The purpose of the Pre-Prosecution Diversion Act [31-16A-8 NMSA 1978] is to remove those persons from the criminal justice system who are the most amenable to rehabilitation and least likely to commit future offenses, to provide those persons with services designed to assist them in avoiding future criminal activity, to conserve community and criminal justice resources, to provide standard guidelines and to evaluate Pre-Prosecution Programs.
A defendant must meet the following minimum criteria to be eligible for a Pre-Prosecution Program.
- The defendant must have no prior felony convictions for a violent crime and no prior felony convictions for any crime for the previous ten years;
- The crime alleged to have been committed by the defendant is non-violent in nature, with the exception of domestic disputes not involving a minor;
- If the defendant was on probation previously, his probation must not have been revoked or unsatisfactorily discharged;
- The defendant has not been admitted into a similar program for the previous ten years;
- The defendant is willing to participate in the program and submit to all program requirements;
- The crime alleged to have been committed by the defendant does not involve substantial sale of possession of controlled substances; and
- A person meeting all of the above criteria and any additional criteria established by the District Attorney may be entered into the Pre-Prosecution Diversion Program. The District Attorney may elect to not divert a person to the Pre-Prosecution Diversion Program even though that person meets the minimum criteria herein set forth. A decision by the District Attorney to not divert to the Pre-Prosecution Diversion Program is not subject to appeal and may not be raised as a defense to any prosecution or habitual offender proceeding.
- THE DEFENDANT MUST BE REPRESENTED BY AN ATTORNEY.
- The current charge against the defendant must be a nonviolent felony offense and the circumstances of the crime must be nonviolent in nature.
- Defendants charged with the following crimes are not eligible to apply to the PPD Program without prosecutor approval:
- Abandonment of a Dependent
- Breaking and Entering of a Dwelling House
- Criminal Sexual Penetration in the 4th degree (Exceptional situations may be considered)
- Distribution of a Controlled Substance or Dangerous Drugs
- Fraudulently Obtaining Controlled Substances
- Multiple criminal charges occurring at different times and in different locations
- Substantial Possession of a Controlled Substance or Dangerous Drugs
- Substantial Possession with Intent to Distribute a Controlled Substance or Dangerous Drugs
- Trafficking a Controlled Substance or Dangerous Drugs
- The Crime alleged to have been committed by the defendant is violent in nature, with the exception of domestic disputes not involving a minor
- Defendants having the following criminal background are not eligible to apply to the PPD Program without Prosecutor approval:
- Prior felony conviction
- Prior juvenile adjudication for a felony
- Unsatisfactory discharge from any previous probation
- Prior juvenile commitment to a boy’s or girl’s school or similar youth facility
- Previous participation in a first offenders diversion program
- Prior DWI offenses
The investigating law enforcement agency must be informed and their concerns taken into consideration to the defendant's participation in the PPD Program.
- The victim(s) must agree to the defendant's participation in the PPD Program.
- The defendant must agree to submit to all requirements of the PPD Program.
- The defendant must exhibit characteristics indicating that defendant would be an appropriate candidate for participation in the PPD Program