Pre-Prosecution Diversion Program

Eligibility Requirements

The Offender must meet the minimum eligibility criteria established by statute, shall have no prior felony convictions for a violent crime, and shall submit to “any additional criteria set by the district attorney.” N.M. Stat. Ann. § 31-16A-4.

The current charge must be for a nonviolent felony offense. 

Persons charged with arson or sex offense will generally not be considered for PPD.  Domestic Violence, First DWI offenses, and residential burglary charges will be reviewed case by case. 

The offender must readily admit guilt and voluntarily submit a statement of admission. The statement of admission must provide adequate information to establish every element of each offense charged.

31-16A-6. Waivers; suspension of criminal proceedings.

1. A defendant must secure or be appointed defense counsel to be present at a pre-prosecution diversion screening interview prior to applying for acceptance into a pre-prosecution diversion program, and, upon applying, the defendant shall waive his constitutional right to a preliminary hearing as set forth in Rule 15(d) of the Rules of Criminal Procedure for the Magistrate Courts [Rule 6-202D NMRA].
2. If a defendant is certified eligible by the district attorney and by the pre-prosecution diversion program, the defendant shall also waive his constitutional right to a speedy trial and any rights as provided by Rule 37(b) of the Rules of Criminal Procedure for the District Court [Courts] [Rule 5-604B NMRA]. Upon entry of this waiver, the district attorney shall divert the defendant into the pre-prosecution diversion program and criminal proceedings against the defendant shall be suspended. Participating defendants shall also waive any confidentiality provided by the Arrest Record Information Act [29-10-1 NMSA 1978] to permit scrutiny of records; provided that the publication of the personal information, except the name of the defendant, gathered while a defendant is participating in a program shall not be a public record.

History: Laws 1981, ch. 33, § 6.

31-16A-7. Program participation; reasonable conditions; termination.

1. A defendant may be diverted to a pre-prosecution diversion program for no less than six months and no longer than two years.  A district attorney may extend the diversion period for a defendant as a disciplinary measure or to allow adequate time for restitution; provided that the extension coupled with the original period does not exceed two years. 
2. A district attorney may require as a program requirement that a defendant agree to such reasonable conditions as the district attorney deems necessary to ensure that the defendant will observe the laws of the United States and the various states and the ordinances of any municipality.
3. If a defendant does not comply with the terms, conditions and requirements of a pre-prosecution diversion program, the defendant's participation in the program may be terminated, and the district attorney may proceed with the suspended criminal prosecution of the defendant.
4. If the participation of a defendant in a pre-prosecution diversion program is terminated, the district attorney shall state in writing the specific reasons for the termination, which reasons shall be available for review by the defendant and the defendant's counsel.

History: Laws 1981, ch. 33, § 7; 1984, ch. 110, § 5; 2019, ch. 211, § 6.

31-16A-8. Record keeping.

1. Each district attorney shall maintain an accurate record of each individual accepted into a pre-prosecution diversion program for the purpose of complying with the requirements of Paragraph (4) of Subsection A of Section 4 [31-16A-4A(4) NMSA 1978] of the Pre-prosecution Diversion Act.
2. Each district attorney shall be required to forward to the state police accurate records of acceptance, successful termination or unsuccessful termination of each individual accepted into the program. The state police shall be required to maintain accurate records of all information forwarded to them by each respective district attorney concerning acceptance, successful termination or unsuccessful termination of all pre-prosecution diversion programs.