Know the Law Before the Law Knows You

Criminal Matters

If someone is arrested for a criminal offense, what does he or she have a right to expect from the arresting officer?

If arrested, you can expect to be thoroughly searched for weapons, handcuffed, and taken to a police station unless the offense is a minor one like a traffic violation. If the police wish to question you about the offense, you will be advised of your rights under the United States Constitution (your “Miranda” rights); that is, you will be told that you don’t need to answer any questions about the offense, that you have the right to have a lawyer present during questioning, and that a lawyer will be appointed to assist you if you cannot afford one. If the police do not wish to question you, they are not required to give these warnings.

What basic things should a person remember if arrested?

You have an absolute right to refuse to discuss the case with anyone, and you should not answer questions without consulting a lawyer. If you request a lawyer but cannot afford to pay the lawyer’s fee, one will be appointed to represent you. If you do answer questions or volunteer information, your statements can almost certainly be used as evidence against you at your trial. This is often true of oral statements as well as those that are written. Police officers cannot force you to answer questions by threats and cannot bargain leniency in exchange for your statement. If you voluntarily agree to permit police to search you or your property, anything they find can be used as evidence against you. If you choose to answer questions, take tests, or permit a search, you may change your mind at any time and refuse further cooperation, but anything already obtained by the police can be used as evidence.

How soon after an arrest must that person appear before a judge?

You must be taken in front of a magistrate judge without “unnecessary delay” after being arrested. In most cases, this will be done within 24 hours of your arrest, but the delay may be longer on weekends and holidays. The judge will tell you what you are charged with, inform you of certain rights, and set the amount of your bail, unless you are charged in one of the circumstances in which bail may be denied. If you cannot afford an attorney and you wish to have one appointed, you should tell the judge during this hearing.

What does it mean to be released on bail?

Bail is a security, usually money, given by a person arrested to ensure his appearance in court. In New Mexico, bail is permitted in almost all cases. A magistrate judge will determine the amount at which the bail is set. You may be released on your promise to appear in court (“on your own recognizance”), or you may be required to post an amount of cash or “surety bond” in which someone guarantees your appearance in court. If you do not appear as promised, the amount of your bail will be forfeited and a warrant can be issued for your arrest.

This is GENERAL and BASIC information only. Laws are constantly changing. Exceptions and special circumstances exist. You should seek legal advice from an attorney to your choice who can take into account all the factors relevant to your particular situation.