Having your child charged with a crime is extremely upsetting and hugely stressful for most parents. If your child has been charged, you will likely have many questions about the juvenile criminal process.
The juvenile courts run a little bit differently than the adult criminal courts. Because of this, it is important to work with an attorney experienced in juvenile criminal court matters.
What’s different about the juvenile courts? There are many things that are different in the juvenile setting. First, and most beneficial to juveniles and their parents, the juvenile courts in New Mexico are concerned principally with rehabilitation, not punishment. In fact, the juvenile proceeding itself begins with a Petition alleging delinquency rather than a criminal complaint.
Don’t misunderstand, the Petition may allege very serious violations of criminal statutes. But the goal is rehabilitation not simply conviction, incarceration or punishment. As such, there are many opportunities to deal with the charges in ways that are not necessarily available in the adult setting.
You should understand also that some courts and prosecutors are more willing than others to work with the juvenile toward these possible less adverse outcomes.
In very minor cases, the case may be resolved at the preliminary inquiry on an informal basis. If this is not possible for one reason or another, there may be an opportunity to suspend the proceedings with a time waiver. This is more formal than the preliminary inquiry but it is an early exit from the criminal process with no conviction.
Even if these two are not possible, there may still be an opportunity to avoid conviction with a consent decree. Each of these possibilities comes with varying degrees of supervision of the child by the state. The outcome will also dictate the level of formality of this supervision.
Questions will likely arise as to possible supervisory periods as well as the conditions of the supervision for each of these outcomes. In case these outcomes are not available, the same type questions about probation time periods and conditions will arise.
Perhaps the ultimate question is how long can my child be placed in custody of the state (i.e. jail by another name). The simple answer is any violation under the children’s code carries up to 2 years of custody. The same two years applies to probation.
However, the question is more complicated than that because the state can actually hold a “delinquent” child until they reach the age of 18. This means that custody and/or probation can be extended until the child turns 18.
Repeated extensions of the probationary period and extensions of time in custody or some combination of both are not uncommon. This can come up as a result of subsequent criminal offenses, some serious and some not so serious. It can result from failure to abide by technical terms of probation such as curfew. It can result because the parents are not properly supervising the child.
However, the most common basis for extension is the use of drugs and/or alcohol. Some might be surprised that the most common culprit is marijuana. And despite what the recent developments regarding marijuana legalization might suggest, use of marijuana while on probation is taken very seriously by the courts, prosecutors and probation officers.
The above is really just a broad survey of the issues. You will likely have many more questions. In fact, each answer may raise as many questions as it answers. We will try to add useful FAQ’s over time that will help you understanding the process. Hopefully, this will also lessen the stress at least a little to you, your child and your family.
However, keep in mind that this is meant only as a general overview. There is no substitute for the guidance of an attorney.
What is a Time Waiver in a Juvenile Criminal Proceeding?
A time waiver is a fairly common outcome in juvenile criminal proceedings. However, it is typically only available for first time offenders and for non-violent and non-felony charges.
Having said that, what is a time waiver if your child is lucky enough to get one? Basically, a time waiver suspends the criminal proceedings for a certain period of time. The time period is generally 6 months but can on occasion be as little as 3 months or as long as one year. In certain cases, the time waiver can be extended. However, this is pretty rare which will be explained below.
So why would suspending the proceedings be helpful and why would it be necessary? Again, time waivers are generally given only to first time juvenile offenders and they are generally given only for non-violent misdemeanor charges. So why doesn’t the district attorney just dismiss the case? Because the prosecutor wants to maintain jurisdiction (i.e. control) over the child for the time period in question for supervision purposes.
This probably raises further questions. Perhaps a discussion of the speedy trial rule will help. Under the 6th Amendment, all defendants charged with a crime have a right to a speedy trial. In New Mexico, the length of time allowed depends on the seriousness of the charges. In misdemeanor criminal proceedigns, the speedy trial rule is construed to be 6 months or more precisely 182 days. This same time period is typically used for juvenile cases.
This means that if the case is not taken to trial within 182 days of the arraignment, the case will be dismissed on speedy trial grounds. This is the reason most time waivers are 6 months. The time waiver suspends the proceedings. The “waiver” aspect is a waiver of the right to a speedy trial for the period stated in the time waiver. This means that the speedy trial rule will not begin to run until and unless the time waiver is violated. If the time waiver is not violated, then the case is generally dismissed at the end of the stated period. If it is violated, the case begins to run again as normal.
This gets back to a couple of issues above. First, the time waiver allows the state to maintain jurisdiction over the child while monitoring the child’s progress on whatever terms are stated in the time waiver (i.e. no more violations of law, no drugs or alcohol and any other term the prosecutor deems necessary). Second, if the child is not complying, the time waiver will typically be revoked and the case will proceed as any other juvenile criminal matter. In some cases of minor misconduct or violations of the time waiver, some but not all prosecutors, may simply agree to extend the time waiver rather than revoking it.
An extension of the time waiver basically gives the child a second chance. This is pretty rare. It is much more common for the prosecutor to just revoke the time waiver and reinstate the case. As such, it is extremely important to comply with the conditions.
A time waiver is not a right. Some prosecutors and some offices are more likely to give a time waiver than others. If your child gets a time waiver, it can save the child from conviction, probation, court hearings, and so on. As a rule, it is a gift and should be treated as such.
What is a Preliminary Inquiry in a New Mexico Juvenile Criminal Case and Do I Have to Attend?
Let’s start with the second part of the question on whether you have to attend. No, you do not have to attend a preliminary inquiry. But there are situations where you definitely would want to attend.
Having said that, a preliminary inquiry is an informal meeting between the child, the parent(s) and a juvenile probation officer. It is informal in the fact that it is just an office meeting. It is not a meeting in court. There are no legal formalities to the meeting.
Specifically, neither you nor your child are under oath. More importantly, nothing that is said in the meeting is admissible in court against your child. The statements made are not testimony. They cannot be used as admissions of guilt.
Because of the informality, you do not need an attorney. You have a right to have an attorney. However, it is not necessarily a good use of funds. The attorneys have little to add to the meeting. So you would really only take an attorney for comfort rather than legal necessity.
Though the statements during the meeting are not admissions and cannot be used against your child in the prosecution of the case, they can be used for other purposes related to whether charges are even filed, the conditions of supervision in cases of time waivers or probation, and sentencing.
Perhaps, the most important thing to note about a preliminary inquiry is that in minor first time offenses, the juvenile probation officer can dispose of the matter informally. This means that criminal charges can be avoided.
This brings us back to the question in the beginning of “why should I go to a preliminary inquiry?” You should absolutely go in minor first time offenses. After all, it is possible that criminal charges can be avoided. You should go in many cases even where the charges are more serious and there is a prior criminal history with your child.
Because the probation officer can make recommendations on conditions of probation or the conditions of a time waiver, what occurs during the meeting will often weigh heavily on those recommendations. In other words, the probation officer will be looking to see what kind of supervision is necessary for your child.
You would attend the preliminary inquiry because juvenile probation officers are much more likely to make reasonable recommendations regarding conditions of probation (supervision) if the parents are involved.
If it appears that parents are not involved and the child lacks supervision, then the probation officer will likely suggest much more onerous conditions for probation. After all, if the juvenile probation officer feels that you are not properly supervising the child, the State of New Mexico will happily take over those tasks in the form of very strict terms of probation.
Even where the child is charged with a felony (which is much more common than one might expect), it is often worth going to the preliminary inquiry for the reasons stated above. Keep in mind that you are doing this as caring and concerned parent. It will not avoid criminal charges since the juvenile probation officers have no discretion in felony cases and must forward the case to the district attorney. However, it can affect sentencing and/or conditions of probation.
In summary, a preliminary inquiry is an informal meeting between you, you child and the juvenile probation officer. You don’t have to go but there are a number of reasons why you would want to go. Because having your child charged with a crime is such a stressful and emotional event and it is not unusual to be somewhat nervous or even fearful of the situation, it is often useful to talk to an experienced juvenile criminal attorney before the preliminary inquiry meeting so you will know what to expect.