This chapter covers:

• Conditions of release, including the constitutional right to release, factors the court must consider, conditions the court can impose, procedures, continuation and review of conditions, failure to comply with conditions, and failure to appear.
• Bonds, including unsecured and secured appearance bonds, execution and discharge of bail bonds, exoneration of bonds, and forfeiture of bonds.

3.1 Conditions of Release

3.1.1 General
The right to bail is granted by the New Mexico Constitution to any arrested person except for a person charged with a capital offense (for example, murder) where the proof of guilt is evident or the presumption of guilt is great.

Although an arrested person has a right to release, certain restrictions or requirements for release may be imposed.

Pending trial, a defendant must be released on personal recognizance or the execution of an unsecured appearance bond in an amount set by the court, subject to other release conditions, unless the court determines that this release will not reasonably assure the defendant’s appearance. Rule 8-401(A). If the court determines that these measures will not secure the defendant’s appearance or will endanger the safety of any other person or the community, then in addition to any release conditions the court must order release using one of the following secured bonds:

• A bail bond in a specified amount executed by the defendant and secured by a cash deposit of 10% of the amount set for bail or a greater or lesser amount as reasonably necessary to assure the defendant’s appearance. The cash deposit may be made by a paid licensed surety if the surety also executes a bail bond for the full amount of the bail.
• A bail bond executed by the defendant or by unpaid sureties in the full amount of the bond with the pledging of real property (i.e. land and permanent buildings).
• A bail bond executed by licensed sureties or an appearance bond executed by the defendant with a 100% cash deposit with the court of the amount set for bail.

Release and conditions of release may be broadly categorized as follows:

• Release on own recognizance, i.e. release based on the defendant's promise to appear. No bail is required.
• Release subject to bond conditions.
• Release subject to conditions in addition to recognizance or bond requirements.

Release on own recognizance without any other conditions is the least restrictive form of release.

There are two reasons for imposing bond and conditions for release:

• The primary purpose is to assure the defendant’s appearance at court proceedings.
• The second purpose is to restrict the activities of the defendant if there is a danger that he or she will unlawfully interfere with the orderly administration of justice or endanger the safety of any other persons or the community.

Only the bond or other conditions of release necessary to assure the appearance of the defendant or to prevent interference with the administration of justice should be imposed.

The court has great discretion in setting the condition or combination of conditions that will assure the appearance of the defendant. Each defendant’s conditions of release must be considered individually.

3.1.2 Factors in Setting Conditions
(For examples of pretrial release hearings, see scripts and checklists section of this Benchbook.) Under Rule 8-401(B), all of the following factors must be considered prior to determining the type of bail and the conditions of release that will reasonably assure the appearance of the defendant and the safety of any other person and the community:

• The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug.
• The weight of the evidence against the defendant.
• The defendant’s history and characteristics, including:
  • Character and physical and mental condition.
  • Family ties.
  • Employment status, employment history and financial resources.
  • Past and present residences.
  • Length of residence in the community.
  • Facts tending to indicate the defendant has strong ties to the community.
  • Facts indicating the possibility that the defendant will commit new crimes if released.
  • Past conduct, history relating to drug or alcohol abuse, criminal history and record concerning appearance at court proceedings.
  • Whether at the time of the offense or of arrest the defendant was on probation, parole, or other release pending trial, sentencing, appeal or completion of an offense under federal, state or local law.
• The nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release.
• Any other facts tending to indicate the defendant is likely to appear.

3.1.3 Specific Conditions
Under Rule 8-401(C), the court may set any of the following conditions of release to assure the orderly administration of justice:

• Prohibition against committing a federal, state or local crime during the period of release.
• The least restrictive of, or combination of, the following conditions the court finds will reasonably assure the appearance of the defendant as required, the safety of any other person and the community, and the orderly administration of justice. The judge may require that the defendant:
  • 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.
  • Maintain employment, or, if unemployed, actively seek employment.
  • Maintain or commence an educational program.
  • Comply with restrictions on personal associations, place of abode or travel specified by the court.
  • Avoid all contact with the alleged victim of the crime and with any potential witness who may testify about the offense.
  • Report on a regular basis to a designated pretrial services agency or other agency agreeing to supervise the defendant.
  • Comply with a specified curfew.
  • Refrain from possessing a firearm, destructive device or other dangerous weapon.
  • Refrain from excessive or any use of alcohol and any use of a narcotic drug or other controlled substance without a prescription by a licensed medical practitioner.
  • Undergo available medical, psychological or psychiatric treatment, including treatment for drug or alcohol dependency and remain in a specified institution if required for that purpose.
  • Submit to a urine analysis or alcohol test upon request of a person designated by the court.
  • Return to custody for specified hours following release for employment, schooling, or other limited purposes
  • Be restricted by electronic monitoring.
  • Satisfy any other condition that is reasonably necessary to assure the defendant’s appearance as required and to assure the safety of any other person and the community.

3.1.4 Release Proceedings

Designee
A bail designee is a person who is appointed by the judge to act on behalf of the judge in bail matters when the judge is unavailable. Rule 8-401(H). Note that the jail does not become a bail designee even though it may release defendants on bond according to a bond list provided by the court. The bond list establishes the amount of bail for a given offense. The jail is not a designee because it has no discretion to vary the amount of the bond or to impose conditions of release (other than those expressly included in the bond list.)

A designee has limited powers in bail matters. A designee may not hold a detention hearing, review conditions of release previously imposed, or amend conditions of release previously imposed.

A person may not serve as a bail designee if that person or his spouse is related within the second degree of blood or marriage to a bondsperson who is licensed to sell property or corporate bonds in New Mexico, or if the person is employed by a jail or detention facility.

Notice of appointment of a designee should be given to the appropriate law enforcement and detention center authorities so that the defendant may be taken before the designee without delay after arrest.

The designee tells defendants who are released on their own recognizance, or who meet the conditions of release imposed by the designee when to appear before the judge for arraignment.

The designee issues a release order and delivers the original of the order to the judge along with the original of any appearance or bail bond that may have been executed. The designee also delivers to the judge the original of the record of responses to questions at hearing to determine indigency. The designee gives a copy of the release order to the defendant.

Arraignment
When the defendant appears for arraignment, the judge may revise or modify the terms and conditions of release set by the designee.

If the defendant was not taken before a designee or is still in custody, the judge issues a release order containing any conditions of release, including bond requirements.

Non-bond conditions (such as restrictions on travel, association, etc.) may be imposed as part of release on own recognizance as well as release on bond.

Additional Conditions of Release
A designee or the judge may impose additional conditions to assure the orderly administration of justice. The conditions are imposed at the same time as the imposition of conditions to assure appearance. One release order covering both types of conditions is used. Rule 8-401(F).

Judicial Hearing on Conditions Imposed by Designee
The judge may impose the additional conditions at a new hearing, after the original release order has been issued by the designee.

• The judge may issue an amended release order, containing only the additional conditions. The judge should note on the release order that the new conditions are in addition to the previous conditions which remain in effect, and that they are for the purpose of preventing interference with the orderly administration of justice.
• If the additional conditions are inconsistent with the previous conditions, the judge issues a new release order.
• If the defendant is unable to meet the additional conditions, he or she is entitled to a hearing to review the conditions of release.

Evidence
In all hearings relating to bail, the court may receive and act on credible hearsay, as the Rules of Evidence do not apply to bail matters. Rule 8-401(I).

Change of Conditions of Release
At any time, upon motion of a party or upon the court's own motion, the judge may have the defendant arrested and brought to court to amend the conditions of release or amount of bail set. A defendant who is detained after the new conditions or bail are imposed has the right to a hearing to review the additional or different conditions of release. Rule 8-401(E).

A defendant may petition the district court for release if new or additional conditions of release are imposed and after 24 hours the defendant remains detained due to inability to meet the new conditions or the defendant is released on a condition which requires he return to custody after specified hours. Rule 8-403(B).

A person who is unable to meet the conditions of release and continues to be detained in custody for longer than 24 hours is entitled to have the judge review the conditions of release or the amount of bond. The court which set the conditions of release shall conduct the review. Rule 8-401(E).

If the conditions or amount of bail resulting in custody or partial release are not removed, the judge must enter on the release order the reason for continuing the conditions.

If at any time the judge increases the amount of the bond previously imposed, the existing bond may be supplemented by a new bond or cash deposit to make up the new amount that is required by the court.

3.1.5 Release Forms
At the time of release or setting of conditions, the judge or designee issues the appropriate order and bond to serve as a record of the release and any conditions which are imposed.

• The original is filed in the court, a copy is sent to the detention center and a copy is provided to the defendant or the defendant's attorney or surety.
• If the original order is amended or modified, a new release order is issued.

The judge may use the record of responses to questions at hearing to determine indigency in order to determine release and conditions of release. The judge or designee may orally question the defendant, the defendant's attorney, the arresting officer or other law enforcement officer, and/or the prosecutor.

If the defendant is to be released on recognizance, the judge must do one of the following:

• Write on the release form the time and place for the next appearance of the defendant, and make the defendant promise to appear at such a time and place.
• If the time and place of the next appearance are not known, make the defendant promise to appear when notified.

If the judge does not so notify or order the defendant, the defendant cannot be charged with failure to appear if he or she does not appear.

3.1.6 Continuation and Review of Release
Normally, a person released pending trial continues on release under the same conditions during the trial, pending imposition of sentence and pending the outcome of any appeal. Rule 8-402. However, the judge may determine that other conditions of release are necessary for any of the following reasons:

• To assure the defendant's presence during trial.
• To assure that the conduct of the defendant will not interfere with the orderly administration of justice.
• If the surety has been released or discharged after sentencing.

After imposition of a judgment and sentence, upon defendant's motion, the judge must set conditions of release pending appeal. In setting the conditions, the judge may consider the fact that there was a conviction and the length of sentence imposed.

If the judge imposes other conditions of release, the defendant is entitled to a hearing if the person cannot meet the conditions of release or is granted partial release.

If the judge increases the amount of bond previously imposed and if the original bond is still in effect because the surety has not been discharged, a separate bond is furnished in the amount additionally required. If the judge does not increase the bond amount as previously imposed and if the original bond is still in effect, a new bond is not necessary.

3.1.7 Failure to Comply with Conditions
If a person willfully fails to comply with conditions of release, the judge may issue a bench warrant or may notify the defendant to appear for a review of the conditions of release.

Upon review, the judge may:

• Without a hearing, impose any of the conditions authorized under court rules, including conditions to assure the orderly administration of justice. Rule 8-403(A)(1). The defendant is then entitled to a hearing if he or she cannot meet the conditions of release or is granted partial release.
• After a hearing, revoke bail or recognizance if the defendant has been indicted on a serious crime allegedly committed while the defendant was on release on a prior charge. Rule 8-403(A)(2).

If new conditions are imposed to assure the orderly administration of justice or if bail or recognizance is revoked, the defendant is entitled to a review of the conditions or the revocation.

3.1.8 Failure to Appear
If a person fails to appear as required in the conditions of release, the judge may do any of the following:

• Issue a warrant for the arrest of the defendant.
• Revoke the conditions of release.
• If there is a breach of a condition of the bond, declare forfeiture of bail.

If a person willfully fails to appear as required, the person may be charged with a petty misdemeanor.

A person arrested for failure to appear is entitled to bail on the new charge.

3.2 Bonds

3.2.1 General
The judge or designee determines the type and amount of bond. An original and one or two copies of the bond are required:

• The original is filed with the court.
• A copy is given to the defendant.
• For a bail bond, a copy is given to the surety.

3.2.2 Appearance Bond: Unsecured
An unsecured appearance bond requires the defendant to pay the full amount of the bond if he or she fails to appear as required or fails to comply with any other conditions of release which may be imposed.

3.2.3 Appearance Bond: Partial Cash Deposit
As a condition of release, the defendant may be required to execute an appearance bond and deposit with the court a percentage of the amount of the bond.

The court, in its discretion, establishes the amount of the bond and the percentage of cash deposit required.

The deposit must be made in cash or an approved cash substitute, such as a money order or cashier's check.

When the conditions of the bond have been performed and the defendant is discharged from all obligations, the court returns the deposit to the person to whom the receipt was issued, or to another individual upon written assignment by the person to whom the receipt was issued.

3.2.4 Appearance Bond: Full Cash Deposit
As a condition of release, the defendant may be required to execute an appearance bond and deposit with the court the full amount of the bond.

The deposit must be made in cash or an approved cash substitute.

3.2.5 Bail Bond: Execution
As a condition of release, the defendant may be required to obtain a bail bond.

A bail bond differs from an appearance bond in that a bail bond is executed by surety or sureties on behalf of the defendant. A surety agrees to pay the amount of bond if the defendant fails to comply with the conditions of the bond or any additional conditions of release.

Sureties who are allowed to execute bail bonds are uncompensated sureties or bail bondsmen. Rule 8-401A.

Uncompensated sureties are usually friends or relatives of the arrested person. They sign as surety or a cosigner on an unsecured or secured bond.
The terms "compensated surety," "corporate surety," and "paid surety" are used to refer to a bail bondsman or corporation authorized to execute bail bonds. Rule 8-401B.

If the surety is not licensed as a bail bondsman or able to show other authorization to execute bail bonds, the surety is assumed to be an uncompensated surety.

Normally when a bail bond is required, no money is deposited with the court. However, the bail bondsman charges the defendant a certain percentage of the amount of the bond plus costs.

A paid surety who is licensed under the Bail Bondsman Licensing Law may deposit cash with the court instead of a surety or property bond provided that the paid surety executes an appearance bond. If real property is submitted as bond by a compensated surety, the solicitor or bondsman must be licensed as a property bondsman and must file in each court in which he posts bonds an irrevocable letter of credit in favor of the court and a signed draft made payable to the court along with a copy of his license.

3.2.6 Bail Bond: Discharge of Surety

Uncompensated Surety
An uncompensated surety desiring to be discharged from the obligations of a bail bond before final disposition of the charges against the defendant must do all of the following:

• Arrest and take the defendant to the office of the sheriff in the county where the action is pending.
• Deliver to the sheriff a certified copy of the release order and the bail bond.
• Apply in writing to the court for a written order discharging the surety from the obligations of the bail bond.

Upon satisfactory proof that the surety has complied with the three requirements listed above, the judge must enter a written order discharging the surety from liability under the bond.

Compensated Surety
The judge must order the discharge of a paid surety if one of the following apply:

• There has been a final disposition of all charges against the defendant.
• The defendant is dead.
• Circumstances have arisen which the surety could not have foreseen at the time of becoming a paid surety for the defendant.
• The contractual agreement (the bond and its conditions) between the surety, the defendant, and the municipality has been terminated.

A compensated surety desiring to be discharged from bond obligations applies in writing to the court for a written order discharging the surety from the obligations of the bail bond, setting forth the grounds for discharge.

If the motion is based on unforeseen circumstances or on a claim that the contract of the bond has been terminated, the surety must return the defendant to custody. In such cases, the surety must do both of the following:

• Arrest and return the defendant to custody.
• Deliver to the custodial authorities a certified copy of the release order and the bail bond, at the time of the return of the defendant to custody.

3.2.7 Exoneration
A bail bond may be automatically exonerated (cleared) by the municipal court under one of the following conditions:

• If no charges against the defendant for the underlying offense have been filed after 6 months.
• At any time prior to entry of judgment of default on the bond if the city attorney approves. Rule 8-406(A).

An unpaid surety bond may also be exonerated upon surrender of the defendant.

3.2.8 Forfeiture
If a defendant fails to appear as required, the judge may declare forfeiture of the bail bond or appearance bond. Rule 8-406.

• The court makes a declaration of forfeiture in the form of a written notice.
• The declaration must contain a statement by the judge that the defendant was required to appear, that due notice was given and that the defendant did in fact fail to appear as required.
• A Notice of Forfeiture and Order to Show Cause is served on the surety or on the clerk of the court. If served on the clerk, the clerk must mail copies of the notice to the sureties at their last known address.
• The court is required to hold a hearing on the forfeiture at least 30 days after the notice is served.

Prior to entry of judgment, the judge after a hearing may set aside, in whole or in part, the declaration of forfeiture for one of the following reasons:

• Upon a showing of good cause why the defendant did not appear as required.
• If the defendant is surrendered into custody prior to entry of judgment of default on the bond.

Upon forfeiture, the defendant (in the case of an appearance bond) and/or the surety (in the case of a bail bond) is required to pay the amount of the bond.

Obligation of Principal and Sureties
In case of forfeiture the defendant and the uncompensated surety or cosigner are jointly and severally liable for the full amount of an appearance bond. The defendant surety or cosigner receives credit for any cash deposited, because it is also forfeited.

A bail bond is a bond to assure appearance, but it requires sureties. A bail bond is signed by the defendant, as principal, and by one or more sureties. In case of forfeiture, the defendant and all sureties are jointly and severally liable for the full sum of the bond. The government can collect the amount only once, but the government is not required to get a portion from the defendant, another portion from a surety, and so forth. The full amount can be collected from anyone obligated on the bond, and in that case the surety who pays must seek any reimbursement from the defendant or other sureties.

Default Judgment
If any part of a judgment on default remains unpaid for 10 days, then an execution of judgment may be issued. In cases involving a paid surety, if the judgment is not paid, the court gives written notice to the superintendent of insurance. The superintendent of insurance notifies the bonding company that unless the judgment is paid (or an appeal is made within 30 days of judgment), it will forfeit the right to do business in New Mexico. If the judgment is still not paid, the superintendent revokes the right to do business in New Mexico.