Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

3.2-7 Presentation of Evidence

A. Order of Presentation (See §3.5-2(A) of this Benchbook regarding request for record to be made of evidence)

1. The plaintiff or prosecution calls and examines each witness for the plaintiff or prosecution. After each witness testifies, the defendant has an opportunity to cross-examine. If the defendant cross-examines, the plaintiff may conduct redirect examination. After all of the plaintiff’s witnesses testify, the plaintiff rests.
2. The judge hears appropriate oral motions, which may be made by either party at this point in the proceedings. See §3.2-11 of this Benchbook regarding motions during trial.
3. If the defendant did not present an opening statement at the beginning of the trial, the opening statement may be given before the defendant's first witness is called.
4. Although the defendant is not required to present any evidence or call any witnesses, the defendant has an opportunity to call and examine his or her own witnesses at this point. After each witness testifies, the plaintiff has an opportunity to cross-examine. If the plaintiff cross-examines, the defendant may conduct redirect examination. After presenting all of his or her witnesses, the defense rests.
5. The plaintiff in a civil case or prosecution in a criminal case may call rebuttal witnesses and then rest its entire case.

   a. If the defendant did not call witnesses or present any evidence, the plaintiff or prosecution shall not call rebuttal witnesses.

   b. Rebuttal witnesses are called only to rebut evidence that has previously been introduced by an opposing party.

6. After both parties have rested their entire cases, the judge hears oral motions. In a jury trial either party may make a motion for a directed verdict. See §3.2-11 of this Benchbook regarding motions during trial.

B. Witnesses; Testimony

1. After each witness has been examined, the opposing party may cross-examine the witness. Evidence Rule 11-611(b) & (c). Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
2. Although the extent of the cross-examination is within the discretion of the trial judge, the judge may not restrict cross-examination if it assists the defendant or if it concerns subjects on which the defense is entitled to cross-examine. State v. Hovey, 106 N.M. 300 (1987); State v. Urioste, 94 N.M. 767 (Ct. App. 1980).
3. After cross-examination, the party who called the witness may re-examine the witness regarding evidence presented during cross-examination.
4. At the discretion of the judge, the party who cross-examined the witness may "recross-examine" the witness, but only if new subject matter was brought out during the redirect examination. State v. Vigil, 91 N.M. 156 (Ct. App. 1977).
5. A party or attorney may object to questions, but if he or she fails to do so, the judge may interrupt to prevent questions that are valueless or are likely to mislead the jury. See §3.2-7(E) of this Benchbook regarding objections by counsel.
6. The judge may ask appropriate questions of a witness at any point during the presentation of evidence. Evidence Rules 11-107 and 11-614. However, the judge must not comment to the jury on the evidence or the credibility of any witness. Moreover, the judge must exercise great care in questioning witnesses in order to maintain the appearance of impartiality, to avoid the appearance of commenting on the evidence or guilt or innocence of the defendant, and to preserve the prosecution’s burden of proving its case. State v. Stallings, 104 N.M. 660 (Ct. App. 1986).
7. Each witness is examined individually in accordance with the Rules of Evidence. A judge may interrogate a witness. State v. Stallings, 104 N.M. 660 (Ct. App. 1986); see generally Evidence Rules 11-601 to 11-615 (regarding witnesses).

   a. In general, a witness may not testify to a matter unless the witness has personal knowledge of the matter. Evidence Rule 11-602; see also Evidence Rules 11-701 and 11-703 to 11-707 (regarding expert witnesses).

   b. Hearsay evidence is not admissible unless allowed by the Rules of Evidence. See Evidence Rules 11-801 to 11-806 (regarding hearsay).

   c. Statements made by the defendant during plea negotiations are not admissible in evidence for any purpose including impeachment of the defendant. State v. Trujillo, 93 N.M. 724 (1980); Evidence Rule 11-410.

8. A witness may refuse to testify to a matter if he or she has a privilege to refuse under the Rules of Evidence. See Evidence Rules 11-501 to 11-514 (regarding privileges).
9. In addition to the privileges allowed under the Rules of Evidence, a witness has the privilege under the Fifth Amendment to refuse to answer any question in any civil or criminal proceeding where the answer might tend to incriminate him or her in future criminal proceedings. U.S. Const. amend. V.
10. Relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, confusion of the issues, confusion of the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Evidence Rule 11-403. Compare Lenz v. Chalamidas, 109 N.M. 113 (1989)(ruling that the balancing provision in Rule 11-609(A)(1) does not apply in civil cases).

C. Defendant as Witness

1. A defendant has the same privilege as any witness to invoke the Fifth Amendment and to refuse to answer any question in any criminal proceeding. U.S. Const. amend. V.
2. A defendant waives his or her Fifth Amendment privilege against self-incrimination:

   a. When testifying on his or her own behalf, except as limited by the Rules of Evidence. State v. Allen, 91 N.M. 759 (Ct. App. 1978).

   b. During cross-examination on matters reasonably related to the subject matter of his or her direct examination, including impeachment by proof of prior convictions. Impeachment means to call into question the credibility of the witness.

3. A defendant may be questioned about prior convictions under certain circumstances. See the following two paragraphs concerning when a defendant may not be questioned about prior convictions.

   a. Subsection (a)(1) of Rule 11-609 allows cross-examination of a criminal defendant regarding any prior felony conviction if the judge finds its probative value outweighs the prejudice to the defendant. State v. Lucero, 98 N.M. 311 (Ct. App. 1982); Lenz v. Chalamidas, 109 N.M. 113 (1989) (limiting application of this rule to criminal cases).

   b. Subsection (a)(2) of Rule 11-609 allows cross-examination regarding conviction of any crime, felony or misdemeanor, if the offense involves dishonesty or a false statement. Evidence Rule 11-609.

   c. Evidence of a conviction is not admissible if more than ten years have elapsed since the date of the conviction or release of the defendant from confinement imposed as a consequence of the conviction. Evidence Rule 11-609(B).

4. A defendant may be questioned about a prior conviction for impeachment purposes if the probative value of the prior conviction outweighs its prejudicial effect. State v. Hall, 107 N.M. 17 (Ct. App. 1987)(explaining the relationship between Rules 11-403 and 11-609(A)(1)).
5. A defendant may not be questioned about a prior conviction if:

   a. The answer could expose defendant to an enhanced sentence or deprive him or her of liberty.; State v. Archunde, 91 N.M. 682 (Ct. App. 1978). Compare Evidence R. 11-609(A).

   b. The conviction is for a misdemeanor not involving the veracity of the defendant and is therefore irrelevant to the defendant's credibility. Albertson v. State, 89 N.M. 499 (1976).

   c. The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Evidence Rule 11-609(C)(2). or

   d. The conviction has been the subject of a pardon, annulment, certificate of rehabilitation or other equivalent procedure based on a finding of rehabilitation and the person has not been convicted of a subsequent felony. Evidence Rule 11-609(C)(1).

6. The defendant, when testifying as a witness, may not be questioned about post-arrest silence relating to any issue in the case when the defendant's silence lacks probative value. State v. Romero, 94 N.M. 300 (Ct. App. 1980). For example, “the prosecution may not use the defendant’s silence at the time of his arrest to impeach an exculpatory story which the defendant presents at trial.” Romero, 94 N.M. at 302.

D. Introduction of Documentary Evidence and Other Things

1. A party examining a witness may introduce written documents or other things as evidence during examination of the witness. See Evidence Rules 11-901 to 11-903 and 11-1001 to 11-1008. Introduction of exhibits proceeds as follows:

   a. A party asks to have the exhibits numbered in sequence and marked as exhibits.

   b. The witness being examined then identifies the exhibit that has been marked. Evidence Rule 11-901.

   c. The admissibility of an exhibit is established through examination of witnesses and may require the testimony of more than one witness before the exhibit becomes admissible.

   d. A party may offer an exhibit to be admitted as evidence at any time before resting; the judge then rules on whether the exhibit is admissible as evidence.

2. When the first exhibit is introduced as evidence, the judge instructs the jury that:

   a. the exhibit has been admitted into evidence;

   b. the jury should consider the exhibit in the determination of the facts of the case; and

   c. the jury may give the exhibit such weight and value as it deserves in helping the jury to decide the facts. (This instruction may be repeated when additional exhibits are admitted.)

3. The judge may allow the exhibit to be passed among the jurors. When the jurors have completed their examination, the exhibit is returned to the judge or court clerk.
4. Once the exhibit has been admitted into evidence, it may be used in the examination of other witnesses.
5. Documentary evidence that is hearsay is not admissible unless allowed by the Rules of Evidence. See Evidence Rules 11-801 to 11-806 (regarding hearsay).

E. Objections (Evidence Rules 11-103 and 11-104).

1. The opposing party may object:

   a. to a question asked a witness;

   b. to an answer given by a witness; or

   c. to the introduction of documents or other things as evidence.

2. The objection must be raised at the time of the question, answer or introduction of evidence.
3. When an objection is raised to a question or exhibit, the party must state the reason for the objection. The judge may call the parties to the bench to discuss the objection out of the hearing of the jury. This is called a bench conference. The judge either sustains or overrules the objection.
4. Once an answer has been given, the objection takes the form of a motion to strike the answer.

   a. If the judge grants the motion to strike, the jury is told to disregard any answer given.

   b. If the judge denies the motion, the answer stands as if the motion had not been made.

F. Confessions

1. Generally, a confession of a defendant may be admissible in evidence only if it was freely and voluntarily made without duress, fear, or compulsion in its inducement and with full knowledge of the nature and consequences of the confession. State v. Aguirre, 91 N.M. 672 (Ct. App. 1978).
2. A confession of the accused shown not to have been freely and voluntarily made is generally not admissible in evidence against the accused except to the extent that it may be used to impeach the testimony of the accused. Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); Miranda v. Arizona, 384 U.S. 436 (1966). The burden is on the government to prove by a preponderance of the evidence that the confession was voluntary. See State v. Devigne, 96 N.M. 561 (Ct. App. 1981) (“The question whether a confession is the product of a free will . . . must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse . . . . The voluntariness of the statement is a threshold requirement . . . . And the burden of showing admissibility rests, of course, on the prosecution. . . .” (quoting Brown v. Illinois, 422 U.S. 590 (1975))).
3. The self-incrimination clause of the Fifth Amendment of the United States Constitution does not require the suppression of a confession made after proper Miranda warning, and a valid waiver of Miranda rights, solely because the police had obtained an earlier voluntary but unwarned admission from the criminal suspect. Oregon v. Elstad, 470 U.S. 298 (1985).
4. Miranda warnings apply only when a person is in custody or deprived of his freedom of action in any significant way. Consequently, one of the main issues in cases involving a criminal defendant who has given a statement or made a confession to the police is whether the defendant was "in custody" and being interrogated by the police when the statement or confession was made. State v. Swise, 100 N.M. 256 (1983); State v. Segotta, 100 N.M. 18 (Ct. App. 1983), rev’d on other grounds 100 N.M. 498 (Ct. App. 1983); State v. Montano, 95 N.M. 233 (Ct. App. 1980), overruled on other grounds by Sells v. State, 98 N.M. 786, 788 (1982); State v. Harge, 94 N.M. 11 (Ct. App. 1979), overruled on other grounds by Buzbee v. Donnelly, 96 N.M. 692, 701 (1981). General on-the-scene questioning of citizens in the police fact-finding process is not considered "custodial" even though there may be coercive aspects to the questioning.
5. A defendant who is questioned during police investigation or stopped in a routine traffic stop is not entitled to Miranda warnings. The United States Supreme Court has said that “persons temporarily detained pursuant to [noncoercive, ordinary traffic stops] are not 'in custody' for the purposes of Miranda.” Berkemer v. McCarty, 468 U.S. 420 (1984). The roadside questioning of a motorist pursuant to a routine traffic stop does not constitute custodial interrogation. Miranda warnings are required only if defendant can demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Berkemer v. McCarty, 468 U.S. at 441.
6. Miranda warnings are not required even if the defendant motorist believed he was temporarily detained or the arresting officer believed he would have restrained the defendant. “[T]he only relevant inquiry is how a reasonable [person] in the suspect's position would have understood [the] situation.” In other words, would a reasonable person believe he or she was in custody or under restraint comparable to those associated with a formal arrest? Berkemer v. McCarty, 468 U.S. at 442; see also Armijo v. State ex rel.Transp. Dep't, 105 N.M. 771 (Ct. App. 1987) (“The roadside questioning of a motorist pursuant to a routine traffic stop does not constitute custodial interrogation. Miranda warnings are required after a traffic stop only if defendant can 'demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest.' The fact that the motorist may temporarily feel that he is not free to leave does not render him 'in custody' for purposes of Miranda.”)(internal citations omitted); State v. Chamberlain, 112 N.M. 723, 728 (1991).
7. A field sobriety test does not necessarily entitle a defendant to Miranda warnings. Armijo v. State ex rel Trans. Dept., 105 N.M. 771 (Ct. App. 1987).
8. Asking a criminal defendant to "make a statement" is police behavior designed to elicit an incriminating response. Therefore, when the police asked the defendant to "make a statement" and he or she was in police custody, there was "custodial interrogation" and the Miranda decision applies. State v. Dominguez, 97 N.M. 592 (Ct. App. 1982).
9. The New Mexico Court of Appeals has also held that statements made by a criminal defendant were voluntary when they were made after a police officer had advised defendant of his Miranda rights, but after the police officer played a tape recording to defendant of defendant and a co-defendant's conversation made in officer's patrol car. State v. Lucero, 96 N.M. 126 (Ct. App. 1981).
10. Once an accused in custody has expressed the desire to deal with police through counsel, the accused is not to be subjected to further interrogation until counsel has been made available unless the accused voluntarily initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477 (1981); State v. Boeglin, 100 N.M. 127 (Ct. App. 1983). If counsel is not provided for the accused and the accused gives a statement or confession to the police, such statement or confession is inadmissible against the defendant at trial.
11. When an accused requests an attorney after Miranda warnings are given, in order to establish the admissibility of a subsequently obtained statement, the State has the burden of establishing:

    a. the voluntariness of the statement; and

    b. a knowing and intelligent waiver of the right to counsel. State v. Boeglin, 100 N.M. at 133.

12. There are numerous New Mexico and federal court decisions that include an interpretation of the Miranda decision and the rules regarding when Miranda warnings must be given to an accused. These cases should be studied as situations arise concerning the admissibility of a confession or other statement by a defendant.