2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 3 - Bail
Section 31-3-9 - Failure to appear; penalty.

A person released pending any proceeding related to the prosecution or appeal of a criminal offense or a probation revocation proceeding who willfully fails to appear before any court or judicial officer as required:

A. is guilty of a fourth degree felony, if he was released in connection with a felony proceeding; or

B. is guilty of a petty misdemeanor, if he was released in connection with a misdemeanor or a petty misdemeanor proceeding.

History: 1953 Comp., § 41-3-8, enacted by Laws 1973, ch. 73, § 6; 1999, ch. 150, § 1.

Repeals. — Laws 1972, ch. 71, § 18, repealed former 41-3-8, 1953 Comp., relating to procedures in the magistrate court after defendant's arrest.

The 1999 amendment, effective July 1, 1999, substituted "A" for "Any" and "any proceeding related to the prosecution or appeal of a criminal offense or a probation revocation proceeding" for "trial or appeal in any criminal action" in the first paragraph, substituted "proceeding" for "charge" in Subsection A, and deleted "charge of a" following "in connection with" and added "proceeding" in Subsection B.

This section is not unconstitutionally vague. State v. Aranda, 1980-NMCA-130, 94 N.M. 784, 617 P.2d 173.

Only general intent required. — Failure to appear is not a specific intent crime; therefore, rejection of defendant's tendered instruction defining "willfulness" as requiring specific intent to abscond or thwart legal process was not erroneous. State v. Elliott, 2001-NMCA-108, 131 N.M. 390, 37 P.3d 107, cert. quashed, 132 N.M. 288, 47 P.3d 447 (2002).

Sentencing proceedings included. — Failure to appear at sentencing is encompassed by this section, since the word "trial", which formerly appeared in this section, could be construed as including all those proceedings within the district court's jurisdiction, at least through sentencing. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614, cert. denied, 110 N.M. 260, 794 P.2d 734.

Attorneys lack authority to compel appearance of individuals. — Although attorneys are officers of the court, there is no authority under which attorneys can require the appearance of an individual before a court unless authorized to do so by court process, court rule or enabling legislation. Where no such authorization appeared in the record, defendant who willfully failed to appear in district court after making oral promise to assistant district attorney that he would do so to complete plea bargaining agreement on drug charge was not required to appear for purposes of this section, and could not be convicted under Subsection A. State v. Easterling, 1976-NMCA-078, 89 N.M. 486, 553 P.2d 1293.

No requirement of proving express notice to defendant. — The presence or absence of notice to the defendant may have a bearing at trial on the question of willfulness, depending upon the other facts of the case, but express notice to the defendant is not an independent element, apart from the determination of willfulness, which the state must prove at either the preliminary hearing or at trial. State v. Masters, 1982-NMCA-166, 99 N.M. 58, 653 P.2d 889.

Willful failure to appear is question of fact. — The word "willfully," as used in this section, concerns the defendant's state of mind and is a factual question. State v. Masters, 1982-NMCA-166, 99 N.M. 58, 653 P.2d 889.

Court order failed to compel appearance. — Facts as charged and as elicited at trial simply did not constitute a violation of this section when "strictly construed" against the State because: (1) the trial court's order violated due process in that it was unclear whether or not the defendant was required to appear on the date in question; and (2) courts would not extend punishment to cases that were not plainly within the statutory language used. State v. Hicks, 2002-NMCA-038, 132 N.M. 68, 43 P.3d 1078, cert. denied, 132 N.M. 83, 44 P.3d 529.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Failure to appear, and the like, resulting in forfeiture or conditional forfeiture of bail, as affecting right to second admission to bail in same noncapital criminal case, 29 A.L.R.2d 945.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

8 C.J.S. Bail; Release and Detention Pending Proceedings §§ 70 to 75.