The answer is, with some very important qualifications, yes, you will be released!
Why the answer is “yes” and should be yes takes us through a bit of New Mexico legal history.
THE OLD DAYS: MONEY BAIL
Prior to 2014-2015, after a person was arrested and brought to court, the judge might impose monetary bail conditions. The judge might require cash or a bond to be posted before the person could get out. If the judge set bail at an amount of money that the person could not afford, that person would stay in jail until the case closed out.
If you could pull together 10% of the amount, usually a bail bondsman would put up the rest and take that 10% as a fee, but otherwise, you were stuck in jail because you couldn’t afford bail.
You can see how this was an unfair and illogical system. Before a person is convicted, they remain presumed innocent under our Constitution. Should a person stay in jail just because they can’t afford bail? This question came before the New Mexico Supreme Court in State v. Brown, 2014-NMSC-038.
Walter Brown was charged with murder and held on bail of the amount of $250,000. No doubt, murder is an extraordinarily serious charge. But it’s not yet proven, and $250,000 is an arbitrary number. Some folks can go to a bail bondsman and give him that 10% and spring him loose; some can’t. So freedom equals $25k in cash to a bail bondsman? Is that a logical and fair system?
The Supreme Court of New Mexico said no, it is not fair. Money bail is not going to be what determines whether a person stays in jail or goes free pretrial except under certain circumstances.
A CONSTITUTIONAL RIGHT TO PRETRIAL RELEASE
Soon after, the people of New Mexico voted to alter our State Constitution. Now, a person has a right to pretrial release. If the prosecution wants to hold you in jail pretrial, they have to file a motion for pretrial detention and argue it against your lawyer in front of a District Court Judge.
This is a wise and just change in the law. Now our presumption of innocence is honored. You have the right to fight your case on the outside, a right to not be locked up and separated from your family and work while your lawyer searches for evidence, organizes discovery, and prepares your defense at trial.
If the State wants to hold you in jail, they can file that motion, and that will hold you in jail, but your lawyer will have the chance to fight it and bring forward evidence and proposals to avoid jail pretrial.
So the answer is: YES, you will be released, unless the prosecutors file that pretrial detention motion or you already have open cases pending.
THE CRUCIAL EXCEPTIONS THAT MAKE THE RULE
It is a lot more complicated if the prosecutors file a motion for pretrial detention or if you already have a case and were already released on conditions of release when you picked up the new case. To learn more about what will happen at a pre-trial detention motion hearing, please read What will happen at my pretrial detention motion? – Max Pines Law.
But remember the power of the presumption of innocence and our newly recognized constitutional right to pretrial release.