The New Mexico Supreme Court released an opinion earlier this week in State v. Aslin. The opinion clarifies Rule 5-805, which allows districts to set local rules establishing technical violation programs (“TVPs”). TVPs allow probationers to agree to automatic sanctions for certain technical violations of probation. At issue was the definition of “technical violation.” The Court, finding the rule to be ambiguous, clarified that the only limitation imposed by Rule 5-805 on how a district’s TVP defines a technical violation is that it may not include new criminal charges.
This case involved a defendant who had been convicted of trafficking meth in the first judicial district. The defendant was sentenced to nine years incarceration, all of which was suspended with three years of supervised probation.
The first judicial district had a TVP in place. The TVP imposed automatic sanctions of increasingly longer jail time for successive technical violations of probation. The rule defined technical violations to include a number of specific items, including testing positive for drugs or alcohol or failing to complete a required treatment program.
Three months sentencing, the defendant violated his probation by testing positive for alcohol use. As a result the defendant was placed in the TVP. He quickly committed two technical violations, testing positive for meth, serving three and then seven days in jail for those violations. His probation officer then instructed him to complete the “Community Corrections Program.”
Not long thereafter, he was arrested on new criminal charges. The State filed a petition to revoke probation on two grounds: the new charges, and his failure to enter a drug treatment program as ordered. The court found that there was not sufficient evidence to support the new charges; however, it found that the defendant had violated his probation by not enrolling in the treatment program as he had been ordered to do.
This is where things get interesting. The court found that the failure to enroll in the program was not merely a technical violation. The court therefore revoked probation and ordered the defendant to serve his remaining sentence of over two and one half years in jail.
On appeal, the defendant argued, among other things, that the district court had erred in concluding that the violation was not a technical violation under the TVP. This was an important issue: a third technical violation would have resulted in up to 14 days in jail instead of over two years.
The court of appeals addressed this issue somewhat differently than it was presented. Rather than simply applying the TVP’s definition of “technical violation,” the court noted that the TVP conflicted with Rule 5-805’s definition, which defined technical violations as “any violation that does not involve new criminal charges.” Applying the language of the supreme court rule, the court determined that the failure to enter into and complete the treatment program was a technical violation because it did not involve new criminal charges.
The supreme court granted certiorari to decide whether the court of appeals had misinterpreted Rule 5-805. It began by acknowledging that the rule was ambiguous. However, applying the rules of statutory construction, which are also used to construe the rules, the Court looked to the rule as a whole to determine the correct meaning. The rule allows districts to define for itself a technical violation, subject to approval by the supreme court. The Court reasoned that this meant that the language the court of appeals had construed as the definition of a technical violation was actually the only limitation on how districts could define technical violations. More persuasively, the Court observes that under the court of appeals’ reading, any violation that did not result in new charges would be a technical violation–an absurd result.
The Court’s decision is consistent with the policy goals behind probation in general. The laws governing probation give the courts broad power to ensure that the goal of rehabilitation is achieved. As the Court observed, allowing districts to define technical violations as they see fit keeps that discretion in the hands of the district courts.
Having construed the rule, the Court remanded to the court of appeals to apply the definition of technical violation from the TVP.
If you read this as a simple case of construing a rule, it is not a terribly surprising result. But I think that misses some of the nuance. After all, the Court wrote this rule. It has the power to re-write it if it is ambiguous. It should not need to jump through the hoops of statutory construction to tell us what it own rule means.
To be clear, there is nothing wrong with the result the Court reaches in this opinion. But the path it takes to get there seems odd. Statutory construction is a mechanism for trying to discern the legislature’s intent in passing laws. It is useful because often, especially in New Mexico, there is little evidence of their intent to go on. The Court cannot simply ask the legislature what it wanted. Statutory construction makes sense in the context of a court construing legislative intent. But it seems artificial when the Court uses it to construe its own reasons for approving an ambiguous rule.
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