Don't get busted in Rio Rancho over a long holiday weekend or you'll wind up sitting in jail with no hope of seeing a judge, or of getting a bond hearing until the judge feels like showing up for work.
At least that has been the case for 40-year-old Raaj Mohan of Albuquerque, who was arrested on a DWI charge early on the morning of Dec. 23 and booked into the Sandoval County Detention Center.
As of noon on Tuesday (Dec. 26), Mohan was still in jail and still hadn't had a bond hearing as required by New Mexico Supreme Court rules. Under those rules, people arrested and booked into jail on criminal charges are to have a probable cause determination by a judge within 48 hours of their arrest, and a bond hearing before a judge within 72 hours.
But Mohan hasn't had a bond hearing and won't until today (Wednesday) because Rio Rancho Municipal Court Judge G. Robert Cook hasn't been in to work [the Christmas holiday], and the municipal court system there apparently has no one to sit in for Cook when he's not at work.
By state Supreme Court rules, Mohan should have had his conditions of release set by 3:16 a.m. Tuesday, which was 72 hours after he was booked into the Sandoval County jail.
But Judge Cook told ABQReport that Mohan couldn't get a hearing before Wednesday because the courts were closed for the holiday weekend.
One of Mohan's friends said he and others had tried to get lawyers and bail bondsmen to get Mohan out of jail since he was booked into the jail at 3:16 a.m. Saturday, all to no success because the judge and nobody else has been around to have a face-to-face hearing, which is also required by sate rules.
“He [Mohan] is, in effect, serving time for something he has not been convicted of. He is literally in limbo,” Mohan's friend, Robert Devine, said of the situation. “I'm wondering if this guy [Judge Cook] is competent or if he's an asshole.”
State Supreme Court rules are clear on the rights of criminal defendants who are awaiting bond hearings. Judges must make a determination of whether there is probable cause to hold a person within 48 hours of the person being arrested, said Arthur Pepin, director of the Administrative Office of the Courts for New Mexico. And, defendants are entitled to a hearing to set their conditions of release within 72 hours of being detained, Pepin added.
“If he [Mohan] was arrested and booked Saturday morning, the 72 hours would have run Tuesday morning,” Pepin added.
But Judge Cook said in a phone interview that the Supreme Court's new rules on bond procedures require that people charged with misdemeanors like DWI, battery and negligent use of a firearm have to see a judge before their bonds can be set. And because the courts were closed, Mohan had to sit in jail.
And Cook said that under the state's old bond rules, which had bond schedules – set dollar amounts for certain categories of crimes – Mohan would have been able to get out of jail within hours of being booked. But the Supreme Court has held that those bond schedules were illegal and are no longer available.
“I would love to go back to a bond schedules because because they [Mohan] could have called a bond person and gotten out,” Cook said. He added that because of the holiday weekend, and his office's four-day, 10-hour work schedule, the court was closed an unavailable to give Mohan and others in similar situation in the Sandoval County lockup bond hearings.
But other courts in the area had judges go in on the weekend to make sure that all people in jail got their bond hearings as required by the Supreme Court's rules.
Sandoval County Magistrate Judge Richard Zanotti went to work on Sunday to do probable cause determinations for people in the jail, his office said.
And the city of Santa Fe's Municipal Court judge was also in on Sunday to deal with cases of people in jail, said court administrator John Singh.
But there is disagreement over what the Supreme Court's new rules mean when it comes to giving inmates timely bond hearings. Singh said the 72-hour time frame only applies to days on which the court is open, or business days, and not weekends or holidays when the court is closed. By that interpretation, 72 hours doesn't mean 72 hours and that bond hearings can be delayed to account for days when courts are closed.
But Pepin said that's not true.
“Saturdays Sundays and holidays count as days for the purposes of this rule,” Pepin said.
Here's what the Supreme Court's rules for Municipal Courts say about bond hearings:
“The court shall conduct a hearing under this rule and issue an order setting conditions of release as soon as practicable, but in no event later than (a) if the defendant remains in custody three (3) days after the date of arrest if the defendant is being held in the local detention center, or five (5) days after the date of arrest if the defendant is not being held in the local detention center; or (b) arraignment, if the defendant is not in custody.”
The rule says nothing about business days or weekends or holidays not counting.
Here's what the Municipal Court rules say about giving defendant's a probable cause determination, which is required within 48 hours of an arrest:
“The probable cause determination shall be made by a municipal court judge promptly, but in any event within forty-eight (48) hours after custody commences and no later than the first appearance of the defendant, whichever occurs earlier. The court may not extend the time for making a probable cause determination beyond forty-eight (48) hours. Saturdays, Sundays, and legal holidays shall be included in the forty-eight (48) hour computation, notwithstanding Rule 8-104(A) NMRA.”
There was one way that Mohan could have gotten out of jail earlier; he or his attorney could have asked a state District Court judge in Sandoval County to release him. Attorney Lisa Torraco said she tried to get that done, but was told on Tuesday that no Sandoval County District Court judges were in the office and that there were no judges on call to hear such requests.
Retired New Mexico Court of Appeals Judge Rod Kennedy said that Mohan's civil rights might have been violated because he didn't get a bond hearing within the 72 hours as required by state rules.
“If we assume that no probable cause hearing was done and a bond hearing was not held within 72 hours that is a violation of a person's civil rights and that is according to the U.S. Supreme Court,” Kennedy said. “It's not a matter of convenience, it's a matter of the Constitution”