2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 16A - Preprosecution Diversion
Section 31-16A-7 - Program participation; reasonable conditions; termination.
A. A defendant may be diverted to a preprosecution diversion program for no less than six months and no longer than two years. A district attorney may extend the diversion period for a defendant as a disciplinary measure or to allow adequate time for restitution; provided that the extension coupled with the original period does not exceed two years.
B. A district attorney may require as a program requirement that a defendant agree to such reasonable conditions as the district attorney deems necessary to ensure that the defendant will observe the laws of the United States and the various states and the ordinances of any municipality.
C. If a defendant does not comply with the terms, conditions and requirements of a preprosecution diversion program, the defendant's participation in the program may be terminated, and the district attorney may proceed with the suspended criminal prosecution of the defendant.
D. If the participation of a defendant in a preprosecution diversion program is terminated, the district attorney shall state in writing the specific reasons for the termination, which reasons shall be available for review by the defendant and the defendant's counsel.
History: Laws 1981, ch. 33, § 7; 1984, ch. 110, § 5; 2019, ch. 211, § 6.
ANNOTATIONSCross references. — For creation of district attorney fund, see 36-1-28 NMSA 1978.
The 2019 amendment, effective July 1, 2019, removed provisions related to the mandatory reimbursement of costs to participate in preprosecution diversion, and made it discretionary to remove a defendant from a preprosecution diversion program for failure to comply with requirements of a program; in the section heading, deleted "costs" and added "reasonable conditions"; added new subsection designation "B." and redesignated former Subsections B and C as Subsection C and D, respectively; in Subsection B, after "any municipality", deleted the remainder of the subsection, which required the defendant to reimburse the district attorney's office for the costs related to his participation in the preprosecution diversion program; and in Subsection C, after "participation in the program", deleted "shall" and added "may".
The 1984 amendment added the third and fourth sentences in Subsection A.
Time limit for refiling charges. — The legislature did not intend to limit the state's ability to refile charges against a defendant for non-compliance with a preprosecution diversion program. State v. Davis, 2007-NMCA-022, 141 N.M. 205, 152 P.3d 848, cert. denied, 2007-NMCERT-002, 141 N.M. 339, 154 P.3d 1239.
Prosecutor's unilateral termination limited. — The prosecutor's authority to unilaterally terminate a diversion program is limited to a termination on the basis of defendant's noncompliance with the program. State v. Trammel, 1983-NMCA-139, 100 N.M. 543, 673 P.2d 827.
A trial court may require a prosecutor to keep his end of a diversion program agreement and may determine whether the prosecutor has terminated the preprosecution diversion agreement in violation of his statutory authority. State v. Trammel, 1983-NMCA-139, 100 N.M. 543, 673 P.2d 827.
Termination of preprosecution agreement by state. — The state may terminate a preprosecution diversion agreement, even if the sole ground is the defendant's nonwilful failure to make restitution, but only if there are no adequate alternatives to termination which will meet the state's legitimate penological interests. State v. Jimenez, 1991-NMSC-041, 111 N.M. 782, 810 P.2d 801.
Court review of reasons for failure to pay. — In proceedings to terminate a preprosecution diversion agreement for failure to pay restitution, the court reviewing the termination must first inquire into the reasons for the failure to pay. State v. Jimenez, 1991-NMSC-041, 111 N.M. 782, 810 P.2d 801.
If a defendant has wilfully refused to pay or has failed to make sufficient bona fide efforts legally to acquire the resources to pay, the state may revoke a preprosecution diversion agreement and begin prosecution of the alleged crime or crimes. If, however, the court determines that the defendant has not been at fault in failing to make restitution, then the court must consider whether there are alternatives to termination which will meet the state's legitimate penal interests. State v. Jimenez, 1991-NMSC-041, 111 N.M. 782, 810 P.2d 801.
Only if a court determines that alternative measures are not adequate to meet the state's interests may that court uphold termination of a preprosecution diversion agreement when the defendant has made sufficient bona fide efforts to pay. State v. Jimenez, 1991-NMSC-041, 111 N.M. 782, 810 P.2d 801.
Wrongful termination of agreement as defense. — A claim that a prosecutor has wrongly terminated a diversion agreement is a defense to the initiation of a criminal prosecution and must be raised prior to trial. State v. Trammel, 1983-NMCA-139, 100 N.M. 543, 673 P.2d 827.
Six-month trial period starts when arraignment waived. — Since the defendant was originally indicted for numerous offenses, was diverted into a preprosecution diversion program (PDP), after which the state dismissed the indictment, was later terminated from the program because she had violated the terms of PDP contract, was reindicted on the same charges for which she had previously been indicted, and waived her arraignment on the charges in the second indictment, the six-month time period for commencement of trial (Rule 5-604B NMRA) was calculated from the date the defendant waived arraignment on the second complaint, and not from the date the defendant was terminated from the PDP, where there was no evidence that the dismissal of the initial indictment and the defendant's later reindictment were carried out for purposes of delay or an attempt to circumvent Rule 5-604B(6) NMRA. State v. Altherr, 1994-NMCA-029, 117 N.M. 403, 872 P.2d 376, cert. denied, 117 N.M. 524, 873 P.2d 270.
