Criminal Law Practice Areas

Whether you are facing accusations involving theft, assault, white collar crimes, or drug trafficking, we can assist you.  We are a full service law firm that is able to use its vast knowledge to protect the accused. Montrose Law handles the following areas of criminal law:

1. Misdemeanor vs. Felony

In New Mexico, a felony crime is generally considered to be a crime with a potential jail sentence exceeding 1 year. Examples of felony crimes are burglary,  drug trafficking, kidnapping, and all sex crimes.  A misdemeanor crime is generally defined as a less serious crime with a potential jail sentence of less than one year. Examples of misdemeanor crimes are DWI (1-3) , assault, driving on a revoked license, possession of marijuana (under a certain amount) and all other traffic offenses.

How and When You Can be Arrested

For the commission of  misdemeanor crimes, you may be arrested under the following circumstances:

New Mexico.  Typically, you will be called to court by a summons rather than being arrested if you are not at the scene when the alleged misdemeanor was committed.

You may be arrested for a felony offense under the following circumstances:

After you are arrested, you will be transported to a police station or jail.  At that time you will be booked which usually includes fingerprinting and photographing.  In some circumstances, you will be advised of your Miranda rights, and asked to answer questions.  You should never provide a statement to police without legal counsel present.

What To Do After Arrest

After arrest, it is beneficial to your case to take the following steps:

The Ten- Day Rule

If you have been arrested and are unable to post bond, the State has only ten days from the date of your arrest to submit your case for a Preliminary Hearing or a Grand Jury proceeding.  If the State fails to do so, you will automatically be released after this time period.  In less serious cases, such as possession of a controlled substance, it is not uncommon for a defendant to be released on the ten-day rule.

Do I have to talk to the police about my involvement in a criminal case?

You have an absolute right under the 5th Amendment of the U.S. Constitution not to talk to the police in this situation, and you should never talk to the police without first obtaining legal counsel.  Although the police may threaten you with arrest if you refuse to answer questions, or you are afraid that this will make you appear guilty, you should never agree to make an uncounseled statement.  If your case eventually proceeds to trial, the jury will be shown only incriminating portions of your statement and any attempt on your part to show a different story will be used by the prosecuting attorney to try and show that you’re not being truthful.

Your basic rights after arrest, are called your Miranda rights.  They include the right to remain silent, the right to a lawyer, the right to a court appointed lawyer if you cannot afford private counsel.  In New Mexico you also have the right to make three telephone calls beginning no later than twenty minutes after your arrival at a police station, sheriff’s office, or other place of detention.  You should always consider calling a family member or close friend who can apprise people of your situation and arrange your bond.

At Montrose Law, your case is generally on a pre-trial and trial progression.

Pre-Trial Case Preparation

•  Confirm Receipt of Discovery: Indictment/Complaint, Police Reports, GJ/Prelim Records.
•  Review All Discovery and Charging Documents & Applicable Recordings (GF/Prelim)
•  Screen Discovery for Pretrial Motions, Motions in Limine, & Pretrial Interview Questions
•  Make Appropriate Investigation  Requests: Photos, Recordings, Site Visits, Evidence View, etc.
•  Review Jury Instructions, Statues, Annotations and Caselaw Applicable to Charges.
•  Screen Grand Jury/Prelim Proceeding Reviewed.  Who testified? Proper Instructions?
•  Conduct In-Person Client Interview including: Discovery Review, Bio, & Treatment Plan.
•  Develop Theory of the Defense Case.  A theory is an ongoing dynamic process with could take different turns as a case proceeds.
•  Conduct Investigation: Witnesses Interviews, Site Visits, Subpoenas, etc.
•  Plea Negotiations On-Going: All Plea offers will be communicated with client.
•  Demand and Conduct Pretrial/Prehearing Interviews.
•  Pretrial Motions (Dismissals/Suppressions/Etc.) We File Pretrial Motions IN ADVANCE of trial. NMRA 5-212 (suppression w/I 20 days from arraignment):

Trial Preparation

•  A physical trial binder(s) is created.
•  Finalize Theory of the Defense Case & Evaluate State’s Best Case. Develop Rebuttal Arguments.
•  Analyze Evidence Issues (getting evidence and keeping damaging evidence out.)
•  Disclosure of Witness List (final due minimally 10 days prior to trial.)
•  Defense Discovery Disclosure (final due minimally 10 days prior to trial.)
•  Issue Subpoenas for all witnesses with favorable defense evidence (state or defense witnesses).
•  Motions in Limine Completed and Filed (usually due week before trial).
•  Draft Defense Jury Instructions (annotated and clean versions) (due first few days of trial).
•  Prepare Opening Statement, Cross Exams, Direct Exams, and Closing Argument.
•  Arrange for Clothing for Clients in Custody. We Will Review Trial Suggestions & Procedure with you.
•  Prepare Defense Exhibits, Trial Charts, and Closing Argument Charts.
•  Prepare Jury Selection Chart and Voir Dire Exam (general and hypos)
•  Motions in Limine, 104 Hearings, Opening, Examinations, Closing Argument

Battery and Aggravated Battery (Misdemeanor Charges)

Battery is unlawfully contacting or hitting another person in an offensive, rude, harmful, or forceful manner.  Actual physical contact must have occurred.  The accused must have intentionally touched the other person.

New Mexico Battery (Misdemeanor) Punishment

A simple batter charge carries a punishment range of 0-6 months incarceration. A person convicted of simple battery may also be required to pay up to a $500 fine and spend up to 6 months on probation.  The court can use its discretion when sentencing a person.  The court takes the person’s criminal record and what occurred during the particular incident into consideration when deciding the type of sentence that will be imposed.  Often  times, a first offense can result in a deferred sentence which result, in possibly getting the charges dismissed and a reduction of fines.

New Mexico Aggravated Battery (Felony) Charges

Aggravated battery is a more serious criminal offense than simple battery. Aggravated battery involves the touching or physical contact of a person with the intent to cause an injury. Aggravated battery may be charged as either a full misdemeanor carrying up to 364 days in jail or as a felony carrying up to three years in prison. Felony aggravated battery charges involve the use of a deadly weapon that either caused or could have caused great bodily harm to the other person.

If the accused did not intentionally make physical contact with the person, then the accused did not commit battery. Additionally, if the accused made contact without the intent of acting in an offensive or harmful manner, then the criminal intent doesn’t exist, and the person is not guilty of aggravated battery. Valid defenses also include acting in self-defense or preventing other people from being harmed.

Assault in New Mexico is defined as causing another person to be reasonably apprehensive of imminent offensive or harmful contact.  Charges may be included with battery charges.

Assault (Misdemeanor)

There are several types of behavior that are classified as assault, according to New Mexico laws.  Assault is:

• Intentionally engaging in verbal threats or other types of conduct that cause a reasonable fear of being hurt during that moment.
• Attempt to touch someone in an offensive of harmful manner
• Making offensive comments about a persons reputation, gender, race, religion, or sexual orientation

Aggravated Assault (Felony)

Aggravated assault is considered a more serious offense because it tends to accompany a harmful physical act that causes serious bodily injury.  Aggravated assault includes:

• Intentionally assaulting someone while planning to commit a felony offense.
• Making someone feel reasonable apprehension of harm while holding or using a deadly weapon.

Assault (Misdemeanor) Punishment

Misdemeanor assault conviction can entail a maximum $500 fine. It may also include a maximum 6 months jail sentence and up to 6 months of probation.  If the accused is convicted of committing battery as well, the sentence will be more extensive.

Aggravated Assault (Felony) Punishment

The punishment for an aggravated assault conviction (4th degree felony) is a maximum 18 months imprisonment, fines and probation.  If a battery conviction was included in the case, the punishment for battery will be added to the aggravated assault sentencing.

Defenses to Assault Charges

A defense for an assault case is proving that the accused did not intend to cause a person to feel apprehensive of harmful or offensive contact.  Depending on the facts of the case, it can also be shown that the accused could not have possibly caused immediate harm to the person.  Also, if the apprehension of the other person felt was reasonable considering the circumstances, then a defense to assault charges could be raised.

Theft is the illegal act of taking someone’s property without consent.  Different types of theft crimes include identity theft, auto theft, and burglary.  The seriousness of the offense and the penalties are affected by the value of the property taken, if any other criminal offenses occurred in order to execute the theft, and if the use of deadly weapons or force was used.

Identity Theft

Identity theft is the use of someone’s identity in order to get money, products, or services.  Identity theft happens when personal identifying information such as a credit card number, social security number, contact information or financial information is stolen.  After personal information is retrieved, it can be used to pen new credit cards accounts, receive medical services and to obtain personal loans.  Serving prison time, paying fines, and probation are some of the punishments associated with identity theft.

Vehicle Theft

Vehicle theft is unlawfully taking someone’s vehicle.  The punishments for auto theft are harsher for repeat offenders.  Some of the punishments for auto theft are:

• Maximum 18 month prison sentence for a first time offender
• Maximum 3 years prison sentence for second time offender
• Maximum 9 years prison sentence for third time offenders

Burglary

Burglary is breaking and entering into a residence or dwelling with the intent to commit a criminal offense.  Residential burglaries are generally vigorously prosecuted due to the possible dangerous circumstances surrounding an invasion of someone’s personal residence.

Manslaughter is the unlawful killing of a person either intentionally or unintentionally.  Being accused of taking someone’s life carries a social stigma that can negatively impact your relationships, your job and overall livelihood.  As soon as you become a suspect in a manslaughter case or are arrested, you need experienced criminal defense attorneys looking out for you.  New Mexico Legal Group’s top priority is protecting the rights and welfare of the people accused of criminal offenses statewide.  We strongly believe in asserting our clients rights  and combating the charges against them.  Often, manslaughter will not be originally charged, rather you will be charged with 1st degree murder of 2nd degree murder and our goal at trial may be to accept a manslaughter charge which carries a much lower penalty.

Involuntary Manslaughter

Involuntary manslaughter is the unintentional killing of a person while committing a misdemeanor  criminal offense.  Involuntary manslaughter can also occur if a person is engaging in a lawful act but unintentionally kills someone by being negligent or not exercising due care.  Involuntary manslaughter is classified as a fourth degree felony with sentencing up to 18 months in prison and probation.

Voluntary Manslaughter

Voluntary manslaughter is unlawfully killing someone in the heat of passion or during a quarrel.  It is not an act of premeditation.  Voluntary manslaughter involves the intent to kill or the intent to cause serious bodily harm. Voluntary manslaughter is a third degree felony.  Criminal punishment for a conviction incudes up to 3 years in prison and probation.

Manslaughter defenses

As soon as we start working on a case, we evaluate the facts and figure out which defenses are applicable.  The prosecutors have the burden of proof in the case so we are able to use different legal tactics to instill the requisite reasonable doubt needed to receive a not guilty verdict from the jury.  We can raise the issue of a reasonable doubt by ruling out our client as the person who committed the crime.  If the killing occurred as an act of self-defense, that can also be used as a way to get a favorable verdict.

Money Laundering

Money laundering involves concealing the origin of money obtained through illegal means.  An effective way to defend against money  laundering charges is by showing that the accused did not knowingly engage in any financial transactions with the intent to conceal the source of the money.

Extortion

Extortion is the criminal act of getting money, property or services through illegal means, such as a threat to do bodily injury.  Money, property and other types of items are received through  force or threats.  The severity of punishment associated with an extortion conviction depends on the severity of the acts committed and the value of the money or services involved.  The types of threats associated with extortion are:

• Threatening to physically harm someone
• Threatening to damage a person’s property
• Threatening to ruin a person’s reputation

Blackmail

Blackmail is demanding money or services by threatening to expose information about a person that could potentially cause great harm on a social or financial level.  Unlike extortion, blackmail usually doesn’t involve physical force or threats of physical force.  The information that is threatened to be exposed is usually true.  Blackmail is normally charged as a felony offense and could lead to more than one year of imprisonment upon conviction.

New Mexico Definition of Fraud

According to section 30-16-6 of New Mexico statutes, fraud is deliberately deceiving and manipulating someone in order to take something valuable that belongs to that person.  The severity of the fraud charges depends on the value of the items that are misappropriated.

• Petty misdemeanor if the value of the misappropriated property is $250 or less
• Full misdemeanor if the value of the misappropriated property is at least $250 but less than $500
• Fourth degree felony if the value of the misappropriated property is at least $500 but less than $2,500.
• Third degree felony if the value of the misappropriated property is at least $2,500 but less than $20,000
• Second degree felony if the value of the misappropriated felony is at least $20,000 or more

Criminal Punishment for Fraud

The punishments for fraud convictions vary depending on the amount of money or property that was obtained while committing the crime. Sentencing for fraud can include:

• A jail sentence of up to 6 months; up to a $500 fine; up to 6 months of probation for a petty misdemeanor
• A jail sentence that doesn’t exceed 1 year; up to a $1,000 fine; and up to 1 year of probation for a full misdemeanor
• Prison sentence that doesn’t exceed 18 months for fourth degree felony
• Prison sentence that doesn’t exceed 3 years for a third degree felony
• Prison sentence that doesn’t exceed 9 years for a second degree felony

Defenses to Fraud Charges in New Mexico

The prosecutors have the burden of proof in fraud cases.  These type of cases tend to be difficult to prove since it requires not only showing that the accused intentionally deceived someone but also showing that the victim relied on specific misstatements.  Based on the facts, we may also dispute the victim’s actual reliance on the information received.  During legal proceedings, Attorney Montrose, would contest the prosecutor’s ability to sufficiently prove all elements of the fraud charges.

Embezzlement is misappropriating someone else’s money and using it for one’s own purposes.  Embezzlement tends to occur in places of employment.  Often times the prosecutor will charge multiple counts of embezzlement which often times can be pled down to fewer counts.

Definition of Embezzlement

Embezzlement occurs when people violate a position of trust by taking funds belonging to someone else or belonging to a business and using it for their own purposes.  According to New Mexico statutes, embezzlement is a:

• Petty misdemeanor if the embezzled items are worth $250 or less
• Full misdemeanor if the embezzled items are worth $250 but less than $500
• Fourth degree felony if the embezzled items are worth $500 but less than $2,500
• Third degree felony if the embezzled items are worth $2,500 but less than $20,000
• Second degree felony if the items embezzled are worth $2,500 but less than $20,000

Embezzlement Punishments

The criminal punishments for embezzlement vary based whether the conviction is for a felony or misdemeanor.  Felony convictions usually get harsher sentencing by the court.  Prior convictions, the overall value of the funds or items embezzled, and any mitigating factors are all taken into consideration.  Punishments include:

• Up to 6 months in jail and maximum $500 fine for a petty misdemeanor
• Up to 1 year in jail, up to $1,000 fine, and up to 1 year probation for full misdemeanor
• Up to 18 months in prison for fourth degree felony
• Up to 3 years in prison for third degree felony
• Up to 9 years in prison for second degree felony

Embezzlement Defenses

Embezzlement cases usually involve evidence of financial transactions that can be traced directly or indirectly to the person being accused of the crime.  During our investigation and the discovery phase of the case, we carefully review all of the evidence collected by the prosecution.  Sometimes conclusions are made based on presumptions rather than hard facts.

New Mexico Homicide Statutes

Homicide is the deliberate intentional killing of another person.  According to New Mexico statutes, homicide constitutes the unlawful and unjustified killing of a person.

Homicide is defined as:

• Willful and premeditated killing
• Killing that occurred while committing a felony
• Killing someone by engaging  in extremely reckless conduct that demonstrates an utter disregard for human life, also known as depraved mind

Felony Murder

Felony murder is a form of homicide.  This type of killing occurs during the commission of a felony criminal offense, such as burglary, rape, arson, or kidnapping. Even if the killing is unintentional, it is classified as a homicide since it is foreseeable that someone could be killed during the commission of a dangerous crime.

Homicide Criminal Punishment

Sentencing for homicide convictions is amongst the most severe.  The type of punishment received depends on the facts of each case and the circumstances surrounding the murder.  Possible punishments are:

• Up to 9 years in prison for second degree felony
• Up to 18 years in prison for first degree felony
• Life imprisonment  for capital felony

New Mexico Aiding and Abetting

Aiding and abetting is assisting in the commission of a crime.  People who engage in aiding and abetting are more commonly referred to as accomplices.  Accomplices must intentionally be involved in the planning of the crime and want the crime to be carried out.  Even if they do not actually commit the crime themselves, accomplices help the offender execute or attempt to execute the crime.

Punishment for Aiding and Abetting in New Mexico

There are a range of punishments that can be imposed on a person convicted of aiding and abetting.  Punishments issued by the court may include:

• Community service
• Monetary fines
• Up to 1 year in prison for a misdemeanor offense
• More than one year of incarceration for a felony offense
• Probation

Defenses to Aiding and Abetting Charges

It can be difficult for prosecutors to satisfy the standard of proof required in an aiding and abetting case.  An important element that must be met for any aiding and abetting conviction is showing that the accused had the requisite intent to assist in the commission of the crime.  Sometimes people may unknowingly engage in an activity without being aware that they were assisting in a crime being carried out.

New Mexico Indecent Exposure Statutes

Indecent exposure is exposing genitals to the public.  Indecent exposure is a misdemeanor that carries a punishment of 6 months to 1 year in jail, fines, participation in mandatory counseling, and probation.  Aggravated indecent exposure is exposing genitals in public with the intent to threaten and intimate someone  Aggravated indecent exposure is a fourth degree felony that could lead to an 18 month prison term.

Rape

Criminal sexual activity is forcing or coercing someone to participate in sexual intercourse against their  will.  Rape and sexual assault involve penetration of the person’s body with genitalia or an object. Rape is a felony offense with punishment that range from 18 months to 9 years in prison.  Rape committed with the intent to kill someone is a first degree offense with a maximum 18 years prison sentence.

Child Molestation

Sexual conduct with a minor is illegal.  Intentionally touching a child in a sexual manner or forcing a child to touch a person’s sexual body parts constitutes criminal sexual contact of a minor.  The severity of the punishment depends on the child’s age, if the application of force or coercion resulted in physical harm to the child, and if a deadly weapon was used.  These criminal offenses are felonies that can range from 18 months to 9 years in prison.

Prostitution

Prostitution is engaging in sexual activities for payment.  Prostitution is a petty misdemeanor with a punishment of up to 6 months in prison and a fine.  The criminal punishments are harsher for repeat offenders.

Domestic violence charges are particularly hard to deal with since they involve family members and people you have close relationships with.  These types of charges can take an emotional toll on the entire family.  When you are facing prosecution, you risk developing a criminal record that will adversely affect your life in many ways.

New Mexico Domestic Violence Laws

Domestic violence situations often involve assault and battery against a member of the household.  An assault consists of engaging in conduct that causes the victim to feel threatened or apprehensive about  being immediately harmed.  Battery is unlawfully touching the victim in an offensive or harmful manner.  Aggravated battery is unlawfully touching the victim with the intent to cause serious physical injury.

New Mexico Domestic Violence Punishments

Factors that affect the punishment imposed in domestic violence cases are the extent of the injury caused to the victim, the events that occurred, and if the offender has previous criminal convictions.  Some of the criminal penalties for domestic violence are:

• Mandatory domestic violence or anger management counseling
• Monetary fines
• Up to 6 months in jail for a petty misdemeanor
• Up to 1 year in jail for a full misdemeanor
• Up to 18 months in prison for a fourth degree felony
• Up to 3 years in prison for a third degree felony
• Probation

Domestic Violence Defenses

Domestic Violence cases are amongst the hardest for prosecutors to litigate due to the personal nature of the relationship between the victim and the accused.  Often times, the victim may not to cooperate or testify.  Sometimes the victim’s statements are contradictory or difficult to verify.  There are also instances when the allegations are completely false.  If the incident is not reported right away, there may be lack of evidence to prove that the accused committed a crime.

New Mexico Drug Possession Statutes

New Mexico laws regarding illegal drug possession tend to be based on the abusive tendencies associated with the respective drug.  It is illegal for people to possess a controlled substance without a valid prescription.  Some of the drugs considered the most dangerous are cocaine, heroin, and meth.  Under certain conditions, people diagnosed with cancer are permitted to possess and use marijuana.

Drug Possession Criminal Punishment

Sentencing for drug possession convictions vary.  The penalties can range from paying a minor fine and spending a few days in jail to being imprisoned for more than a year.  The extent of the punishment depends on the type of drugs in the offender’s possession, the quantity, and the offender’s criminal record.

• No more than 15 days in jail and at least a $100 fine for petty misdemeanor
• No more than 1 year in jail and up to a $1,000 fine for misdemeanor
• No more than 18 months of imprisonment for fourth degree felony

Drug Possession Defenses

Facts are reviewed to create a strong defense for your case.  Sometimes, people accused of drug possession are subjected to criminal procedures that are not properly executed by law enforcement.  The evidence may have been seized without police officers having a valid warrant or without having probable cause to begin a search.  Some people are not informed of their rights and don’t realize that they are not required to speak to police officers without having an attorney present.

Due to the threats drug trafficking pose to law enforcement and the collateral effects it has on the general population within the state of New Mexico, these cases are being more aggressively pursued.  The state wants to reduce the availability of  highly abusive controlled substances such as cocaine, meth, and heroin.  If you have been charged with drug trafficking, you need a skilled criminal defense attorney who will work hard to fight for you rights.

New Mexico Drug Trafficking Laws

Drug trafficking is a serious felony offense that encompasses transporting, manufacturing, and delivering controlled substances.  Even when people aren’t involved in drug trafficking, once the amount of drugs in a person’s possession exceeds a certain amount, that presumption will be made by law enforcement.

Drug Trafficking Criminal Punishment

Due to the large quantity of controlled substances involved in most drug trafficking cases, the criminal punishments tend to be more severe than with other drug related offenses.  Drug trafficking in certain areas such as school zones, parks, daycare centers and recreational facilities or using a minor in the transactions could lead to added, harsher criminal penalties.  Conviction in a drug trafficking case could lead to years of imprisonment, probation, and fines unless you have a highly qualified attorney representing you.  A permanent criminal record with a drug trafficking conviction will create obstacles for future employment and will tend to raise suspicion by law enforcement whenever you are stopped for a possible driving infraction or for an reason whatsoever.

The use, production, distribution, and possession of controlled substances are regulated by New Mexico state laws and federal laws.  If you are charged with illegal possession of a controlled substance, it is advisable to retain a qualified criminal defense attorney to represent  you.  In some instances the punishments rendered for drug possession are minor but you shouldn’t risk jeopardizing your ability to get the charges dismissed or reduced with the help of an experienced attorney.

Possession of Marijuana

New Mexico’s medical marijuana laws permit people to legally use marijuana when it helps alleviate certain types of medical conditions.  A person with a debilitative  medical condition must work in conjunction with a medical doctor who will provide a prescription.  It is a criminal offense, either a misdemeanor or felony depending on the amount, to possess marijuana without a valid doctor’s prescription.

Possession of Meth, Cocaine and Heroin

Drugs in New Mexico are classified according to schedules.  The schedules list controlled substances based on their potential for being abused, whether the drugs can be used for medicinal purposes and the extent of the physical and psychological damage abuse of the drug may cause.  Drugs such as heroin, cocaine, and meth are well-known for their highly abusive and addictive potential.

Criminal Punishments for Possession of Controlled Substances

Criminal penalties associated with illegal possession of controlled substances are:

• Monetary fine between $100 to $1,000 for a first offense petty misdemeanor
• Up to one year in jail and a fine for a full misdemeanor
• Prison sentence not to exceed 18 months for fourth degree felony
• Prison sentence not to exceed 3 years for third degree felony

Illegal Use and Possession of Controlled Substances

According to section 30-31-23 of New Mexico statutes, the intentional possession of a controlled substance such as marijuana, cocaine, meth, and heroin, is against the law.  It is illegal to possess any type of illegal substance, whether it is an ounce of marijuana or a large quantity of meth.  The penalties imposed for drug convictions differ based on the quantity of drugs involved in the case.

Legal Use of Marijuana for Medical Purposes

The Lynn and Erin Compassion Use Act prevents people from facing criminal or civil penalties for using marijuana for medical purposes.  People who are exempt from being prosecuted are diagnosed by a doctor as being afflicted with a debilitative medical condition.  The use of marijuana is under the supervision of a medical doctor who provides a prescription.  Certain medical conditions that marijuana is used to treat includes epilepsy, glaucoma, multiple sclerosis, cancer, and HIV.

Drug Possession, Drug Trafficking and Drug Sales

Drug possession charges may begin when an illegal controlled substance is allegedly found on your person or your property.  Usually drug possession consists of having a small quantity of the controlled substance for personal use.  Drug trafficking is the possession and transportation of controlled substances.  Drug trafficking is an illegal commercial activity that involves possessing a large amount of controlled substances.  Selling drugs is the act of giving people the controlled substances in exchange for compensation.

In New Mexico, for pending felony cases, the clock starts ticking on the date of your arraignment.  After that date, the court will look at various factors to determine how long the prosecution has to bring you case to trial.  Essentially, you have the right to a “speedy” trial, but what is considered “speedy” depends on factors such as the complexity of your case, the number of charges, and the number of witnesses in your case. The nine month mark will typically implicate your speedy trial rights and may create a presumption that you have become prejudiced by the delay in prosecuting you case, however recent cases have made speedy trial uses difficult to assert.

Time limits for cases that have not yet been filed are governed by the statute of limitations.

Statutes of Limitation

The state has certain time limits, called Statues of Limitations, that must be adhered to when prosecuting certain crimes.  Below is a list of certain categories of felony crimes and their Statutes of Limitations:

1. For a second degree felony, within six years from the time the crime was committed;
2. For a third or fourth degree felony, within five years from the time the crime was committed;
3. For a misdemeanor, within two years from the time the crime was committed;
4. For a petty misdemeanor, within one year from the time the crime was committed;
5. For any crime against or violation of the revenue laws of this state of Section 51-1-38 NMSA 1978, within three years from the time the crime was     committed;
6. For any crime not contained in the Criminal Code [30-4-1 NMSA 1978], or where a limitation is not otherwise provided for, within three years from the time the crime was committed; and
7. For a capital felony or a first degree violent felony, no limitation period shall exist and prosecution for these crimes may commence at any time after the occurrence of the crime

Release options

The court may consider several release options, when setting your conditions of release.  These include the following:

1. Release on own Recognize (ROR). If the judge is convinced that the defendant is not a risk, the judge may release the defendant on his own  recognizance.   This means that no bail is required.  However, the defendant must abide by all other conditions of release set by the judge.
2. Cash only bond.  In this situation, the defendant must present the entire amount of the bail set by the judge before he will be released from custody.  If the defendant appears for all Court dates, he will receive his money back at the end of his case.
3. Surety bond.  In this situation, a bail bondsman may guarantee to the Court the full amount of the bail set by the Court on behalf of the defendant.  In this situation, the defendant will typically provide the bail bondsman with 10% of the total bond.  For this service, the bail bondsman retains the 10% fee paid to him by the defendant.  The bail bondsman provides his guarantee to the Court that he is responsible for the bond if the defendant should fail to appear in Court.
4. Property bond.  The Court records a lien on the property of the defendant or someone posting property on behalf of the defendant to secure the bail amount.
5. Ten percent to the Court.  In some situations, the judge will allow the defendant to post 10% of his total bond with the Court.  This means that should the defendant fail to appear for any Court appearance, he, or the party providing the money on his behalf, will be required to pay the full bond to the Court.  However, if the defendant keeps all of his Court appearances, he will receive back his 10% payment at the end of his case.

What happens if you cannot make bail?

If, at your arraignment, the judge sets your bond in an amount of money that you are unable to produce, you may file a motion to reconsider the conditions of your release.  The Court may consider lowering your bond if significant time has passed while you have remained in custody, or id you or your legal counsel are able to provide additional information that supports the imposition of a lower bond.  The Court may also consider other alternatives to posting bond, such as a release onto third party custody, or house arrest.

In a felony case, arraignment happens at two different times.  After you are arrested, you are typically arraigned in Magistrate Court.  These courts do not have actual jurisdiction over felony charges, but are used to advise you of your rights and set initial conditions of you release, including your bail amount.  If you are subsequently indicted on felony charges, you will be arraigned in District Court.  At your District Court arraignment, you will be formally charged with your alleged crimes, and the Court will again consider your conditions of release, which will include your bond amount.

What happens at my arraignment?

At your felony arraignment, you will be represented by either private legal counsel, or the public defender.  Your attorney will be provided with a copy of your indictment (alleged crimes), and will advise you of the penalties of each.  When your case is called, the prosecutor will ask you to admit your identity, and to confirm that you are represented by legal counsel.  The prosecutor will then read the indictment against you, or you may waive a formal reading.  At that time, the Court will ask you to enter a plea of guilty, no contest, or not guilty. It is very rare to enter a guilty or no contest plea at arraignment. Following the entry of your plea, the Court will consider your conditions of release, including the amount of your bail.  Both the prosecutor and your legal counsel may present argument to the Court regarding any conditions of your release, and your attorney may raise any legal challenges to the sufficiency of the criminal indictment at that point.

How should you prepare for your arraignment?

It is important to be in contact with your legal counsel and any other individuals who can present positive information on your behalf to the Court, prior to your arraignment.  It is important that your attorney have a complete understanding of not only your criminal history, but you work history, educational background,  family history, and all other information pertinent to the conditions of your release.  You may ask an employer, counselor, or other key figure in your life to write a letter to the court on your behalf.  If you have family members with whom you could reside under house arrest, or into whose custody you could be released, you should ask those family members to appear in Court.

What happens if I cannot meet the conditions of my release?

If, at your arraignment, the judge sets your bond in an amount of money that you are unable to produce, you may file a motion to reconsider the conditions of your release.  The Court may consider lowering your bond if significant time has passed while you have remained in custody, or if you or your legal counsel are able to provide additional information that supports the imposition of a lower bond.  The Court may also consider other alternatives to posting bond, such as a release into third party custody, or house arrest.

What should I do if I receive a target letter from a Grand Jury?

In Dona Ana County and several other counties in the state, criminal charges are brought by grand juries.  A grand jury target letter will generally inform you that you are the subject o f a grand jury inquiry and have the right to appear and give testimony.  You should contact an attorney immediately if you receive this type of letter.  In many instances you will be advised not to appear in front of the grand jury.  Also, if the appropriate, your attorney may be able to negotiate a pre-indictment plea on your behalf.   You should never appear in front of a grand jury without first obtaining legal advice.

Can I testify and present evidence to the Grand Jury?

While you do have the right to testify at Grand Jury proceedings, it is usually not advisable to do so.  The actual Grand Jury proceeding is not conducive to a proper preparation of the defense case.  For example, your attorney is not allowed to call, question, or cross-examine witnesses, or to introduce evidence to the Grand Jury.

This does not mean, however, that you cannot influence the Grand Jury.  The laws in New Mexico have recently changed, to expand the type of information that a prosecuting attorney must present to the Grand Jury.  In many cases, your attorney will be presenting questions for the prosecutor to ask State’s witnesses, as well as providing other information that may help to establish your innocence.

Can I obtain a copy of my Grand Jury proceedings?

Yes.  Grand Jury proceedings are required by law to be tape-recorded.  Your attorney can obtain copies of the Grand Jury tapes after the Grand Jury has completed its proceedings.  Often, your attorney may use testimony that was presented at the Grand Jury as part of his/her investigation of the case, or to use that testimony to your advantage at trial.

When you have been accused of a crime, or anticipate being charged with a crime, it is important to begin an early investigation of you case.  You should contact a criminal attorney at the very beginning of your case to initiate an investigation.  Your attorney will use investigators, experts, and other tools at his disposal to begin gathering evidence often before the State has had a chance to fully investigate your case.

How is an early case investigation conducted?

By hiring legal counsel early in your case proceedings, you may be able to gather information faster, more efficiently, and more effectively than the prosecution.  A good case investigation may involve the following elements:

• Crime scene investigation
• Witness location and witness interviews (often by private investigator)
• Polygraph examination