Can I Change the Conditions of Release (and if so, How)?

If you have been charged with a crime in New Mexico, then you most likely have conditions of release. Some of these conditions are non-negotiable. Depending on the nature and severity of the charges against you, others might be negotiable. So the first question is can you change the conditions of release? If so, the how becomes important and this is what we will address here.

Deviations from Standard Conditions of Release Best Handled Early

To change the conditions of release, your attorney will need to request that the judge waive the particular condition or provide limited exceptions to the condition. This would best be handled at the first appearance or arraignment. However, it can be done later in case you did not have an attorney at the first appearance or arraignment.

In those cases where you do not have an attorney, it is possible to make the request yourself. However, it is generally necessary to get the prosecutor’s approval before a judge will allow it. It is rarely a good idea to speak with a prosecutor directly. You should have an attorney do this for any number of reasons, which need not be addressed here. In fact, you do not have to have an attorney in any case, but you have a right to one and you should exercise that right.

Motion to Modify Conditions of Release May be Necessary

If the changes have not been made at the first appearance or arraignment, then your attorney must file a motion to modify the conditions of release. Again, these changes require the judge’s approval, which generally requires a  good reason for such a change.

Some changes are a little easier to change than others. The most common needed changes are the travel restrictions. Conditions of release will often prohibit travel outside the county. This condition will often severely interfere with employment and other family duties. More often than not, if your attorney can show travel is necessary to employment or other family duties, the change will be allowed.

The judge can limit travel outside the county for those specific purposes.  Keep in mind that the modification applies only to those exceptions stated in the modification of conditions of release. It is therefore important to address all possible situations where travel will be necessary if the judge does set limits on the waiver of the travel conditions.

The Alleged Victim May Have to Appear in Court for a Change of Conditions

There are cases where neither the judge nor the prosecutor will agree, absent agreement by the alleged victim. This is the case in domestic violence cases where the parties would like to lift the no-contact order and the prohibition against returning to the scene of the incident (usually the home).

In order for the prosecutor or the judge to approve of such a change, the alleged victim must show up in court. The judge and the prosecutor will question the alleged victim on the safety of such a change. The alleged victim must ask for the change and state that such a change will not result in any danger to household members.

The alleged victim must often give a good reason for the change. The reasons generally include financial hardship and issues regarding care of the children. The judge can refuse the modification. This is not unusual particularly where there is a history of domestic violence in the home.

Some Conditions Cannot be Changed

Finally, there are a number of conditions that will not be waived such as the prohibition on the use of drugs and alcohol, violations of law, and with very few exceptions, the possession of firearms. The restriction on firearms may be waived when the firearm is necessary for employment. However, there is no guarantee that the judge will allow it even then. Whether the judge will grant it will depend on the judge and again, the nature and severity of your charges.

Many times, the conditions of release will be set before you ever meet with an attorney. It is extremely important that you let the attorney know of the need for a modification. Again, it is best to do this at the first appearance or arraignment. If it is not done then, it will require the filing of a motion. A hearing on such a motion may be many weeks after the motion is filed. Until the motion is granted and the judge enters an order, all conditions are fully effective and violation can mean immediate jail time.

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