 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 28,507

10 ROBERT HENRY,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Don Maddox, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Ralph E. Trujillo, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Karl Erich Martell, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 VANZI, Judge.
 1        Robert Henry (Defendant) appeals his conviction in district court on charges of

 2 aggravated driving while under the influence of alcohol (DUI). Defendant makes two

 3 arguments on appeal: (1) the district court erred when it denied Defendant’s motion

 4 to dismiss, holding that the State did not violate the 182-day limit imposed by Rule

 5 6-506(B) NMRA (182-day rule) when the State dismissed the charges against

 6 Defendant in magistrate court (nolle prosequi) on the last day of the 182-day period

 7 and then subsequently refiled the same charges in district court seven days after the

 8 period had expired; and (2) the district court erred when it admitted Defendant’s

 9 breath alcohol test into evidence.

10        We hold that the State violated the 182-day rule; therefore, we reverse the

11 district court’s denial of Defendant’s motion to dismiss. Because our reversal results

12 in a dismissal of the charges against Defendant, we do not reach Defendant’s second

13 argument.

14 BACKGROUND

15        The following facts are undisputed by the parties. Defendant was arrested on

16 February 5, 2007, for driving while under the influence of alcohol. Defendant was

17 arraigned on those charges in Lovington Magistrate Court on February 6, 2007. The

18 trial in magistrate court was originally set for June 19, 2007; however, the defense

19 requested a continuance, and trial was rescheduled for August 7, 2007, the day the

20 182-day period allotted for trial under Rule 6-506(B) expired. On August 6, 2007,
 1 one day before the scheduled trial and one day before the expiration of the 182-day

 2 period, the State dismissed the charges against Defendant in magistrate court. On

 3 August 13, 2007, the State refiled the same charges against Defendant in district court.

 4        Defendant moved to dismiss the new charges claiming that the State had

 5 violated the 182-day rule by not bringing Defendant to trial within the period required

 6 under the rule. The State argued that it had dismissed and refiled because Defendant

 7 had refused to waive his right to a jury trial in magistrate court, and therefore, the

 8 dismissal and subsequent refiling were necessary in the interests of “judicial economy

 9 and conservation of time and resources.” The district court found that, “given the

10 special circumstances” here, the State had met its burden of showing an appropriate

11 purpose for dismissing and refiling, and therefore, a new six-month period would be

12 allowed, beginning from the time the State filed the new charges in district court. The

13 court did not state findings of fact regarding the special circumstances.

14        Defendant pled guilty to the DUI charges on December 18, 2007, reserving the

15 right to appeal the district court’s denial of his motion to dismiss for violation of the

16 182-day rule and the court’s denial of his motion to suppress breath alcohol results.

17 DISCUSSION

18        We review the district court’s application of Rule 6-506 de novo. State v.

19 Carreon, 2006-NMCA-145, ¶ 5, 140 N.M. 779, 149 P.3d 95.



                                               2
 1          Defendant argues on appeal that the State violated Rule 6-506(B) when it

 2 dismissed the magistrate court charges against Defendant one day before the

 3 expiration of the 182-day rule and subsequently refiled the same charges in district

 4 court one week after the 182-day rule had expired. For the reasons that follow, we

 5 agree.

 6          We begin our analysis with Rule 6-506, which controls the time for

 7 commencement of trials. Rule 6-506(B) requires a defendant’s trial to commence

 8 within 182 days of one of the triggering events listed in the rule. The triggering event

 9 applicable to the current case is the date of arraignment of Defendant in magistrate

10 court. Rule 6-506(B)(1). The rule specifies that, if the trial is not commenced within

11 the 182-day period, the charges may be dismissed with prejudice. Rule 6-506(E).

12          The committee commentary to Rule 6-506 clarifies the 182-day rule by stating

13 that in cases where the state dismisses charges and subsequently refiles the same

14 charges, the trial on the refiled charges must commence within the 182-day period

15 associated with the original charges “unless, pursuant to Paragraph D of Rule 6-506,

16 the court finds the refiled complaint should not be treated as a continuation of the

17 same case.” Rule 6-506, committee commentary.

18          Rule 6-506A NMRA further clarifies the interplay between the 182-day rule

19 and voluntary dismissal and refiling of charges in magistrate courts. Rule 6-506A(D)

20 states that, if charges are dismissed and later refiled, the case shall be treated as a

                                              3
 1 continuation of the same case, and “the trial on the refiled charges shall be

 2 commenced within the unexpired time for trial pursuant to Rule 6-506 . . . unless the

 3 court, after notice and a hearing, finds the refiled complaint should not be treated as

 4 a continuation of the same case.” Rule 6-506A(D).

 5        Read together, these rules provide that, in magistrate court, the default rule is

 6 that there is a single, 182-day period during which a trial must be initiated, regardless

 7 of the number of times the charges are dismissed and refiled. The 182-day period for

 8 trial is begun on the date of the triggering event for the original charges. Absent an

 9 extension, dismissal is required if the trial is not begun within the 182-day period.

10 These rules do not, however, specifically discuss the consequences of failing to

11 comply with the 182-day rule where the charges are dismissed in magistrate court and

12 refiled in district court. This Court recently reviewed and interpreted Rules 6-506 and

13 6-506A in the mixed magistrate/district court context and determined that the same

14 default rule applies in that context.

15        In State v. Yates, 2008-NMCA-129, ¶ 5, 144 N.M. 859, 192 P.3d 1236, cert.

16 granted, State v. Savedra, 2008-NMCERT-009, 145 N.M. 258, 196 P.3d 489, we

17 determined that “[s]imilarly-situated defendants ought to be afforded similar rights[;]”

18 therefore, all defendants, whose prosecutions are initiated in magistrate court should

19 receive the benefit of Rule 6-506A(D), “regardless of whether the [s]tate refiles the

20 charges in magistrate court or district court.” This interpretation establishes the

                                               4
 1 default rule that, while the state is free to dismiss criminal charges in magistrate court

 2 and refile the same charges in district court, the trial in district court must commence

 3 within the 182-day period established by the triggering event in magistrate court

 4 unless the state overcomes this presumption by an appropriate showing, as permitted

 5 by Rule 6-506A(D). Yates, 2008-NMCA-129, ¶ 6.

 6        In the present case, the justification the State—more specifically, the Fifth

 7 Judicial District Attorney’s office—offers for its actions is that in order to promote

 8 judicial economy and conservation of time and resources in prosecuting aggravated

 9 DUIs, it has a policy of avoiding duplicate jury trials, i.e., a jury trial in magistrate

10 court and another in district court. In keeping with this policy, when Defendant

11 refused to waive his right to a jury trial in magistrate court, the State dropped the

12 charges in magistrate court and refiled the same charges in district court. The State

13 argues that, based on these facts, the State made an appropriate showing that justified

14 the district court finding that the refiled complaint should not be treated as a

15 continuation of the original case and that the period for trial should be restarted in

16 district court. We are not persuaded.

17        This Court has consistently held that the mere existence of a prosecutorial

18 policy is not adequate to justify the restarting of the period for trial upon the dismissal

19 and refiling of charges. See Carreon, 2006-NMCA-145, ¶ 11 (holding that the

20 existence of a prosecutorial policy of dismissing every magistrate court case that does

                                                5
 1 not settle before the 182-day rule was insufficient to meet the state’s burden of

 2 showing that the dismissal was not done to circumvent the rule); Yates, 2008-NMCA-

 3 129, ¶ 11 (stating that “refiling of charges in district court pursuant to the established

 4 policy of prosecutors in the Fifth Judicial District did not restart the running of the

 5 respective periods within which the [s]tate was required to bring [the d]efendants to

 6 trial”).

 7        The State attempts to distinguish its policy regarding dismissals in magistrate

 8 court from the policies at issue in Carreon and Yates. The State points out that, unlike

 9 the prosecutors in Carreon and Yates who dismissed all magistrate court cases that did

10 not settle prior to the 182-day rule, in this case the State was willing to go to trial in

11 magistrate court and only planned to dismiss and refile in district court if Defendant

12 opted for a jury trial rather than a bench trial. We do not find this distinction to be

13 persuasive.

14        In all three instances, Carreon, Yates, and the present case, the State is

15 implementing a prosecutorial policy of dismissing charges in magistrate court and

16 refiling in district court based on what the defendant does or does not do in magistrate

17 court. As we noted in Carreon and Yates, the state is free to implement policies

18 requiring dismissal and refiling of charges; however, these policies alone are not

19 adequate justification for restarting the time period within which the trial must be

20 held. To hold otherwise would permit the state to circumvent the 182-day rule at will

                                               6
 1 in every case filed in magistrate court simply by dismissing before the deadline runs

 2 and filing the exact same charge in district court with no 182-day rule consequences.

 3 Carreon, 2006-NMCA-145, ¶ 12.

 4        We recognize that the State has a legitimate interest in avoiding the burdens of

 5 successive trials in magistrate court and district court; however, as we noted in Yates,

 6 the problem of sequential, duplicative trials seems to be one of the State’s own

 7 making. Id. ¶ 8. There are a number of alternatives available to the State that would

 8 avoid this problem and still permit the State to operate within the confines of Rules

 9 6-506 and 6-506A. Yates, 2008-NMCA-129, ¶ 8. Specifically, the State could

10 monitor misdemeanor DUI cases filed in magistrate court to ensure that they are

11 dismissed and refiled in district court with sufficient time remaining for the case to be

12 brought to trial within 182 days of the triggering event in magistrate court. Id.

13 Alternatively, the State could initiate misdemeanor DUI prosecutions in district court,

14 rather than magistrate court. Id.

15        In summary, the State in this case did not provide justification for restarting the

16 time period allowed for commencement of trial.

17 CONCLUSION

18        Based on the foregoing, we reverse the district court and instruct the court to

19 enter an order dismissing the charges against Defendant.

20        IT IS SO ORDERED.

                                               7
1                                  _________________________________
2                                  LINDA M. VANZI, Judge

3 WE CONCUR:



4 ______________________________
5 JAMES J. WECHSLER, Judge



6 ______________________________
7 CELIA FOY CASTILLO, Judge




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