The general rule is that, in the absence of an explicit constitutional or statutory provision to the contrary, "the acts of the grand jury with respect to the finding of an indictment are not binding on the prosecuting attorney with respect to his filing of an information, and an information may be filed, although the grand jury has investigated the case and refused or failed to find an indictment." 42 C.J.S.
Indictments and Informations § 43 (1991) ; see also Chavez, 93 N.M. at 273, 599 P.2d at 1070.
In New Mexico, both the Constitution and statutory law define the scope and limits of the State's ability to initiate criminal proceedings against an accused.
Article II, Section 14 of the Constitution provides:
No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. N.M. Const. art. II, § 14.
Had the drafters of the Constitution intended to prohibit the State from changing its method of prosecution when its initial choice is unavailable or unsuccessful, they would have included some language to that effect.
Cf. Idaho Const. art. 1, § 8 ("Provided further, that after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefore, upon information of the public prosecutor.").
As the Montana Supreme Court wrote when interpreting a constitutional provision similar to Article II, Section 14:
The provision, in effect, declares that no citizen shall be held to answer, except upon a charge preferred by one of the methods of procedure indicated.
There is nothing in it to indicate an intention that any citizen has a vested right to be charged by one method, to the exclusion of the other.
Its provisions are in the alternative, without express limitations as to either, and we think it was the intention that either the indictment or information should be available, and that either might be resorted to in case the other should not be available, or for any cause break down during the progress of the prosecution. . . . But this does not mean that, after an indictment has been dismissed, he may not be charged with the same offense by any method the use of which is permitted by the Constitution, until his guilt or innocence has been ascertained by the verdict of a jury, or, in any event until he has once been in jeopardy. State v. Vinn, 50 Mont. 27, 144 P. 773, 776 (Mont. 1914).