(Specially Concurring).
44. I join in the result reached by the majority upholding the constitutionality of NMSA 1978, Section 31-11-1(C) (Cum.Supp. 1995), regulating pretrial and post-conviction release, and the majority’s holding that Defendant’s challenges to his conviction for DWI, second offense, do not constitute a “substantial question” as contemplated by Section 31-11-1(0(2). I also agree with the majority that Defendant is not eligible for release pending appeal of his DWI conviction and sentence.
45. I write separately, however, because, although I agree with the majority that Defendant’s motion for review of the trial court’s order denying post-conviction release on bail pending appeal of his. other convictions demonstrates that his venue challenge raises a substantial question of law, I do not join in the majority’s discussion of this issue. As observed by the majority, in 1988 New Mexico voters approved an amendment to the state constitution deleting any state constitutional right to post-conviction bail. N.M. Const, art. II, § 13. The 1988 legislature also substantially modified Section 31-11-1 and adopted a statutory test for determining whether individuals convicted of noncapital offenses or offenses other than violent offenses, as defined in Subsection D, are entitled to be released on bail pending appeal. The latter statute, as amended, provides in applicable part:
C. If a defendant is convicted of a non-capital offense other than a violent offense and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
46. Because Section 31 — 11—1(C) and (D) closely parallel the language of its federal counterpart, 18 U.S.C.A. § 3143(b) (West 1985 & Supp.1995), I agree that decisions of the federal courts construing the language of the Federal Bail Reform Act are instructive in interpreting similar New Mexico statutory provisions regulating the right of an individual following a criminal conviction to release pending the resolution of his appeal. Cf. In re Adoption ofStailey, 117 N.M. 199, 203-04, 870 P.2d 161, 165-66 (Ct.App.1994) (federal court decisions interpreting language closely paralleling state rules are deemed persuasive).
47. In the present case the trial court found that Defendant’s motion for release pending appeal satisfied the provisions of Section 31-11-1(C) necessitating a showing by clear and convincing evidence that he was not likely to flee or pose a danger to the safety to others if released pending appeal, and that his appeal was not for purposes of delay. However, the trial court found that Defendant failed to meet the final requirement of Section 31-11-1(0(2), because the issues sought to be asserted by Defendant on appeal did not raise “a substantial question of law or fact likely to result in reversal or an order for a new trial.” (Emphasis added.)
48. In resolving the question of whether Defendant has satisfied his burden of eligibility for release pending appeal, I concur with the majority that the court in United States v. Affleck, 765 F.2d 944, 953 (10th Cir.1985), properly articulates the standard of review which should be applied in this ease. The Affleck court, in pertinent part, succinctly states:
In sum, we hold that in order to grant bail pending appeal, a court must find that the defendant has met his burden of proving by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or to the community if released ..., and that he has established ... that the appeal is not for purpose of delay, and:
[1.] that the appeal raises a substantial question of law or fact; and
[2.] that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.
765 F.2d at 953 (quoting United States v. Miller, 753 F.2d 19, 24 (3d Cir.1985)).
49. If the trial court determines that a question raised on appeal constitutes a “substantial question of law or fact,” the trial court must then ascertain whether the issue is “likely to result in reversal or an order for a new trial.” Section 31-1-11(C)(2). As stated in Miller, 753 F.2d at 23, “the phrase ‘likely to result in reversal or an order for a new trial’ ... [should not] be construed to require the district court to predict the probability of reversal____ Instead, that language must be read as going to the significance of the substantial issue to the ultimate disposition of the appeal.”
50. The Miller court further noted:
A question of law or fact may be substantial but may, nonetheless, in the circumstances of a particular ease, be considered harmless, to have no prejudicial effect, or to have been insufficiently preserved. A court may find that reversal or a new trial is “likely” only if it concludes that the question is so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or new trial.
Id.
51. Defendant contends, among other things, that his appellate challenge to the propriety of the trial court’s change of venue from Taos County to Dona Ana County raises a “substantial question of law” within the meaning of Section 31 — 11—1(C). Applying the definition of “substantial question of law” and the interpretation of the Bail Reform Act discussed in Affleck, 765 F.2d at 953, to Defendant’s venue challenge in the case before us, it is clear that the legal question presented constitutes both a substantial issue and one of first impression. Thus, I agree that Defendant’s venue challenge on his appeal to this Court satisfies the requirements of Section 31 — 11—1(C). However, because the complete trial record is not before us and the parties have not had the opportunity to fully brief or argue the questions posed on appeal, I do not believe that our analysis of the venue issue at this stage of Defendant’s appeal should undertake to explore the contentions of the parties beyond a careful application of the statutory test delineated in Section 31-11-1.