial release procedures set forth in Rule 6-408 NMRA. A designee shall release a defendant from custody before the defendant’s first appearance before a judge if the defendant is eligible for pretrial release under Rule 6-408 NMRA, but may contact a judge for special consideration based on exceptional circumstances. No person shall be qualified to serve as a designee if the person or the person’s spouse is related within the second degree of blood or marriage to a paid surety who is licensed to sell property or corporate bonds within this state. N. Bind over to district court. For any case that is not within magistrate court trial jurisdiction, on notice to the magistrate court, any bond shall be transferred to the district court on the filing of an information or indictment in the district court. O. Evidence. Information offered in connection with or stated in any proceeding held or order entered under this rule need not conform to the New Mexico Rules of Evidence. P. Forms. Instruments required by this rule, including any order setting conditions of release, appearance bond, property bond, or surety bond, shall be substantially in the form approved by the Supreme Court. Q. Judicial discretion; disqualification and excusal. Action by any court on any matter relating to pretrial release shall not preclude the subsequent statutory disqualification of a judge. A judge may not be excused from setting initial conditions of release unless the judge is required to recuse under the provisions of the New Mexico Constitution or the Code of Judicial Conduct.