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State v. Aslin

Supreme Court of New Mexico

December 12, 2019

STATE OF NEW MEXICO, Plaintiff-Petitioner,
v.
JEFFREY ASLIN, Defendant-Respondent.

          ORIGINAL PROCEEDING ON CERTIORARI T. Glenn Ellington, District Judge

          Hector H. Balderas, Attorney General Marko David Hananel, Assistant Attorney General Santa Fe, NM for Petitioner

          Bennett J. Baur, Chief Public Defender Matthew J. Edge, Assistant Appellate Defender Santa Fe, NM for Respondent

          OPINION

          MICHAEL E. VIGIL, JUSTICE

         {¶1} Rule 5-805(C) NMRA allows each judicial district to establish a technical violation program (TVP) by local rules whereby probationers can agree to automatic sanctions for technical violations of probation. In the case of Defendant Jeffrey Aslin, the district court ruled that Defendant's probation violation was not a technical violation under the First Judicial District's temporary TVP, and the court revoked Defendant's probation. On direct appeal the Court of Appeals reversed, holding that the definition of a technical violation in the First Judicial District's temporary TVP conflicted with the definition of a technical violation in Rule 5-805(C). State v. Aslin, 2018-NMCA-043, 421 P.3d 843, cert. granted (S-1-SC-36999, June 25, 2018). On certiorari, the State contends that the Court of Appeals misinterpreted Rule 5-805(C). We agree.

         I. BACKGROUND

         {¶2} Rule 5-805(C) permits a judicial district to establish a TVP by local rule. A TVP is "a program for sanctions for probationers who agree to automatic sanctions for a technical violation of the conditions of probation." Id. However, all local rules proposed for the district courts must receive Supreme Court approval pursuant to Rule 5-102(A)(1) NMRA. When we adopted Rule 5-805(C), we recognized that the approval process could unreasonably delay the ability of a judicial district to establish a TVP, and we authorized each judicial district to establish a temporary TVP under a provisional administrative order, to remain effective until final Supreme Court approval of a judicial district's local rule. Following this procedure, the First Judicial District established its temporary TVP in 2012. The local rule, LR1-306 NMRA, which establishes the permanent TVP in the First Judicial District, was approved for all cases filed in the district courts of the First Judicial District on or after December 31, 2016. Because the temporary TVP was in effect in December 2014 when the district court placed Defendant in the TVP and because the probation violations occurred in 2014 and 2015, LR1-306 does not apply, and the temporary TVP governs. For ease of reference we hereinafter refer to the temporary TVP simply as the TVP.

         {¶3} Under the TVP, a probationer who was in the program and committed a technical violation of probation waived the procedural rights provided for in Rule 5-805 and was subject to a progressive disciplinary scheme. A first violation allowed a sanction of up to three days in jail, a second violation allowed up to seven days in jail, a third violation allowed up to fourteen days in jail, and a fourth violation allowed up to twenty-one days in jail. The TVP in pertinent part defined "technical violations" of a probation agreement as

(1) having a positive urine or breath test or other scientific means of detection for drugs or alcohol;
. . .;
(2) possessing alcohol;
(3) missing a counseling appointment;
(4) missing a community service ...

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