N.M. Sup. Ct. Order No. S-1-AO-2025-00013 (amended) C

In determining 11

the least restrictive conditions of release that will reasonably ens ure the appearance of the 12

defendant as required and the safety of any other person and the community, the court shall 13

consider any available results of a pretrial risk assessment instrument approved by the Supreme 14

Court for use in the jurisdiction and the financial resources of the defendant. In addition, the court 15

may take into account the available information about 16

(1) the nature and circumstances of the offense charged, including whether the 17

offense is a crime of violence or involves alcohol or drugs; 18

(2) the weight of the evidence against the defendant; 19

(3) the history and characteristics of the defendant, including 20

(a) the defendant’s character, physical and mental condition, family 21

ties, employment, past and present residences, lengt h of residence in the community, community 22

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RULE 5-401 July 29, 2025

1 ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record about

2 appearance at court proceedings; and

3 (b) whether, at the time of the current offense or arrest, the defendant

4 was on probation, on parole, or on other release pending trial, sentencing, or appeal for any offense

5 under federal, state, or local law;

6 (4) the nature and seriousness of the danger to any person or the community

7 that would be posed by the defendant’s release;

8 (5) any other facts tending to indicate the defendant may or may not be likely

9 to appear as required; and

10 (6) any other facts tending to indicate the defendant may or may not commit

11 new crimes if released.

12 D. Non-monetary conditions of release. In its order setting conditions of release, the

13 court shall impose a standard condition that the defendant not commit a federal, state, or local

14 crime during the period of release. The court may also impose the least restrictive particularized

15 condition, or combination of particularized conditions, that the court finds will reasonably ensure

16 the appearance of the defendant as required, the safety of any other person and the community,

17 and the orderly administration of justice, which may include the condition that the defendant

18 (1) remain in the custody of a designated person who agrees to assume

19 supervision and to report any violation of a release condition to the court, if the designated person

20 is able reasonably to assure the court that the defendant will appear as required and will not pose

21 a danger to the safety of any other person or the community;

22 (2) maintain employment, or, if unemployed, actively seek employment;

23 (3) maintain or commence an educational program;

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(4) abide by specified restrictions on personal associations, place of abode, or 1

travel; 2

(5) avoid all contact with an alleged victim of the crime or with a potential 3

witness who may testify about the offense; 4

(6) report on a regular basis to a desig nated pretrial services agency or other 5

agency agreeing to supervise the defendant; 6

(7) comply with a specified curfew; 7

(8) refrain from possessing a firearm, destructive device, or other dangerous 8

weapon; 9

(9) refrain from any use of alco hol or any use of an illegal drug or other 10

controlled substance without a prescription by a licensed medical practitioner; 11

(10) refrain from any use of cannabis, cannabis products, or synthetic 12

cannabinoids without a certification from a licensed medical practitioner; 13

(11) submit to a drug test or an alcohol test on request of a person designated by 14

the court; 15

(12) return to custody for specified hours after release for employment, 16

schooling, or other limited purposes; and 17

(13) satisfy any o ther condition that is reasonably necessary to ensure the 18

appearance of the defendant as required and the safety of any other person and the community. 19

E. Secured bond. If the court makes written findings of the particularized reasons 20

why release on personal recognizance or unsecured appearance bond, in addition to any non-21

monetary conditions of release, will not reasonably ensure the appearance of the defendant as 22

required, the court may require a secured bond for the defendant’s release. 23

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(1) Factors to be considered in setting secured bond. 1

(a) In determining whether any secured bond is necessary, the court 2

may consider any facts tending to indicate that the particular defendant may or may not be likely 3

to appear as required. 4

(b) The court shall set secured bond at the lowest amount necessary to 5

reasonably ensure the defendant’s appearance and with regard to the defendant’s financial ability 6

to secure a bond. 7

(c) The court shall not set a secured bond that a defendant cannot afford 8

for the purpose of detaining a defendant who is otherwise eligible for pretrial release. 9

(d) Secured bond shall not be set by reference to a predetermined 10

schedule of monetary amounts fixed according to the nature of the charge. 11

(2) Types of secured bond. If a se cured bond is determined necessary in a 12

particular case, the court shall impose the first of the following types of secured bond that will 13

reasonably ensure the appearance of the defendant. 14

(a) Percentage bond. The court may require a secured appearance bond 15

executed by the defendant in the full amount specified in the order setting conditions of release, 16

secured by a deposit in cash of ten percent (10%) of the amount specified. The deposit may be 17

returned as provided in Paragraph M of this rule. 18

(b) Property bond. The court may require the execution of a property 19

bond by the defendant or by unpaid sureties in the full amount specified in the order setting 20

conditions of release, secured by the pledging of real property in accordance with Rule 5-21

401.1 NMRA. 22

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1 (c) Cash or surety bond. The court may give the defendant the option

2 of either

3 (i) a secured appearance bond executed by the defendant in the

4 full amount specified in the order setting conditions of release, secured by a deposit in cash of one

5 hundred percent (100%) of the amount specified, which may be returned as provided in Paragraph

6 M of this rule, or

7 (ii) a surety bond executed by licensed sureties in accordance

8 with Rule 5-401.2 NMRA for one hundred percent (100%) of the full amount specified in the order

9 setting conditions of release.

10 F. Order setting conditions of release; findings about secured bond.

11 (1) Contents of order setting conditions of release. The written order setting

12 conditions of release shall be provided to the defendant before release if the defendant is in custody

13 or within three (3) days of the conditions of release hearing if the defendant is not in custody, and

14 (a) include a written statement that sets forth all the conditions to which

15 the release is subject, in a manner sufficiently clear and specific to serve as a guide for the

16 defendant’s conduct; and

17 (b) advise the defendant of

18 (i) the penalties for violating a condition of release, including

19 the penalties for committing an offense while on pretrial release;

20 (ii) the consequences for violating a condition of release,

21 including the immediate issuance of a warrant for the defendant’s arrest, revocation of pretrial

22 release, and forfeiture of bond; and

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(iii) the consequences of intimidating a witness, victim, or 1

informant, or otherwise obstructing justice. 2

(2) Written findings about secured bond. The court shall file written findings 3

of the individualized facts justifying a secured bond as soon as possible, but no later than two (2) 4

days after the conclusion of the hearing. 5

G. Pretrial detention. 6

(1) If the prosecutor files a motion for pretrial detention, the court shall follow 7

the procedures set forth in Rule 5-409 NMRA. 8

(2) The court may schedule a detention hearing within the time limits set forth 9

in Rule 5-409(F)(1) NMRA and give notice to the prosecutor and the defendant when the 10

defendant is charged with a felony offense: 11

(a) involving the use of a firearm; 12

(b) involving the use of a deadly weapon resulting in great bodily harm 13

or death; or 14

(c) which authorizes a sentence of life in prison without the possibility 15

of parole. 16

(3) If the prosecutor does not file a motion for pretrial detention by the date 17

scheduled for the detention hearing, the court shall treat the hearing as a pretrial release hearing 18

under this rule and issue an order setting conditions of release. 19

H. Case pending in district court; review of conditions of release. 20

(1) Review. If the district court requires a secured bond for the defendant’s 21

release under Paragraph E of this rule or imposes non- monetary conditions of release under 22

Paragraph D of this rule, and the defendant remains in custody twenty-four (24) hours after the 23

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issuance of the order setting conditions of release as a result of the defendant’s inability to post the 1

secured bond or meet the conditions of release in the present case, the defendant shall be entitled 2

to a hearing to review the conditions of release. 3

(2) Review hearing. The district court shall hold a hearing in an expedited 4

manner, but in no event later than five (5) days after the initial conditions of release hearing. The 5

defendant shall have the right to assistance of retained or appointed counsel at the hearing. Unless 6

the order setting conditions of release is amended and the defendant is then released, the court shall 7

state in the record the reasons for declining to amend the order setting conditions of release. The 8

court shall consider the defendant’s financial ability to secure a bond. No defendant eligibl e for 9

pretrial release under Article II, Section 13 of the New Mexico Constitution shall be detained 10

solely because of financial inability to post a secured bond unless the court determines by clear 11

and convincing evidence and makes findings of the reasons why the amount of secured bond 12

required by the court is reasonably necessary to ensure the appearance of the particular defendant 13

as required. The court shall file written findings of the individualized facts justifying the secured 14

bond as soon as possible, but no later than two (2) days after the conclusion of the hearing. 15

(3) Work or school release. A defendant who is ordered released on a condition 16

that requires that the defendant return to custody after specified hours shall, on motion of the 17

defendant or the court’s own motion, be entitled to a hearing to review the conditions imposed. 18

Unless the requirement is removed and the defendant is released on another condition, the court 19

shall state in the record the reason for the continuation of the re quirement. A hearing to review 20

conditions of release under this subparagraph shall be held by the district court within five (5) days 21

of the filing of the motion. The defendant shall have the right to assistance of retained or appointed 22

counsel at the hearing. 23

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(4) Subsequent motion for review. The defendant may file subsequent motions 1

for review of the order setting conditions of release, but the court may rule on subsequent motions 2

with or without a hearing. 3

I. Amendment of conditions. The court may amend its order setting conditions of 4

release at any time. If the amendment of the order may result in the detention of the defendant or 5

in more restrictive conditions of release, the court shall not amend the order without a hearing. If 6

the court is consi dering revocation of the defendant’s pretrial release or modification of the 7

defendant’s conditions of release for violating a condition of release, the court shall follow the 8

procedures set forth in Rule 5-403 NMRA. 9

J. Record of hearing. A record shall be made of any hearing held by the district court 10

under this rule. 11

K. Cases pending in magistrate, metropolitan, or municipal court; petition for 12

release or review by district court. 13

(1) Case within magistrate, metropolitan, or municipal court trial 14

jurisdiction. A defendant charged with an offense that is within magistrate, metropolitan, or 15

municipal court trial jurisdiction may file a petition in the district court for review of the magistrate, 16

metropolitan, or municipal court’s order setting conditions of release only after the magistrate, 17

metropolitan, or municipal court has reviewed the conditions of release and made a requisite ruling 18

under Rule 6-401(H) NMRA, Rule 7-401(H) NMRA, or Rule 8-401(G) NMRA. The defendant 19

shall attach to the district court petition a copy of the magistrate, metropolitan, or municipal court 20

order after the review of the conditions of release. 21

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(2) Felony case. A defendant charged with a felony offense who has not been 1

bound over to the district court may file a petition in the district court for release under this rule at 2

any time after the defendant’s arrest. 3

(3) Petition; requirements. A petition under this paragraph shall include the 4

specific facts that warrant review by the district court and may include a request for a hearing. The 5

petitioner shall promptly 6

(a) file a copy of the district court petition in the magistrate, 7

metropolitan, or municipal court; 8

(b) serve a copy on the district attorney; and 9

(c) provide a copy to the assigned district court judge. 10

(4) Magistrate, metropolitan, or municipal court’s jurisdiction pending 11

determination of the petition. On the filing of a petition under this paragraph, the magistrate, 12

metropolitan, or municipal court’s jurisdiction to set or amend the conditions of release shall be 13

suspended pending determination of the petition by the district court, unless the case is dismissed 14

or a finding of no probable cause is made. The magistrate, metropolitan, or municipal court shall 15

retain jurisdiction over all other asp ects of the case, and the case shall proceed in the magistrate, 16

metropolitan, or municipal court while the district court petition is pending. The magistrate, 17

metropolitan, or municipal court’s order setting conditions of release shall remain in effect unless 18

and until the district court issues an order amending the conditions of release. 19

(5) District court review. The district court shall rule on the petition in an 20

expedited manner. Within three (3) days after the petition is filed, the district cour t shall take one 21

of the following actions: 22

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(a) set a hearing no later than ten (10) days after the filing of the petition 1

and promptly send a copy of the notice to the magistrate, metropolitan, or municipal court; 2

(b) deny the petition summarily; or 3

(c) amend the order setting conditions of release without a hearing. 4

(6) District court order; transmission to magistrate, metropolitan, or 5

municipal court. The district court shall promptly send to the magistrate, metropolitan, or 6

municipal court a copy o f the district court order disposing of the petition, and jurisdiction over 7

the conditions of release shall revert to the magistrate, metropolitan, or municipal court. 8

L. Expedited trial scheduling for defendant in custody. The district court shall 9

provide expedited priority scheduling in a case in which the defendant is detained as a result of 10

inability to post a secured bond or meet the conditions of release. The court shall hold a status 11

review hearing in any case in which the defendant has been held for more than six (6) months and 12

every six (6) months thereafter. The purpose of the status review hearing is to conduct a meaningful 13

review of the progress of the case. If the court determines that insufficient progress has been made, 14

then the court shall issue an appropriate scheduling order. 15

M. Return of cash deposit. If a defendant has been released by executing a secured 16

appearance bond and depositing a cash deposit under Paragraph E of this rule, when the conditions 17

of the appearance bond have been performed and the defendant’s case has been adjudicated by the 18

court, the clerk shall return the sum that has been deposited to the person who deposited the sum, 19

or that person’s personal representatives or assigns. 20

N. Release from custody by designee. The chief judge of the district court may 21

designate by written court order responsible persons to implement the pretrial release procedures 22

set forth in Rule 5-408 NMRA. A designee shall release a defendant from custody before the 23

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defendant’s first appearance befo re a judge if the defendant is eligible for pretrial release under 1

Rule 5-408 NMRA, but may contact a judge for special consideration based on exceptional 2

circumstances. No person shall be qualified to serve as a designee if the person or the person’s 3

spouse is related within the second degree of blood or marriage to a paid surety who is licensed to 4

sell property or corporate bonds within this state. 5

O. Bind over to district court. For any case that is not within magistrate or 6

metropolitan court trial juris diction, on notice to that court, any bond shall be transferred to the 7

district court on the filing of an information or indictment in the district court. 8

P. Evidence. Information offered in connection with or stated in any proceeding held 9

or order entered under this rule need not conform to the New Mexico Rules of Evidence. 10

Q. Forms. Instruments required by this rule, including any order setting conditions of 11

release, appearance bond, property bond, or surety bond, shall be substantially in the form 12

approved by the Supreme Court. 13

R. Judicial discretion; disqualification and excusal. Action by any court on any 14

matter relating to pretrial release shall not preclude the subsequent statutory disqualification of a 15

judge. A judge may not be excused from setting initial conditions of release or reviewing a lower 16

court’s order setting or revoking conditions of release unless the judge is required to recuse under 17

the provisions of the New Mexico Constitution or the Code of Judicial Conduct. 18

[As amended, effective January 1, 1987; October 1, 1987; September 1, 1990; December 1, 1990; 19

September 1, 2005; as amended by Supreme Court Order No. 07-8300-029, effective December 20

10, 2007; by Supreme Court Order No. 10- 8300-033, effective December 10, 2010; as amended 21

by Supreme Court Order No. 14- 8300-017, effective for all cases pending or filed on or after 22

December 31, 2014; as amended by Supreme Court Order No. 17-8300-005, effective for all cases 23

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pending or filed on or after July 1, 2017; as amended by Supreme Court Order N o. 20-8300-013, 1

effective for all cases pending or filed on or after November 23, 2020; as amended by Supreme 2

Court Order No. 22- 8300-015, effective for all cases pending or filed on or after December 31, 3

2022; as amended by Supreme Court Order No. S -1-RCR-2023-00021, effective for all cases 4

pending or filed on or after December 31, 2023; as amended by Supreme Court Order No. S -1-5

RCR-2024-00068, effective for all cases pending or filed on or after May 8, 2024; as provisionally 6

amended by Supreme Court Order No. S-1-AO-2025-00013, effective for all cases pending or 7

filed on or after July 29, 2025.] 8

Committee commentary. — This rule provides “the mechanism through which a person 9

may effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico 10

Constitution.” State v. Brown, 2014-NMSC-038, ¶ 37, 338 P.3d 1276. In 2016, Article II, Section 11

13 was amended (1) to permit a court of record to order the detention of a felony defendant pending 12

trial if the prosecutor proves by clear and convincing evidence that the defendant poses a danger 13

to the safety of any other person or the community and that no release condition or combination 14

of conditions will reasonably ensure the safety of any other person or the community, and (2) to 15

require the pretrial release of a defendant who is in custody solely because of financial inability to 16

post a secured bond. This rule was derived from the federal statute governing the release or 17

detention of a defendant pending trial. See 18 U.S.C. § 3142. 18

This rule was amended in 2017 to implement the 2016 amendment to Article II, Section 13 19

and the Supreme Court’s holding in Brown, 2014-NMSC-038. Corresponding rules are located in 20

the Rules of Criminal Procedure for the Magistrate Courts, see Rule 6-401 NMRA, the Rules of 21

Criminal Procedure for the Metropolitan Courts, see Rule 7-401 NMRA, and the Rules of 22

Procedure for the Municipal Courts, see Rule 8-401 NMRA. 23

DISTRICT COURT CRIMINAL Supreme Court Approved

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1 Time periods specified in this rule are computed in accordance with Rule 5-104 NMRA.

2 Just as assistance of counsel is required at a detention hearing under Rule 5-409 NMRA

3 that may result in a denial of pretrial release based on dangerousness, Subparagraphs (A)(2),

4 (H)(2), and (H)(3) of this rule provide that assistance of counsel is required in a proceeding that

5 may result in denial of pretrial release based on reasons that do not involve dangerousness, such

6 as a simple inability to meet a financial condition.

7 As set forth in Paragraph B, a defendant is entitled to release on personal recognizance or

8 unsecured bond unless the court determines that any release, in addition to any non-monetary

9 conditions of release under Paragraph D, will not reasonably ensure the appearance of the

10 defendant and the safety of any other person or the community.

11 Paragraph C lists the factors the court should consider when determining conditions of

12 release. In all cases, the court is required to consider any available results of a pretrial risk

13 assessment instrument approved by the Supreme Court for use in the jurisdiction and the financial

14 resources of the defendant.

15 Paragraph D lists various non-monetary conditions of release. The court must impose the

16 least restrictive condition, or combination of conditions, that will reasonably ensure the appearance

17 of the defendant as required and the safety of any other person and the community. See

18 Brown, 2014-NMSC-038, ¶¶ 1, 37, 39. If the defendant has previously been released on standard

19 conditions before a court appearance, the judge should review the conditions at the defendant’s

20 first appearance to determine whether any particularized conditions should be imposed under the

21 circumstances of the case. Paragraph D also permits the court to impose non-monetary conditions

22 of release to ensure the orderly administration of justice. This provision was derived from the

23 American Bar Association, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-

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1 5.2 (3d ed. 2007). Some conditions of release may have a cost associated with the condition. The

2 court should make a determination on whether the defendant can afford to pay all or a part of the

3 cost, or whether the court has the authority to waive the cost, because detaining a defendant

4 because of inability to pay the cost associated with a condition of release is comparable to detaining

5 a defendant because of financial inability to post a secured bond.

6 As set forth in Paragraph E, the only purpose for which the court may impose a secured

7 bond is to ensure that the defendant will appear for trial and other pretrial proceedings for which

8 the defendant must be present. See State v. Ericksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746

9 P.2d 1099 (“[T]he purpose of bail is to secure the defendant’s attendance to submit to the

10 punishment to be imposed by the court.”); see also NMSA 1978, § 31-3-2(B)(2) (1993)

11 (authorizing the forfeiture of bond on the defendant’s failure to appear).

12 The 2017 amendments to this rule clarify that the amount of secured bond must not be

13 based on a bond schedule, i.e., a predetermined schedule of monetary amounts fixed according to

14 the nature of the charge. Instead, the court must consider the individual defendant’s financial

15 resources and must set secured bond at the lowest amount that will reasonably ensure the

16 defendant’s appearance in court after the defendant is released.

17 Secured bond cannot be used for the purpose of detaining a defendant who may pose a

18 danger to the safety of any other person or the community. See Brown, 2014-NMSC-038, ¶ 53

19 (“Neither the New Mexico Constitution nor our rules of criminal procedure permit a judge to set

20 high bail for the purpose of preventing a defendant’s pretrial release.”); see also Stack v. Boyle,

21 342 U.S. 1, 5 (1951) (stating that secured bond set higher than the amount reasonably calculated

22 to ensure the defendant’s appearance in court “is ‘excessive’ under the Eighth Amendment”). A

23 felony defendant who poses a danger that cannot be mitigated through the imposition of non-

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monetary conditions of release under Paragraph D of this rule should be detained under Article II, 1

Section 13 of the New Mexico Constitution and Rule 5-409 NMRA. 2

The court should consider the authorized types of secured bonds in the order of priority set 3

forth in Paragraph E. 4

The court must first consider requiring an appearance bond secured by a cash deposit of 5

ten percent (10%). No other percentage is permitted under the rule. If a cash deposit of ten percent 6

(10%) is inadequate, the court then must consider a property bond involving property that belongs 7

to the defendant or other unpaid surety. If neither of these options is sufficient to reasonably ensure 8

the defendant’s appearance, the court may require a cash or surety bond for the defendant’s release. 9

If the court requires a cash or surety bond, the defendant has the option either to execute an 10

appearance bond and deposit one hundred percent (100%) of the amount of the bond with the court 11

or to purchase a bond from a paid surety. Under Subparagraph (E)(2)(c), the defendant alone has 12

the choice to post the bond by a one hundred percent (100%) cash deposit or a surety. The court 13

does not have the option to set a cash-only bond or a surety-only bond; it must give the defendant 14

the choice of either. A paid surety may execute a surety bond or a real or personal property bond 15

only if the conditions of Rule 5-401.2 NMRA are met. 16

Paragraph F governs the contents of an order setting conditions of release. See Form 9-17

303 NMRA (order setting conditions of release). Paragraph F also requires the court to make 18

written findings justifying the imposition of a secured bond. Judges are encouraged to enter their 19

written findings on the order setting conditions of release at the conclusion of the hearing. If more 20

detailed findings are necessary, the judge should make any supplemental findings in a separate 21

document within two (2) days of the conclusion of the hearing. 22

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Paragraph G addresses pretrial detention of a dangerous defendant under Article II, Section 1

13 of the New Mexico Constitution. If the defendant poses a danger to the safety of any other 2

person or the community that ca nnot be addressed through the imposition of non- monetary 3

conditions of release, the prosecutor may file a motion for pretrial detention. If the prosecutor files 4

a motion for pretrial detention, the district court must follow the procedures set forth in Rul e 5-5

409 NMRA. Paragraph G was amended in 2020 to permit the court to automatically schedule a 6

pretrial detention hearing in certain categories of cases. However, before the hearing, the 7

prosecutor retains the burden of filing an expedited motion for pretri al detention under Rule 5-8

409 NMRA. If the prosecutor does not file that motion before the hearing, then the court is to set 9

conditions of release rather than consider detention. 10

Paragraphs H and K provide avenues for a defendant to seek district court review of the 11

conditions of release. Paragraph H applies to a defendant whose case is pending before the district 12

court. Paragraph K sets forth the procedure for a defendant whose case is pending in the magistrate, 13

metropolitan, or municipal court. Article II, Section 13 of the New Mexico Constitution requires 14

the court to rule on a motion or a petition for pretrial release “in an expedited manner” and to 15

release a defendant who is being held solely because of financial inability to post a secured bond. 16

A defendant who wishes to present financial information to a court to support a motion or petition 17

for pretrial release may present Form 9-301A NMRA (pretrial release financial affidavit) to the 18

court. The defendant shall be entitled to appear and participate personally with counsel before the 19

judge conducting any hearing to review the conditions of release, rather than by any means of 20

remote electronic conferencing. 21

Paragraph L requires the district court to prioritize the scheduling of trial and other 22

proceedings for cases in which the defendant is held in custody because of inability to post bond 23

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or meet the conditions of release. See generally United States v. Salerno, 481 U.S. 739, 747 (1987) 1

(concluding that the detention provisions in the Bail Reform Act, 18 U.S.C. § 3142, did not violate 2

due process, in part because of “the stringent time limitations of the Speedy Trial Act, 18 U.S.C. 3

§ 3161”); Am. Bar Ass’n, ABA Standards for Criminal Justice: Pretrial Release, Standard 10-5.11 4

(3d ed. 2007) (“Every jurisdiction should establish, by statute or court rule, accelerated time 5

limitations within which detained defendants should be tried consistent with the sound 6

administration of justice.”). This rule does not preclude earlier or more regular status review 7

hearings. The purpose of the hearing is to determine how best to expedite a trial in the case. A 8

meaningful review of the progress of the case includes assessment of the parties’ compliance with 9

applicable deadlines, satisfaction of discovery obligations, and w itness availability, among other 10

matters. If the court determines that the parties have made insufficient progress on these measures, 11

then it shall issue an appropriate scheduling order. 12

Under NMSA 1978, Section 31-3-1 (1972), the court may appoint a designee to carry out 13

the provisions of this rule. As set forth in Paragraph N, a designee must be designated by the chief 14

district court judge in a written court order. A person may not be appointed as a designee if the 15

person is related within the second degr ee of blood or marriage to a paid surety licensed in this 16

state to execute bail bonds. A jailer may be appointed as a designee. Paragraph N and Rule 5-17

408 NMRA govern the limited circumstances under which a designee shall release an arrested 18

defendant from custody before that defendant’s first appearance before a judge. 19

Paragraph O requires the magistrate or metropolitan court to transfer any bond to the 20

district court on notice from the district attorney that an information or indictment has been 21

filed. See Rules 6-202(E)-(F), 7-202(E)-(F) NMRA (requiring the district attorney to notify the 22

magistrate or metropolitan court of the filing of an information or indictment in the district court). 23

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Paragraph P of this rule dovetails with Rule 11- 1101(D)(3)(e) NMRA. Both provide that 1

the Rules of Evidence do not apply to proceedings in district court with respect to matters of 2

pretrial release. As with courts in other types of proceedings in which the Rules of Evidence do 3

not apply, a court presiding over a pretrial release hearing is responsible “for assessing the 4

reliability and accuracy” of the information presented. See United States v. Martir, 782 F.2d 1141, 5

1145 (2d Cir. 1986) (explaining that in a pretrial detention hearing the judge “retains the 6

responsibility for assessing the reliability and accuracy of the government’s information, whether 7

presented by proffer or by direct proof”); see also United States v. Marshall, 519 F. Supp. 751, 8

754 (E.D. Wis. 1981) (“So long as the information which the sentencing judge considers has 9

sufficient indicia of reliability to support its probable accuracy, the information may properly be 10

taken into account in passing sentence.”), aff’d, 719 F.2d 887 (7th Cir.1983); State v. 11

Guthrie, 2011-NMSC-014, ¶¶ 36-39, 43, 150 N.M. 84, 257 P.3d 904 (explaining that in a 12

probation revocation hearing, the court should focus on the reliability of the evidence). 13

Consistent with Rule 5-106 NMRA, a party cannot exercise the statutory right to excuse a 14

judge who is setting initial conditions of release. See NMSA 1978, § 38-3-9 (1985). Paragraph R 15

of this rule does not prevent a judge from filing a recusal either on the court’s own motion or 16

motion of a party. See N.M. Const. art. VI, § 18; Rule 21-211 NMRA. 17

[As amended by Supreme Court Order N o. 07- 8300-029, effective December 10, 2007; as 18

amended by Supreme Court Order No. 17-8300-005, effective for all cases pending or filed on or 19

after July 1, 2017; as amended by Supreme Court Order No. 20- 8300-021, effective for all cases 20

pending or filed on or after November 23, 2020; as amended by Supreme Court Order No. 22-21

8300-015, effective for all cases pending or filed on or after December 31, 2022; as amended by 22

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-401 July 29, 2025

1 Supreme Court Order No. S-1-RCR-2024-00068, effective for all cases pending or filed on or after

2 May 8, 2024.]

RCR No. S-1-RCR-2025-00150 20

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 1

5-403. Revocation or modification of release orders. 1

A. Scope. In accordance with this rule, the court may consider revocation of the 2

defendant’s pretrial release or modification of the defendant’s conditions of release 3

(1) if the defendant is alleged to have violated a condition of release; or 4

(2) to prevent interference with witnesses or the proper administration of 5

justice. 6

B. Revocation or modification of conditions of release. 7

(1) The court shall consider revocation of the defendant’s pretrial release or 8

modification of the defendant’s conditions of release on motion of the prosecutor, on notice of a 9

non-technical violation of a condition of release by a court pretr ial services agency, or on the 10

court’s own motion. 11

(2) The defendant may file a response to the motion, but the filing of a response 12

shall not delay any hearing under Paragraph D [or E] of this rule. 13

C. Issuance of summons or bench warrant; temporary detention of certain 14

defendants. 15

(1) On motion or notice of a non-technical violation of a condition of release by 16

a court pretrial services agency, the court shall enter an order with specific findings about why 17

amended or revoked conditions of release are unnecessary, or the court shall issue a summons and 18

notice of hearing, unless the court finds that the interests of justice may be better served by the 19

issuance of a bench warrant. The summons or bench warrant shall include notice of the reasons 20

for the review of the pretrial release decision. 21

(2) A defendant previously released by any court in this state pending any 22

felony charge or pending a charge for an enumerated misdemeanor, who is arrested and charged 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 2

with a new felony or new enumerated misdemeanor defined in Rule 5-403.1 NMRA alleged to 1

have occurred during the period of initial release, shall be held without conditions of release 2

pending [an initial] a hearing under Paragraph D of this rule. The [initial] hearing required by 3

Paragraph D shall be conducted by the court with current jurisdiction over the defendant’s initial 4

conditions of release. 5

(3) A defendant previously released by any court in this state pending any 6

felony charge or pending a charge for an enumerated misdemeano r defined in Rule 5-7

403.1 NMRA, who is charged but not arrested for a new felony or new enumerated misdemeanor 8

alleged to have occurred during the period of initial release, shall be summonsed by the court with 9

current jurisdiction over the defendant’s ini tial conditions of release to [an initial] a hearing 10

required by Paragraph D of this rule, unless the court finds that the interests of justice may be 11

better served by the issuance of a bench warrant. The [initial] hearing required by Paragraph D 12

shall be conducted by the court with current jurisdiction over the defendant’s initial conditions of 13

release. 14

[D. Initial hearing. 15

(1) The court shall hold an initial hearing as soon as practicable. If the defendant 16

is in custody, the hearing shall be held no later than three (3) days after the defendant is detained 17

if the defendant is being held in the local detention center, or no later than five (5) days after the 18

defendant is detained if the defendant is not being held in the local detention center. If the 19

defendant is not in custody, the hearing shall be held no later than ten (10) days after the motion 20

or notice of alleged violation is filed. 21

(2) At the initial hearing, the court may continue the existing conditions of 22

release, set different conditions of release, or if the court is considering revocation of release, the 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 3

court shall schedule an evidentiary hearing under Paragraph E of this rule, unless waived by the 1

defendant. 2

(3) If at the conclusion of the initial hearing, the court continues or amends the 3

defendant’s conditions of release, then a written order continuing or amending the defendant’s 4

conditions of release shall be provided to the defendant at the time of release from custody if the 5

defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody. 6

If the defendant waives the evidentiary hearing under Paragraph E and the court finds that the 7

conditions of release should be revoked, an order revoking conditions of release, including written 8

findings of the individualized facts justifying revocation, shall be filed within three (3) days of the 9

initial hearing.] 10

[E.] D. [Evidentiary hearing] Hearing on alleged violation. 11

(1) Time. [The evidentiary] A hearing shall be held as soon as practicable. If 12

the defendant is in custody, the [evidentiary] hearing shall be held no later than [seven (7)] five (5) 13

days after the [initial hearing] defendant is detained. If the defendant is not in custody, the 14

[evidentiary] hearing shall be held no later than ten (10) days after the [initial hearing] motion or 15

notice of alleged violation is filed. 16

(2) At the hearing, the court may continue the existing conditions of release, set 17

different conditions of release, or if the court is considering revocation of release, the court shall 18

conduct an evidentiary hearing, unless waived by the defendant. 19

[(2)] (3) Defendant’s rights. The defendant has the right to be present and to be 20

represented by counsel and, if financially unable to obtain counsel, to have counsel appointed. 21

[The] If the court is considering revocation of release and an evidentiary hearing is conducted, the 22

defendant shall be afforded an opportunity to testify, to present witnesses, to compel the attendance 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 4

of witnesses, to cross-examine witnesses who appear at the hearing, and to present information by 1

proffer or otherwise. If the defendant testifies at the hearing, the defendant’s testimony shall not 2

be used against the defendant at trial except for impeachment purposes or in a subsequent 3

prosecution for perjury. 4

[F.] E. Order at completion of [evidentiary] hearing. 5

(1) If at the conclusion of the hearing, the court continues or amends the 6

defendant’s conditions of release, then a written order continuing or amending the defendant’s 7

conditions of release shall be provided to the defendant at the time of the release from custody if 8

the defendant is in custody, or within three (3) days of the hearing if the defendant is not in custody. 9

(2) If the defendant waives an evidentiary hearing and the court finds that the 10

conditions of release should be revoked, an order revoking conditions of release, including written 11

findings of the individualized facts justifying revocation, shall be filed within three (3) days of the 12

hearing. 13

(3) If an evidentiary hearing is conducted, at [At] the completion of [an] the 14

evidentiary hearing, the court shall determine whether the defendant has violated a condition of 15

release or whether revocation of the defendant’s release is necessary to prevent interference with 16

witnesses or the proper administration of justice, and may: 17

[(1)] (a) continue the existing conditions of release; 18

[(2)] (b) set new or additional conditions of release in accordance with 19

Rule 5-401 NMRA; or 20

[(3)] (c) revoke the defendant’s release, if the court 21

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 5

[(a)] (i) finds either probable cause to believe that the defendant 1

committed a federal, state, or local crime while on release, or clear and convincing evidence that 2

the defendant has willfully violated any other condition of release; and 3

[(i) probable cause to believe that the defendant committed a 4

federal, state, or local crime while on release; or 5

(ii) clear and convincing evidence that the defendant has 6

willfully violated any other condition of release; and] 7

[(b)] (ii) finds clear and convincing evidence that either no condition 8

or combination of conditions will reasonably ensure the defendant’s compliance with the release 9

conditions ordered by the court, or revocation of the defendant’s release is necessary to prevent 10

interference with witnesses or the proper administration of justice. 11

[(i) no condition or combination of conditions will reasonably 12

ensure the defendant’s compliance with the release conditions ordered by the court; or 13

(ii) revocation of the defendant’s release is necessary to prevent 14

interference with witnesses or the proper administration of justice.] 15

(4) [An] If the court revokes conditions of release after an evidentiary hearing, 16

an order revoking release shall include written findings of the individualized facts justifying 17

revocation and shall be filed within three (3) days of the evidentiary hearing. 18

(5) If the court continues or amends the defendant’s conditions of release after 19

an evidentiary hearing, then a written order continuing or amending the defendant’s conditions of 20

release shall be provided to the defendant at the time of release from custody if the defendant is in 21

custody, or within three (3) days of the hearing if the defendant is not in custody. 22

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 6

[G.] F. Evidence. The New Mexico Rules of Evidence shall not apply to the presentation 1

and consideration of information at [any] a hearing under this rule. 2

[H.] G. Review of conditions. If the court enters an order setting new or additional 3

conditions of release, the defendant may file a motion to review the conditions under Rule 5-4

401(H) NMRA. If, on disposition of the motion, the defendant is detained or continues to be 5

detained because of a failure to meet a condition imposed, or is subject to a requirement to return 6

to custody after specified hours, the defendant may appeal in accordance with Rule 5-405 NMRA 7

and Rule 12-204 NMRA. 8

[I.] H. Expedited trial scheduling for defendant in custody. The district court shall 9

provide expedited priority scheduling in a case in which the defendant is detained pending trial. 10

The court shall hold a status review hearing in any case in which the defendant has been held for 11

more than six (6) months and every six (6) months thereaft er. The purpose of the status review 12

hearing is to conduct a meaningful review of the progress of the case. If the court determines that 13

insufficient progress has been made, then the court shall issue an appropriate scheduling order. 14

[J.] I. Appeal. If the court revokes the defendant’s release, the defendant may appeal in 15

accordance with Rule 5- 405 NMRA and Rule 12-204 NMRA. The appeal shall be heard in an 16

expedited manner. The defendant shall be detained pending the disposition of the appeal. 17

[K.] J. Petition for review of revocation order issued by magistrate, metropolitan, or 18

municipal court. If the magistrate, metropolitan, or municipal court issues an order revoking the 19

defendant’s release, the defendant may petition the district court for review under this paragraph. 20

(1) Petition; requirements. The petition shall include the specific facts that 21

warrant review by the district court and may include a request for a hearing. The petitioner shall 22

promptly 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 7

(a) file a copy of the district court petition in the magistrate, 1

metropolitan, or municipal court; 2

(b) serve a copy on the district attorney; and 3

(c) provide a copy to the assigned district court judge. 4

(2) Magistrate, metropolitan, or municipal court’s jurisdiction pending 5

determination of the petition. On the filing of the petition, the magistrate, metropolitan, or 6

municipal court’s jurisdiction to set or amend conditions of release shall be suspended pending 7

determination of the petition by the district court. The case shall proceed in the mag istrate, 8

metropolitan, or municipal court while the petition is pending. 9

(3) District court review. The district court shall rule on the petition in an 10

expedited manner. 11

(a) Within three (3) days after the petition is filed, the district court shall 12

take one of the following actions: 13

(i) issue an order affirming the revocation order; or 14

(ii) set a hearing to be held within ten (10) days after the filing 15

of the petition and promptly send a copy of the notice to the magistrate, metropolitan, or municipal 16

court. 17

(b) If the district court holds a hearing on the petition, at the conclusion 18

of the hearing the court shall issue either an order affirming the revocation order or an order setting 19

conditions of release in accordance with Rule 5-401 NMRA. 20

(4) Transmission of district court order to magistrate, metropolitan, or 21

municipal court. The district court shall promptly send the order to the magistrate, metropolitan, 22

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 8

or municipal court, and jurisdiction over the conditions of release sha ll revert to the magistrate, 1

metropolitan, or municipal court. 2

(5) Appeal. If the district court affirms the revocation order, the defendant may 3

appeal in accordance with Rule 5-405 NMRA and Rule 12-204 NMRA. 4

[L.] K. Judicial discretion; disqualifica tion and excusal. Action by any court on any 5

matter relating to pretrial release or detention shall not preclude the subsequent statutory 6

disqualification of a judge. A judge may not be excused from reviewing a lower court’s order 7

revoking conditions of re lease unless the judge is required to recuse under the provisions of the 8

New Mexico Constitution or the Code of Judicial Conduct. 9

[As amended, effective September 1, 1990; as amended by Supreme Court Order No. 13-8300-10

046, effective for all cases pending or filed on or after December 31, 2013; as amended by Supreme 11

Court Order No. 17-8300-005, effective for all cases pending or filed on or after July 1, 2017; as 12

amended by Supreme Court Order No. 18-8300-024, effective for all cases pending or filed on or 13

after February 1, 2019; as amended by Supreme Court Order Nos. 20-8300-013 and 20-8300-019, 14

effective for all cases pending or filed on or after November 23, 2020; as amended by Supreme 15

Court Order No. 22- 8300-015, effective for all cases pending or filed on or after December 31, 16

2022; as amended by Supreme Court Order No. S -1-RCR-2024-00068, effective for all cases 17

pending or filed on or after May 8, 2024; as provisionally amended by Supreme Court Order No. 18

S-1-AO-2025-00013, effective for all cases pending or filed on or after July 29, 2025.] 19

Committee commentary. — The 2017 amendments to this rule clarify the procedure for 20

the court to follow when considering revocation of the defendant’s pretrial release or modification 21

of the defendant’s conditions of release for violating the conditions of release. In State v. 22

Segura, 2014-NMCA-037, ¶¶ 1, 24- 25, 321 P.3d 140, overruled on other grounds by State v. 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 9

Ameer, 2018-NMSC-030, ¶ 69, 458 P.3d 390, the Court of Appeals held that due process requires 1

courts to afford the defendant notice and an opportunity to be heard before the court may revoke 2

the defendant’s bail and remand the defendant into custody. See also Tijerina v. Baker, 1968-3

NMSC-009, ¶ 9, 78 N.M. 770, 438 P.2d 514 (explaining that the right to bail is not absolute); id. 4

¶ 10 (“If the court has inherent power to revoke bail of a defendant during trial and pending final 5

disposition of the criminal case in order to prevent interference with witnesses or the proper 6

administration of justice, the right to do so before trial seems to be equally apparent under a proper 7

set of facts.”); State v. Rivera, 2003-NMCA-059, ¶ 20, 133 N.M. 571, 66 P.3d 344 (“Conditions 8

of release are separate, coercive powers of a court, apart from the bond itself. They are enforceable 9

by immediate arrest, revocation, or modification if violated. Such conditions of release are 10

intended to protect the public and keep the defendant in line.”), rev’d on other grounds, 2004-11

NMSC-001, 134 N.M. 768, 82 P.3d 939. 12

[As used in Paragraph D, a “l ocal detention center” is “one that is commonly used by the 13

district court in the normal course of business and not necessarily within the territorial jurisdiction 14

of the court.” Rule 5-401(A)(3) NMRA.] 15

Paragraph [G] F provides that the New Mexico Rules of Evidence do not apply at a 16

revocation hearing, consistent with Rule 11- 1101(D)(3)(e) NMRA. As with courts in other types 17

of proceedings in which the Rules of Evidence do not apply, a court presiding over a pretrial 18

detention hearing is responsible “for as sessing the reliability and accuracy” of the information 19

presented. See United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (explaining that in a 20

pretrial detention hearing the judge “retains the responsibility for assessing the reliability and 21

accuracy of the government’s information, whether presented by proffer or by direct proof”); State 22

v. Ingram, 155 A.3d 597 (N.J. Super. Ct. App. Div. 2017) (holding that it is within the discretion 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 10

of the detention hearing court to determine whether a pretrial detention order may be supported in 1

an individual case by documentary evidence, proffer, one or more live witnesses, or other forms 2

of information the court deems sufficient); see also United States v. Marshall, 519 F. Supp. 751, 3

754 (E.D. Wis. 1981) (“S o long as the information which the sentencing judge considers has 4

sufficient indicia of reliability to support its probable accuracy, the information may properly be 5

taken into account in passing sentence.”), aff’d, 719 F.2d 887 (7th Cir. 1983); State v. 6

Guthrie, 2011-NMSC-014, ¶¶ 36- 39, 43, 150 N.M. 84, 257 P.3d 904 (explaining that in a 7

probation revocation hearing, the court should focus on the reliability of the evidence); State v. 8

Vigil, 1982-NMCA-058, ¶ 24, 97 N.M. 749, 643 P.2d 618 (holding in a probation revocation 9

hearing that hearsay untested for accuracy or reliability lacked probative value). 10

Paragraph [I] H requires the district court to prioritize the scheduling of trial and other 11

proceedings for cases in which the defendant is held in custody. See generally United States v. 12

Salerno, 481 U.S. 739, 747 (1987) (concluding that the detention provisions in the Bail Reform 13

Act, 18 U.S.C. § 3142, did not violate due process, in part because of “the stringent time limitations 14

of the Speedy Trial Act,” 18 U.S.C. § 3161); Am. Bar Ass’n, ABA Standards for Criminal Justice: 15

Pretrial Release, Standard 10-5.11 (3d ed. 2007) (“Every jurisdiction should establish, by statute 16

or court rule, accelerated time limitations within which detained defendants should be tried 17

consistent with the sound administration of justice.”). This rule does not preclude earlier or more 18

regular status review hearings. The purpose of the hearing is to determine how best to expedite a 19

trial in the case. A meaningful review of the progress of the case includes assessment of the parties’ 20

compliance with applicable deadlines, satisfaction of discovery obligations, and witness 21

availability, among other matters. If the court determines that the parties have made insufficient 22

progress on these measures, then it shall issue an appropriate scheduling order. 23

DISTRICT COURT CRIMINAL Supreme Court Approved

RULE 5-403 July 29, 2025

RCR No. S-1-RCR-2025-00150 11

Consistent with Rule 5-106 NMRA, a party cannot exercise the statutory right to excuse a 1

judge who is reviewing a lower court’s order setting or revoking conditions of release. See NMSA 2

1978, § 38-3-9 (1985). Paragraph [L] K of this rule does not prevent a judge from filing a recusal 3

either on the court’s own motion or motion of a party. See N.M. Const. art. VI, § 18; Rule 21-4

211 NMRA. 5

The 1975 amendment to Rule 5-402 NMRA makes it clear that this rule may be invoked 6

while the defendant is appealing a conviction. See Rule 5-402 and commentary. 7

[As amended by Supreme Court Order No. 17- 8300-005, effective for all cases pending or filed 8

on or after July 1, 2017; as amended by Supreme Court Order No. 22-8300-015, effective for all 9

cases pending or filed on or after December 31, 2022; as amended by Supreme Court Order No. 10

S-1-RCR-2023-00021, effective for all cases pending or filed on or after December 31, 2023; as 11

provisionally amended by Supreme Court Order No. S-1-AO-2025-00013, effective for all cases 12

pending or filed on or after July 29, 2025.] 13

MAGISTRATE COURT CRIMINAL Supreme Court Approved

RULE 6-401 July 29, 2025

RCR No. S-1-RCR-2025-00150 1

6-401. Pretrial release. 1

A. Hearing. 2

(1) Time. The court shall conduct a hearing under this rule and issue an order 3

setting conditions of release as soon as practicable, but in no event later than 4

(a) if the defendant remains in custody, three (3) days after the date of 5

arrest if the defendant is being held in the local detention center, or five (5) days after the date of 6

arrest if the defendant is not being held in the local detention center; 7

(b) first appearance or arraignment, if the defendant is not in custody; 8

or 9

(c) if the defendant remains in custody pending a hearing under Rule 6-10

403(D) NMRA, then within three (3) days after a temporary detention order is placed or the date 11

of the [initial] hearing conducted under Rule 6-403 NMRA if the defendant is being held in the 12

local detention center, or five (5) days after the date of the [initial] hearing conducted under Rule 6-13

403 NMRA if the defendant is not being held in the local detention center. 14

(2) Right to counsel. If the defendant does not have counsel at the initial release 15

conditions hearing and is not ordered released at the hearing, the matter shall be continued for no 16

longer than three (3) additional days for a further hearing to review conditions of release, at which 17

the defendant shall have the right to assistance of retained or appointed counsel. 18

(3) Local detention center; defined. A “local detention center” is one that is 19

commonly used by the magistrate court in the normal course of business and not necessarily within 20

the territorial jurisdiction of the court. 21

B. Right to pretrial release; recognizance or unsecured appearance bond. Any 22

defendant eligible for pretrial release under Article II, Section 13 of the New Mexico 23

MAGISTRATE COURT CRIMINAL Supreme Court Approved

RULE 6-401 July 29, 2025

RCR No. S-1-RCR-2025-00150 2

Constitution shall be ordered released pending trial on the defendant’s personal recognizance or 1

on the execution of an unsecured appearance bond in an amount set by the court. The court may 2

impose non-monetary conditions of release under Pa ragraph D of this rule, but the court shall 3

impose the least restrictive condition or combination of conditions that will reasonably ensure the 4

appearance of the defendant as required and the safety of any other person or the community. The 5

court may order execution of a secured appearance bond only if the court makes written findings 6

of particularized reasons why the release will not reasonably ensure the appearance of the 7

defendant as required under Paragraphs E and F of this rule. 8

C. Factors to be consid ered in determining conditions of release. In determining 9

the least restrictive conditions of release that will reasonably ensure the appearance of the 10

defendant as required and the safety of any other person and the community, the court shall 11

consider any available results of a pretrial risk assessment instrument approved by the Supreme 12

Court for use in the jurisdiction and the financial resources of the defendant. In addition, the court 13

may take into account the available information about 14

(1) the nature and circumstances of the offense charged, including whether the 15

offense is a crime of violence or involves alcohol or drugs; 16

(2) the weight of the evidence against the defendant; 17

(3) the history and characteristics of the defendant, including 18

(a) the defendant’s character, physical and mental condition, family 19

ties, employment, past and present residences, length of residence in the community, community 20

ties, past conduct, history relating to drug or alcohol abuse, criminal history, and re cord about 21

appearance at court proceedings; and 22

MAGISTRATE COURT CRIMINAL Supreme Court Approved

RULE 6-401 July 29, 2025

RCR No. S-1-RCR-2025-00150 3

(b) whether, at the time of the current offense or arrest, the defendant 1

was on probation, on parole, or on other release pending trial, sentencing, or appeal for any offense 2

under federal, state, or local law; 3

(4) the nature and seriousness of the danger to any person or the community 4

that would be posed by the defendant’s release; 5

(5) any other facts tending to indicate the defendant may or may not be likely 6

to appear as required; and 7

(6) any other facts tending to indicate the defendant may or may not commit 8

new crimes if released. 9