need hearing in New Mexico

2023Once this Court assigns a case to the general calendar “[t]he appellant may raise issues in addition to those raised in the docketing statement or statement of the issues unless the appellee would be prejudiced.” Rule 12-318(A)(1) NMRA; see also State v. Salgado, 1991-NMCA-044 , ¶ 2, 112 N.M. 537 , 817 P.2d 730 (noting this Court’s assignment of a case to the general calendar obviates the need to rule on the motion to amend the docketing statement, because “the docketing statement no longer governs the issues that may be raised on a non-summary calendar”).

2023Once this Court assigns a case to the general calendar “[t]he appellant may raise issues in addition to those raised in the docketing statement or statement of the issues unless the appellee would be prejudiced.” Rule 12-318(A)(1) NMRA; see also State v. Salgado, 1991-NMCA-044 , ¶ 2, 112 N.M. 537 , 817 P.2d 730 (noting this Court’s assignment of a case to the general calendar obviates the need to rule on the motion to amend the docketing statement, because “the docketing statement no longer governs the issues that may be raised on a non-summary calendar”).

2023The Plan’s 11 availability allowed the district court to determine whether § 407 applied based on 12 the Plan itself, obviating the need for a privilege log describing the Plan’s content. 13 See Albuquerque J., 2019-NMCA-012, ¶ 21 (noting that the circumstances of a 14 particular case may determine the means through which a party supports its assertion 15 of privilege).

2023See Albuquerque J., 2019-NMCA-012, ¶ 21 (noting that the circumstances of a particular case may determine the means through which a party supports its assertion of privilege).

2012See Middlebrook v. State, 802 A.2d 268, 275 (Del. 2002) (characterizing the trial court’s failure to rule on the defendant’s motion to suppress for over a year as “inexcusable” and holding the state responsible for the court’s failure to rule on the motion and the nine-and-one-half-month delay resulting from the failure of the court or the state to oppose defense counsel’s vacation plans despite the long period during which charges had been pending).

2012See Middlebrook v. State, 802 A.2d 268, 275 (Del. 2002) (characterizing the trial court’s failure to rule on the defendant’s motion to suppress for over a year as “inexcusable” and holding the state responsible for the court’s failure to rule on the motion and the nine-and-one-half-month delay resulting from the failure of the court or the state to oppose defense counsel’s vacation plans despite the long period during which charges had been pending).

2018Instead, the Court pointed with approval, to past decisions in which similar agency rules “required an applicant who seeks a hearing to meet a threshold burden of tendering evidence suggesting the need for a hearing.” Id. (citing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620 (1973)).

2017Instead, the Court pointed with approval, to past decisions in which similar agency rules "required an applicant who seeks a hearing to meet a threshold burden of tendering evidence suggesting the need for a hearing." Id. (citing Weinberger v. Hynson, Westcott & Dunning, Inc. , 412 U.S. 609 , 620, 93 S.Ct. 2469 , 37 L.Ed.2d 207 (1973) ).

2023Accordingly, DOT did not waive its assertion of the § 407 privilege by 16 producing the Plan during discovery or by failing to produce a privilege log. 17 {9} Next, we turn to whether the district court erred in its application of § 407, 18 which provides that 19 [n]otwithstanding any other provision of law, reports, surveys, 20 schedules, lists, or data compiled or collected for the purpose of 21 identifying, evaluating, or planning the safety enhancement of potential 22 accident sites, hazardous roadway conditions, or railway-highway 5 1 crossings, pursuant to [§§] 130, 144, and 148 of this

2019See Pierce, 2003-NMCA-117, ¶ 20 (stating that in considering the voluntariness of consent, factors considered include “the individual characteristics of the defendant, the circumstances of the detention, and the manner in which the police requested consent”). {14} In light of Defendant’s severely compromised state, the deputy’s unclear statements to Defendant about the blood draw, and the absence of any clarifying information, the district court could reasonably conclude that Defendant was not sufficiently aware that the deputy actually was requesting his consent in a manner that resulted in a

2011See State v. Fernandez, 117 N.M. 673, 676 , 875 P.2d 2 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there is no reversible 3 error.”). 4 In his memorandum in opposition, Defendant argues, pursuant to State v. 5 Franklin, 78 N.M. 127, 129 , 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 6 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), that the need for immunity in this case 7 outweighed the State’s interest in prosecuting Calvillo. [MIO 11] We are not 8 persuaded that our proposed disposition was incorrect. 9 For the reasons set forth above, we affirm. 10 IT IS SO ORDERED. 1

2011See State v. Fernandez, 117 N.M. 673, 676 , 875 P.2d 2 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there is no reversible 3 error.”). 4 In his memorandum in opposition, Defendant argues, pursuant to State v. 5 Franklin, 78 N.M. 127, 129 , 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 6 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), that the need for immunity in this case 7 outweighed the State’s interest in prosecuting Calvillo. [MIO 11] We are not 8 persuaded that our proposed disposition was incorrect. 9 For the reasons set forth above, we affirm. 10 IT IS SO ORDERED. 1

2011See State v. Fernandez, 117 N.M. 673, 676 , 875 P.2d 2 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there is no reversible 3 error.”). 4 In his memorandum in opposition, Defendant argues, pursuant to State v. 5 Franklin, 78 N.M. 127, 129 , 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 6 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), that the need for immunity in this case 7 outweighed the State’s interest in prosecuting Calvillo. [MIO 11] We are not 8 persuaded that our proposed disposition was incorrect. 9 For the reasons set forth above, we affirm. 10 IT IS SO ORDERED. 1

2011See State v. Fernandez, 117 N.M. 673, 676 , 875 P.2d 2 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there is no reversible 3 error.”). 4 In his memorandum in opposition, Defendant argues, pursuant to State v. 5 Franklin, 78 N.M. 127, 129 , 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 6 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), that the need for immunity in this case 7 outweighed the State’s interest in prosecuting Calvillo. [MIO 11] We are not 8 persuaded that our proposed disposition was incorrect. 9 For the reasons set forth above, we affirm. 10 IT IS SO ORDERED. 1

2008See Gersten v. Senkowski, 299 F.Supp.2d 84, 101 (E.D.N.Y.2004) (noting that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the ‘vagaries of abuse indicia’ is critical”); State v. Hales, 152 P.3d 321, 344 (Utah 2007) (court held that defendant, who was convicted of murder of a child who died from injuries sustained when defendant allegedly shook him as a baby, was prejudiced by his counsel’s fail

2008See Gersten v. Senkowski, 299 F.Supp.2d 84, 101 (E.D.N.Y.2004) (noting that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the ‘vagaries of abuse indicia’ is critical”); State v. Hales, 152 P.3d 321, 344 (Utah 2007) (court held that defendant, who was convicted of murder of a child who died from injuries sustained when defendant allegedly shook him as a baby, was prejudiced by his counsel’s fail

1998Accord State v. Harris, 41 N.M. 426, 428 , 70 P.2d 757, 757 (1937) (holding that conduct “not amounting to a reckless, willful and wanton disregard of consequences ... cannot be made the basis of a criminal action”); State v. Arias, 115 N.M. 93, 96 , 847 P.2d 327, 330 (Ct.App.1993) (“Criminal negligence includes conduct which is reckless, wanton, or willful.”). {11} The facts presented in Santillanes, however, did not prompt us to consider the need for an instruction defining “reckless disregard” in cases alleging criminally negligent child abuse.

1998Accord State v. Harris, 41 N.M. 426, 428 , 70 P.2d 757, 757 (1937) (holding that conduct “not amounting to a reckless, willful and wanton disregard of consequences ... cannot be made the basis of a criminal action”); State v. Arias, 115 N.M. 93, 96 , 847 P.2d 327, 330 (Ct.App.1993) (“Criminal negligence includes conduct which is reckless, wanton, or willful.”). {11} The facts presented in Santillanes, however, did not prompt us to consider the need for an instruction defining “reckless disregard” in cases alleging criminally negligent child abuse.

1998In State v. Buchanan, 78 N.M. 588, 590 , 435 P.2d 207, 209 (1967), the Court noted an exception to the need for a hearing on issues that can be resolved based on the judge’s personal observation.

1998In State v. Buchanan, 78 N.M. 588, 590 , 435 P.2d 207, 209 (1967), the Court noted an exception to the need for a hearing on issues that can be resolved based on the judge’s personal observation.

1998Accord State v. Harris, 41 N.M. 426, 428 , 70 P.2d 757, 757 (1937) (holding that conduct “not amounting to a reckless, willful and wanton disregard of consequences ... cannot be made the basis of a criminal action”); State v. Arias, 115 N.M. 93, 96 , 847 P.2d 327, 330 (Ct.App.1993) (“Criminal negligence includes conduct which is reckless, wanton, or willful.”). {11} The facts presented in Santillanes, however, did not prompt us to consider the need for an instruction defining “reckless disregard” in cases alleging criminally negligent child abuse.

1998Accord State v. Harris, 41 N.M. 426, 428 , 70 P.2d 757, 757 (1937) (holding that conduct “not amounting to a reckless, willful and wanton disregard of consequences ... cannot be made the basis of a criminal action”); State v. Arias, 115 N.M. 93, 96 , 847 P.2d 327, 330 (Ct.App.1993) (“Criminal negligence includes conduct which is reckless, wanton, or willful.”). {11} The facts presented in Santillanes, however, did not prompt us to consider the need for an instruction defining “reckless disregard” in cases alleging criminally negligent child abuse.