TABLE OF CONTENTS

1. Caption
2. Introduction and Procedural History
3. Response to Allegations
4. Constitutional Rights
5. Standard of Proof
6. Technical vs. Non-Technical Violation Defense
7. Mitigating Factors
8. Alternative Sanctions Proposed
9. Evidence and Witness List
10. Conclusion and Prayer for Relief
11. Certificate of Service

Caption

STATE OF NEW MEXICO
COUNTY OF [________________________________]
[________________________________] JUDICIAL DISTRICT COURT

Introduction and Procedural History

COMES NOW Defendant, [________________________________], by and through [his/her] attorney, [________________________________], Esq., NM Bar No. [________], and hereby files this Response to the Alleged Probation Violation.

1. On [__/__/____], the Defendant was convicted of / pleaded guilty to [________________________________] in violation of NMSA § [________________________________], a [____] degree felony / misdemeanor.

2. On [__/__/____], the Court placed Defendant on probation for a period of [____] months/years subject to terms and conditions pursuant to NMSA § 31-20-5 and § 31-20-6.

3. On [__/__/____], a Report of Probation Violation / Notice to Appear was filed alleging:

a. [________________________________]

b. [________________________________]

c. [________________________________]

4. The Defendant was arrested on [__/__/____] / received Notice to Appear on [__/__/____].

Response to Allegations

A. Classification of Alleged Violations

☐ Technical Violation(s): Allegation(s) [____] are technical violations of probation conditions.

☐ Non-Technical Violation(s): Allegation(s) [____] allege new criminal conduct or other non-technical violations.

B. Specific Responses

Allegation 1: [________________________________]

☐ Denied. The Defendant denies this allegation. [________________________________]

☐ Admitted with Explanation. The Defendant admits the factual basis but offers the following explanation: [________________________________]

☐ Admitted. The Defendant admits this allegation.

Allegation 2: [________________________________]

☐ Denied. [________________________________]

☐ Admitted with Explanation. [________________________________]

☐ Admitted. The Defendant admits this allegation.

Constitutional Rights

The Defendant asserts the following constitutional and statutory rights:

1. Right to Written Notice. The Defendant is entitled to written notice of the claimed violations. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

2. Right to Hearing. The Defendant is entitled to a hearing before the Court, which may be informal, under NMSA § 31-21-15.

3. Right to Counsel. The Defendant is entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4. Right to Confront and Cross-Examine Witnesses. The Defendant has the right to confront and cross-examine adverse witnesses. Morrissey, 408 U.S. at 489.

5. Right to Present Evidence. The Defendant has the right to be heard and to present witnesses and documentary evidence.

6. Right Against Self-Incrimination. The Defendant retains the privilege against self-incrimination, particularly where a new criminal charge is pending.

Standard of Proof

Under NMSA § 31-21-15, the degree of proof required is that the evidence establishes a violation with reasonable certainty to satisfy the conscience of the court. This standard is less than beyond a reasonable doubt but requires more than mere suspicion.

The Defendant submits the State cannot meet this standard as to the denied allegations because:

[________________________________]

Technical vs. Non-Technical Violation Defense

The Defendant asserts:

☐ The alleged violation(s) are technical in nature and should be addressed through graduated sanctions and modified conditions rather than revocation.

☐ The Probation and Parole Department has not adequately attempted intermediate sanctions before seeking revocation.

☐ The alleged conduct does not rise to the level of a non-technical violation warranting revocation.

☐ If classified as non-technical, the Defendant asserts: [________________________________].

Mitigating Factors

The Court should consider the following mitigating factors:

☐ Employment: Defendant is currently employed at [________________________________] since [__/__/____].

☐ Education: Defendant is enrolled in / has completed [________________________________].

☐ Treatment: Defendant is participating in [________________________________] since [__/__/____].

☐ Family: Defendant is the primary caretaker for [________________________________].

☐ Compliance: Defendant has substantially complied with all other conditions, including: [________________________________].

☐ Circumstances: The alleged violation occurred due to: [________________________________].

☐ Health: Defendant has medical/mental health conditions: [________________________________].

☐ Time Served: Defendant has served [____] of [____] months/years of probation without prior violations.

☐ Other: [________________________________]

Alternative Sanctions Proposed

In lieu of full revocation, the Defendant respectfully requests:

☐ Continuation of probation under existing terms and conditions.

☐ New probation with modified conditions under § 31-20-5 or § 31-20-6, specifically: [________________________________].

☐ Extension of probation period by [____] months.

☐ Community service of [____] hours.

☐ Enrollment in treatment program: [________________________________].

☐ Increased supervision/reporting requirements.

☐ Substance abuse testing at increased frequency.

☐ Short-term jail sanction of [____] days with continuation of probation.

☐ Other: [________________________________]

Evidence and Witness List

A. Documentary Evidence

B. Witness List

1. [________________________________] — [relationship/title] — will testify regarding [________________________________].

2. [________________________________] — [relationship/title] — will testify regarding [________________________________].

3. [________________________________] — [relationship/title] — will testify regarding [________________________________].

Conclusion and Prayer for Relief

WHEREFORE, the Defendant respectfully requests that this Court:

☐ Dismiss the Allegation of Probation Violation in its entirety;

☐ Find that the State has failed to establish a violation with reasonable certainty;

☐ Continue probation under existing terms and conditions;

☐ Modify the conditions of probation as proposed above;

☐ Impose alternative sanctions in lieu of revocation;

☐ Grant such other and further relief as the Court deems just and appropriate.

Respectfully submitted,

Date: [__/__/____]

_____________________________________________
[________________________________]
Attorney for Defendant
NM Bar No. [________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of the foregoing RESPONSE TO ALLEGED PROBATION VIOLATION was served upon:

☐ Hand-delivered to:
☐ Electronically filed and served via Odyssey to:
☐ Mailed via U.S. Mail, postage prepaid, to:

[________________________________]
Assistant District Attorney
[________________________________] Judicial District Attorney's Office
[________________________________]
[________________________________]

_____________________________________________
[________________________________]

Sources and References

• NMSA § 31-21-15 — Return of Probation Violator
• NMSA § 31-20-5 — Placing Defendant on Probation
• Morrissey v. Brewer, 408 U.S. 471 (1972)
• Gagnon v. Scarpelli, 411 U.S. 778 (1973)