Peremptory Recusal of the Assigned Judge

When you are charged with a DWI, your case is assigned to a judge.  By law, you have a right to one peremptory recusal of the first assigned judge.  This means you can ask that your case be reassigned to another judge.

There are a number of considerations in deciding whether to recuse a judge.  As mentioned, you get only one and you only have just 10 days from the date of your arraignment to make this very important decision.

Loose Deadlines

There are a number of reasons you might want to recuse the first judge.  Different judges have different levels of tolerance for the District Attorney missing deadlines.  Similarly, different judges have different levels of tolerance on the failure to police officers to cooperate in the DWI investigation.

For instance, there are procedural deadlines in all DWI cases.  These deal with the state providing discovery, making witnesses available for interview, the officers showing up for their own interviews, the provision of exhibits and witness list and so on.

These deadlines arguably offer the defendant the greatest protections.  In fact, violation of these deadlines is the most common basis for dismissal as they well should be since without these things, it is impossible for your attorney to adequately represent you.

The problem that arises with some judges is that the enforcement of the many of the deadlines is somewhat discretionary.  And some judges will give every benefit of the doubt to the district attorney and the police officers.  This can if not checked allow prosecutor and police officers to obstruct your attorney’s defense on the DWI charges.

Trial Issues

In addition the above considerations, some judges are much better at trial.  There are countless issues that come up during trial on which a judge must rule.  These are very complex and this is only a cursory overview of the overarching issues.

If your case is likely going to trial, then you want a judge that can make intelligent, fair, and impartial decisions on all the issues and challenges that will come up during trial.

In first time DWI, you are not entitled to jury as a rule unless there are other charges as well making the case jury eligible.  As such, the vast majority of first DWI cases are tried only before the judge.  You want a judge that is fair and balanced on all the issues as well as the ultimate ruling on the facts.

In jury trials, though the jury makes the ultimate decision, the cumulative effect of the many rulings during the course of the trial by the judge on evidence, witnesses, objections and even jury selection can sway the jury one way or the other.

In short, if one did not already know this, judges are important for trials and some are better at it than others.

Sentencing and Probation

The fact is that some judges are harsher than others on criminal sentencing.  Likewise, some judges are much harsher on probation with no tolerance for even minor technical violations of probation

This is something to keep in mind in many cases particularly in case of repeat DWI offenders.

Out of Frying Pan and Into the Fire

This phrase is particularly relevant to recusal. Some DWI offenders may have heard bad things about a judge.  Many times, clients come in insisting that we recuse their judge right away based upon what they have heard.  However, as often as not, after thorough consideration, the decision is made not to recuse the judge.

The reason for this is that in Albuquerque Metropolitan Court where we have the bulk of our DWI cases, there are 16 judges.  When you recuse one, you get reassigned to another.  You cannot choose the other judge.  And the newly assigned judge may be worse for your particular circumstances than the first.

So it important to weigh the chances of one of these other judges being assigned versus the downside of the first assigned judge.   In many cases, unless you have drawn a particularly disadvantageous judge for your particular circumstances, the possible gains are outweighed by the risks of reassignment.

Do Not Delay — You Have 10 Days from Arraignment 

The considerations above are only a broad framework.  There are likely other considerations that can be addressed only after meeting with an attorney who has had a chance to fully review your situation.   All these considerations must be weighed within a fairly tight window following the arraignment.

In addition, there are many other deadlines running on you DWI.  Missing any of these deadlines can have highly adverse consequences on your rights and the defense of your DWI charges.

Aditional Reading on New Mexico DWI Issues from our DWI Blog

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