Do I need an attorney?

One of my responsibilities as a magistrate judge is to conduct what are called felony-first appearances and arraignments in criminal cases. Both are initial hearings when individuals are read their rights and then advised of the charges filed against them. This process is similar in the metropolitan court in Albuquerque and in municipal courts throughout the state.

One of the rights that individuals are advised of is their right to be represented by an attorney at all stages of a criminal case. This right is provided for in both the Constitution of the United States and the Constitution of the state of New Mexico.

Criminal cases include felony crimes, misdemeanor crimes, traffic offenses and county or municipal ordinance violations. Sentences for these offenses range from incarceration in a state prison, a county detention facility, fines or probation.

Probationary sentences may be supervised or unsupervised and may include requirements, such as restitution, community service, treatment, drug testing or completion of training to prevent reoccurrence of the crime committed.

Individuals who are charged with offenses that include a potential jail sentence are entitled to an attorney at the state’s or municipality’s expense if they cannot afford one, commonly known as a public defender or a city defender.

Often at a defendant’s initial hearing, I am asked, “Do I need a lawyer?”

The answer to that question would be legal advice, and neither judges nor court staff can answer that question for you.

In cases where the charges do not have a potential jail sentence, such as a speeding ticket, individuals are not entitled to a public defender but may hire their own attorney. Consideration for doing so may involve concerns about your automobile insurance rates or employment factors if you drive for a living.

In traffic matters, it has been my experience that most individuals charged with traffic violations do not hire an attorney. However, in these same traffic cases, individuals with a Commercial Driver’s License, (CDL,) often hire an attorney. But ‘most do not’ or ‘often do’ are not the criteria by which you should make your decision; rather, your unique situation should drive your personal decision.

In cases where jail is a potential sentence, people can apply for a public defender or hire their own attorney. Individuals in these cases can also waive an attorney or give up their right to an attorney.

Waiving an attorney where jail is a potential sentence is a serious decision, and a defendant can only waive an attorney after they complete a waiver of counsel that is executed under the supervision and with the approval of a judge.

When waiving an attorney, a judge reminds the defendant of the charges filed against them and the potential range of sentences, to include any mandatory sentences. For example, reckless driving has a maximum sentence of 90 days in jail and/or a $300 fine but has a mandatory sentence of five days in jail or a $25 fine.

Defendants are reminded of their constitutional right to be represented by an attorney at all stages of a criminal case and their right to be appointed an attorney if they cannot afford one.

Defendants are explained the value of an attorney, such as evaluating the charges and formulating a defense strategy. Defendants are also explained the role of the prosecution, who usually is an attorney but may be a law enforcement officer, particularly in traffic cases.

Defendants are informed they can appeal their case if they are found guilty at a trial but they cannot complain on appeal about the effectiveness of their own representation.

Defendants are reminded that if they choose to represent themselves, they must follow all the court rules that an attorney must follow and their lack of knowledge of these rules will not prevent the court from enforcing them. As example, this would include the introduction of evidence or witnesses.

After hearing these instructions, it is OK to change your mind about waiving an attorney and, under certain circumstances, an earlier waiver can be withdrawn.

While the waiver of an attorney is not required for non-jailable offenses such as traffic tickets, the instructions outlined above are worth consideration.

If you have a civil case, you also have the right to be represented by an attorney, but you are not entitled to a public defender in a civil case. Where authorized by law, you can ask for attorney fees as part of a civil case, but the general rule is each party is responsible for their own attorney expenses.

The state Bar of New Mexico website, sbnm.org, under the “For Public” tab, has links to an attorney search feature called “Find an Attorney,” a list of statewide legal fairs or clinics, legal aid resources for the elderly, and a modest means hotline that provides assistance on civil legal matters.

Additionally, New Mexico Court’s website, nmcourts.gov, under the “Self-Representation” tab, has links to several available resources.

Although I have not answered the question, “Do I need an attorney?” I hope I have given you some important considerations and a place to start should you choose to represent yourself.

(Magistrate Judge John R. Chavez is the magistrate in Belen. He is a native of Valencia County and is a retired U.S. Army colonel.)