Misdemeanor vs. Felony
In New Mexico, a felony crime is generally considered to be a serious crime with a potential jail sentence exceeding 1 year. Examples of felony crimes are burglary, drug trafficking, kidnapping, and all sex crimes. A misdemeanor crime is generally defined as a less serious crime with a potential jail sentence of less than one year. Examples of misdemeanor crimes are DWI, assault, driving on a revoked license, and all other traffic offenses.
How and When You Can Be Arrested
For the commission of misdemeanor crimes, you may be arrested under the following circumstances:
- You are accused of committing a crime in the presence of a police officer;
- You are accused of a crime falling under the warrantless arrest exception, such as battery on a household member, which allows you to be arrested without a warrant;
- You are arrested pursuant to an arrest warrant. It should be noted that arrests pursuant to arrest warrants in misdemeanor cases are not very common in New Mexico. Typically, you will be called to court by a summons rather than being arrested if you are not at the scene when the alleged misdemeanor was committed.
You may be arrested for a felony offense under the following circumstances:
- You are accused of committing a felony crime in the presence of a police officer;
- You are accused of committing a felony crime with exigent circumstances;
- You are arrested pursuant to an arrest warrant.
What Happens After Arrest
After you are arrested, you will be transported to a police station or jail. At that time you will be booked which usually includes fingerprinting and photographing. In some circumstances, you will be advised of your Miranda rights, and asked to answer questions. You should never provide a statement to the police without legal counsel present.
What To Do After Arrest
After arrest, it is beneficial to your case to take the following steps:
- Exercise your right to remain silent. You have an absolute right under the Fifth Amendment not to talk to law enforcement about your case. Regardless of the threats or promises being made to you, you should exercise this right until you have spoken with legal counsel.
- Attempt to contact someone who can arrange for your bail. When you have been arrested, your arrest warrant will have a bail amount attached to it. If you have been arrested without a warrant, such as in a DWI case, a bail will be set for you shortly after your arrest. You should take advantage of your opportunity to make a phone call to contact someone who may be able to arrange your bail, and/or contact a bail bondsman.
The Ten-Day Rule
If you have been arrested and are unable to post bond, the State has only ten days from the date of your arrest to submit your case for a Preliminary Hearing or a Grand Jury proceeding. If the State fails to do so, you will automatically be released after this time period. In less serious cases, such as possession of a controlled substance, it is not uncommon for a defendant to be released on the ten-day rule.