Albuquerque Criminal Lawyer Blog

In State v. Toms, the New Mexico Court of Appeals addressed the foundational requirements for admission of breath alcohol score results in a DWI trial. The Court in Toms reiterated the ruling in the 2007 New Mexico Supreme Court case of State v. Martinez. In addition, the Court expanded on Martinez in addressing the proper procedural grounds by which a defendant may attack the foundation of the breath alcohol results.

The Court first stated that calibration of the machine by the officer was not enough. Though calibration of the machine is a measure to insure the accuracy of the breath alcohol score, it is insufficient to establish the foundation for admission of the score into evidence at trial. In addition, as stated in Martinez, the State must prove by a preponderance of the evidence that the machine has been properly certified and the certification is current at the time of the test. The State in short must show that the machine has been properly certified, the certification is current, and the machine was certified by the Scientific Laboratory Division of the Department of Health (SLD).

Failure to fully establish the foundation for admission of the breath alcohol score will render the evidence inadmissible. These foundational requirements are meant to insure the accuracy of the breath alcohol scores and to protect defendants against unreliable or inaccurate tests results. The State argued that the defendant must raise the issue prior to trial. Effectively, the State argued that the defendant was obligated to alert the State to weaknesses in its case prior to trial in essence providing the State with the opportunity to cure the defect.

Fortunately, the Court disagreed. This foundation is the State's responsibility, not the defendant's. The Court expressly expanded on Martinez to address the State's argument. The Court stated that the defendant has no obligation to raise the deficiency in the State's case via pre-trial motion as the trial court and the State had suggested. The Court stated that the state has the burden of laying the foundation for the breath alcohol test results and that the Court would not "require the defense to file a pretrial motion simply to advise the prosecution that it may have a defect in its proof or some problem in establishing the appropriate evidentiary foundation."

DWI is enforced very vigorously in New Mexico for good reason. DWI is a threat to the safety of all of us and our families who drive New Mexico roads. However, on occasion, DWI is perhaps enforced a little too vigorously as was the recently invalidate practice of arresting drivers who were sleeping in their cars, and the continuing practice of arresting and prosecuting drivers at breath alcohol levels below .08. Fortunately, the Court in State v. Tom has not shifted the burden of prosecution to the defendant him or herself by placing the responsibility of foundational elements to the defendant. After all, the defendant should not carry the burden of prosecuting him or herself despite the efficiencies that would come from such a requirement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Fox and others have grossly mischaracterized the new Department of Homeland Security policy regarding the removal of illegal immigrants. For political gain, these organization and individuals have portrayed the new policy as an amnesty program suggesting that the Obama administration is not serious about immigration enforcement. It is not surprising as no stone is left unturned to scare the daylights, and rationality, out of voters.

In fact, the new policy would simply release those immigrants from immigration detention facilities if and only if they have pending visa application and are likely to successfully achieve legal immigration status. These immigrants will likely achieve legal status so there is no reason to hold them in immigration detention facilities.

The reports from Fox and others are clearly dishonest, opportunistic, and grossly cynical. The reports are meant to garner Republican votes at any costs. The reports seem to appeal most to Tea Party supporters. Ironically, it is these voters who should be most offended by the reports.

The costs of these unnecessary detentions are huge. It is estimated there was a backlog in the federal courts of 247,922 cases as of June. Each of these represents an individual being held in immigration detention facilities at a cost per detainee that can exceed $100 per day. This does not begin to address the costs affiliated with the Immigration and Customs Enforcement in the investigation, location and arrest of these individuals.

The reports fail to recognize the work of ICE over the past year. The reports suggest that immigrant criminals are being freed wholesale onto our streets. In reality, there have been a record number deportations of immigrants with criminal convictions over the past year. There were over 167,000 immigrants with criminal convictions deported in the 2009. This represents a 43 percent increase over the 2008, when Bush was still in office.

The reports fail also to recognize the realities of immigration removal for criminal offenses. Many who hear these reports imagine immigrants committing horrendous crimes against society. In fact, immigrants can be removed for pretty trivial criminal offenses such as shoplifting, minor possession of marijuana, possession of paraphernalia, even a hint of domestic violence, and many other offenses that for a citizen would be a minor bump in the road. In contrast to the portrayal of ICE as light on criminal immigrants, immigrants face removal for these offenses even if they are here legally, have been here for years, have worked and paid taxes, have raised families, bought homes, started businesses and contributed positively to our society in every possible way.

It is unfortunate that Fox and others would so badly distort the truth. These reports are harmful to American taxpayers who foot the bill for any delay in implementation of the new policy. It is disrespectful to the ICE officers in the field who daily make gains on the very serious problem of criminal immigrants. Most of all, it promotes an unjust and inhumane policy of imprisoning immigrants who pose absolutely no risk to our country, have committed no crimes and who in the end will attain legal status, and likely become fellow American citizens.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The presumptive breath alcohol level for driving is .08. A driver who blows over .08 is presumed to be DWI. There are no such levels established for drugs and driving. This issue is becoming more prevalent with increasing trends by Albuquerque and Rio Rancho police to arrest drivers who are on prescription medication.

The problem has made headlines recently with DUI charges against Ron Bell, a well known local Albuquerque attorney. Ron Bell was arrested for the use of prescription methylphenidate, Ritalin, which is commonly used for the treatment of ADHD. In fact, studies show that treatment of ADHD actually reduces driving risks so any policy that would deter ADHD drivers from taking their prescription medications will actually put New Mexico drivers and their families at risk.

The trend toward arresting drivers on prescription medications is problematic for any number of reasons. First, the medications may be necessary for the individual to function, i.e. go to school or work. Second, many of the medications for which drivers are being charged do not impair driving ability at therapeutically prescribed levels. Finally, and most importantly, there are no standards for when an officer can make an arrest. The arrest decision is left entirely up to the officer.

The problem resembles the "impaired to the slightest degree" standard used in DWI to convict drivers at breath alcohol levels well below .08. The "impaired to the slightest degree" standard and the complete lack of standards for prescription drug use leads to some interesting due process issues. So how do you know when a driver is impaired? Arriving at the answer to that is pretty straightforward. In a bench trial without the benefit of a jury the answer is easy. Though, there may be some theatrics and a few procedural protocols, it comes down to the prosecutor and the judge asking the cop what he or she thinks. If the cop says you are impaired, you are impaired unless your attorney can convince the judge otherwise. Juries are much more discriminating. Unfortunately, first time DWI's are not eligible for a jury trial.

There are many that take the position that any alcohol, no matter how little, is too much for driving. There are others that cry that any drugs and driving are unacceptable. Its more than a little ironic that Ron Bell fit into the first group as the self-anointed punisher of drunk drivers and now falls prey to the second. Both those in the first group, like Mr. Bell, and those in the second might want to consider the implications for both due process and their family's safety when getting behind what appears to be a trending policy toward arresting drivers for prescription medication use without the benefit of any standards to protect against wrongful conviction.

Most officers are honest and professional. But even honest officers could have problems here. There simply are no standards forcing officers to err on the side of caution. This may be fine for most endeavors but not criminal justice. The standard for conviction is "beyond a reasonable doubt." How is this standard of proof applied to a crime that has no definition?

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Most in Albuquerque have heard about the recent DWI arrest of well known personal injury attorney Ron Bell. He was arrested and charged with DWI. These charges were dismissed against Bell when the Breath Alcohol score came back at 0.0%. He has now been charged with DUI for the presence of prescription methylphenidate, more commonly known as Ritalin in his blood alcohol results. Methylphenidate is regularly prescribed for attention deficit disorder.

Bell has been charged with DUI despite the fact that his blood levels are within therapeutic ranges on the often abused legal standard of "impaired to the slightest degree." It is not clear why he is being charged. It could be overzealous DUI enforcement, the same zealotry that led to the arrest of drivers sleeping in their cars. It could be related to a need for DUI arrest numbers. It could be related to a fear of a pretty significant personal injury suit against the City of Albuquerque and the Albuquerque Police Department for the wrongful arrest of Ron Bell in the first place.

Why is in important to you? It is important because attention deficit hyperactivity disorder (ADHD) is a major cause of auto accidents in both teenagers and adults. Any trend by Albuquerque police or any other law enforcement agency in New Mexico toward arresting and charging drivers for the use of prescription methylphenidate will place you, your family and all other drivers on New Mexico roads in peril. And for no good reason other than beefing up DUI arrests and conviction statistics.

In fact, an article from the Journal of Safety, published by the National Safety Council and written by a panel of writers including Russell A. Barkley, Ph.D. a leading expert in the field of ADHD, clearly illustrates the dangers of a trend toward DUI arrests and conviction for the therapeutic use of methylphenidate.

The article states the well accepted conclusion that ADHD does cause heightened driving risks in both teens and adults. The article further concludes that control of ADHD through medication such as methylphenidate is necessary to reduce these risks. In fact, the authors go so far as to suggest that employers screen and treat drivers for ADHD to reduce driving risks of their employees.

Clearly, DUI arrests and conviction of drivers for prescription use of methylphenidate will deter the use of these medications for the treatment of ADHD. As a result, there will be an increase in untreated ADHD drivers as drivers will have to choose between proper medication and jail. So once again, overzealous and misguided DWI/DUI enforcement has placed you, your family, and all other drivers in New Mexico at risk.

As much pleasure as some take in seeing a well recognized attorney arrested, including some in the media, you would be well advised to contact your representatives to express your concern for this trend. It is important well beyond whether or not Ron Bell is convicted. It is dangerous public policy that jeopardizes the safety of all those that drive our streets, including you, your family and loved ones.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court expanded on its ruling in State v. Sims in the case of State v. Mailman. Sims addressed the problematic situation that had arisen by overly aggressive DWI/DUI enforcement in the arrest and prosecution of drivers found sleeping in their cars after drinking.

Sims stated that for a DWI arrest in such situations, the driver must have been in actual physical control of the vehicle as evidenced by both control and intent to drive. Sims set forth several factors to be considered in the issues of control and intent which have since been formalized in proposed jury instructions to address sleeping while intoxicated. These factors include:

1) whether the vehicle was running, 2) whether the ignition was in the "on" position, 3) where the key was located, 4) where the driver was located, 5) whether the person was asleep, 6) whether the headlights were on, 7) where the vehicle was stopped, 8) whether the driver had voluntarily pulled off the road, 9) the time of day, 10) the weather conditions, 11) whether the heater or A/C was on, 12) whether the windows were up or down, 13) whether the vehicle was operable, and 14) any reasonable explanations justified by the circumstances.

The Court in Mailman reiterated the finding in Sims stating that intent may not be inferred by control of the vehicle. The court stated that actual physical control requires not only control but intent, suggesting that each be proven independently. The court explicitly overruled State v. Tafoya which involved a conviction of a driver found in an inoperable vehicle that had stalled in the middle of a major street because the court had failed to consider control and intent as set forth in Sims.

In Mailman, the driver was found highly intoxicated in his broken down vehicle in the parking lot of a convenience store. The driver admitted to being intoxicated and admitted to having driven to the store. The State presented two different theories to the jury, 1) he was actually driving while intoxicated, and 2) he was in control of the vehicle while impaired to the slightest degree. The jury found the defendant guilty but it was not clear on which theory the verdict was rendered.

The Supreme Court in Mailman found that though defendant might have legitimately been convicted for actual driving while intoxicated which was basically admitted by defendant, there was insufficient evidence presented by the State for conviction based upon actual physical control under Sims. Because it was not clear on which grounds the conviction rested, the legitimate or illegitimate grounds, the verdict was reversed.

The Court expanded on Sims in holding that actual physical control, control plus intent to drive, may be established by eyewitness testimony of defendant's driving. However, in the absence of eyewitnesses, the State must prove actual physical control as set forth in Sims adding that defendant's own admissions may/should be taken into consideration. In other words, Mr. Mailman dodged a bullet as a result of the prosecutor's failure to settle on one theory or another.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Though New Mexico Motor Vehicle Division has no authority to revoke an out of state drivers license, a New Mexico DWI may still impact an out of state license. Many states such as Arizona will give the New Mexico order of license revocation full faith and credit for the period of revocation. As a result, an out of state driver may lose driving privileges in his or her own state as result of a New Mexico DWI.

New Mexico MVD will often, though not always, report the DWI to those states that recognize its orders of revocation. As a result, the out of state driver though still in possession of his or her license may find that their driving privileges have been revoked or suspended in their own state. The issue most often comes up when the driver has to renew his or license.

In order to reinstate their license in their home state, they must jump through some hurdles at the New Mexico MVD. However, the hurdles are substantially less for out of state drivers than New Mexico drivers. Under New Mexico DWI laws, a revocation carries a mandatory 6 month interlock license and interlock device on the driver's vehicle. The interlock laws do not typically apply to other states as most other states have no comparable laws. This is changing with National Ignition Interlock legislation gaining support.

Since the interlock laws do not apply to most other states at this time, once the 6 month revocation period has expired, the out of state driver need not prove the 6 month interlock requirement has been met as is required of New Mexico drivers. The driver need only provide proof to New Mexico MVD that he or she is a resident of another state and pay a $100.00 reinstatement fee to New Mexico MVD. This should provide clearance of the out of state license so that it will be unrestricted in the home state.

Keep in mind that the MVD hearing and license revocation is completely separate from the DWI criminal case. Therefore, even if the driver wins his or her criminal case or the case gets dismissed, the MVD penalties still fully apply. This comes as a great disappointment to many no matter how many times it is explained as it just seems manifestly unfair and unjust that the MVD revocation stands despite the dismissal of the underlying DWI. Unfortunately, it is simply the way the law works.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the misdemeanor arrest rule in the context of a DWI arrest in State v. Reger. The misdemeanor arrest rule requires that the misdemeanor actually occur in the presence of the officer with the arrest based upon the officer's own observations. The rule is meant to protect individuals from warrantless searches based upon information from third parties. The rule raises significant challenges in DWI cases where drunk drivers are often called in on DWI tip lines.

The facts are somewhat similar to the those of the New Mexico Supreme Court case of City of Santa Fe v. Marcos Martinez. In Martinez, an anonymous caller identified the defendant and his driver's license number. The police officer traced the license to Mr. Martinez residence where the officer found him extremely intoxicated inside his home. Reger also involved an anonymous tip. Reger was found in a parking lot next to his vehicle with the hood open. In both Reger and Martinez, the defendants admitted to drinking and having driven their vehicles. Like the Supreme Court in Martinez, the Court of Appeals in Reger found that the misdemeanor arrest rule did not apply.

The court cited State v. Ochoa as follows:

In these circumstances, the officer's personal perceptions include observation of the circumstances surrounding the presence of the defendant and the vehicle, observation and smells evidencing the defendant's intoxication, and hearing what the defendant and others say. What the officer perceives supplies sufficient "facts and circumstances occurring within [the officer's] presence in connection with what, under the circumstances, may be considered common knowledge, [to] give [the officer] probable cause to believe or reasonable grounds to suspect that a crime has occurred."

The Court stated further, "We see no point in ignoring the obvious in cases where overly technical applications of the misdemeanor arrest rule could supply a tiny crack for the case to fall into." The rulings in both Martinez and Reger seem to follow common sense. In both cases, the defendants admitted to drinking and driving. Forbidding arrest in these situations would lead to rather absurd outcomes once the officer leaves the scene leaving the intoxicated driver free to go on his merry drunken way.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The issue of whether or not the police offered an independent blood test comes up fairly regularly. Often times, those arrested for DWI/DUI do not remember being offered an independent blood test. Just as frequently, they flat deny that an independent blood test was offered. It then becomes a simple matter of who the court or jury believes, the DWI/DUI defendant or the police officer. This is typically not going to end favorably for the defendant.

If you blow over .08 on the breath alcohol test, then you should request an independent blood test. The officer may not tell you your breath score. If you find yourself in the midst of the booking process, then rest assured you need to request a blood alcohol test.

The breath test have an error rate of at least 10%. There are numerous individual or situational factors that may elevate the score as well. If you have only had a little to drink, it is critical that you get a blood draw since these other factors may be at work. The blood test is far more accurate and may be significantly lower as a result of these factors.

You should be vocal about your request for the blood alcohol test. Even this may not be enough if an officer ignores your requests. To provide verifiable proof of your request, you should write "I want a blood test" on every single document that you sign during the arrest and booking process. This will provide proof of your request as well as the failure of the officer to provide the test in violation of New Mexico law.

Now comes the bad news. It may be pretty difficult finding a blood draw service. Though the law enforcement is supposed to assist in providing a blood test, they may just give you a phone book. Good luck finding someone to come to the jail or substation to take a blood draw, particularly late at night. If the officer will not assist you in locating a blood draw facility, which may be the case, then contact Any Lab Test now. They are available 24/7 at (505) 319-6059.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed 4th Amendment search & seizure issues in State v. Jose Manuel Martinez. The case involved the expansion of an investigation of an felony aggravated battery case to the detention of the defendant until a canine unit could be called to the scene for a search of the defendant's car.

The defendant was identified as the perpetrator in an aggravated battery where the alleged victim had suffered serious injuries and coma. The police officers went to the location of the alleged incident where they found a number of individuals including the defendant. The officers smelled marijuana in the residence and asked the occupants to step outside. The officers conducted a walk through search but found no evidence of drugs or weapons.

Despite the apparent lack of any evidence of a crime at the scene, the officers then asked if the defendant had any weapons in his car. The defendant answered that all he had in his car was a crowbar. The officer asked to search the car. Defendant refused the search stating that he would retrieve the crowbar for the officer. The officer then detained the defendant calling in the canine unit. Upon searching the vehicle, the officers found two bags containing cocaine, a digital scale, and rolling papers resulting in charges of trafficking a controlled substance and possession of drug paraphernalia.

The question was whether the expansion of the investigation under these circumstances was reasonable and constitutional under the 4th Amendment. The Court of Appeals found that the expansion was reasonable thereby denying the defendant's motion for suppression of the cocaine and paraphernalia.

The court stated, "An officer may expand the scope of an investigatory stop if the officer has reasonable suspicion that other criminal activity is taking or has taken place... If evidence of another crime surfaces during a routine investigatory stop, the officer may proceed in a reasonable manner to investigate." The court was quite generous toward the investigating officers in allowing for the search on these grounds. The Court stated that the defendant's admission that he had a crowbar, but refusal to allow the search of his vehicle, was an indication of other criminal activity sufficient to justify the detention of the defendant until the canine unit arrived, and the search of the defendant's car.

In light of the customary deference to the 4th Amendment and the expansive protections against unlawful search and seizure under New Mexico law, the outcome is somewhat surprising. The case seems like a good candidate for further appeal to the New Mexico Supreme Court where there may be a different outcome.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the constitutionality of a "reach-in" search of a defendant on a busy street in the recent case of State v. Williams. The court found that the search was an unlawful invasion of privacy under the circumstances and therefore and illegal search and seizure under the 4th Amendment.

In a nutshell, there was a felony warrant outstanding on the defendant. The officer legally pulled the defendant over in his car. The officer legally placed the defendant under arrest due to the warrant. The officer then pulled out the defendant's waist-band on his pants looking in and seizing crack cocaine in the defendant's pants. The search and seizure was conducted in broad daylight on a busy city street. The defendant argued the search constituted an illegal strip. The Court disagreed that it was a strip search. However, the Court still found the search to be unreasonable under the circumstances and therefore unconstitutional.

The issue that arose was not whether the officer was entitled to search the defendant. All parties agreed that the officer had the right to search the defendant. However, the manner of the search was found to be unreasonable and unconstitutional under the 4th Amendment. The Court recognized that there are situations where the suspect's sense of modesty and privacy are overridden by exceptional circumstances. However, the cases all indicated that reasonable steps must be taken to protect the suspect's privacy. The Court stated that there was must a proper balance between the immediate need to search the suspect and the invasion of privacy and embarrassment associated with a public search.

In State v. Williams, the search was conducted in broad daylight during rush hour. No evidence was presented by the State showing that appropriate steps were taken to lessen the invasion of the defendant's privacy or that the situation dictated an immediate search in the manner it was conducted. In fact, according to the Court, the trial court did not consider at all the reasonableness of the location or the manner of the search.

Because the State failed to show the reasonableness of the search, or necessity under the circumstances, the search was found to be illegal and the crack cocaine was suppressed. Many will take objection to the ruling. The ruling may seem to run against common sense. However, the New Mexico courts are very protective of constitutional rights often extending protections well beyond the federal courts in similar situations. And the simple fact is the officer could have waited and conducted a full strip search once the suspect was taken to jail. The search as conducted simply was not necessary and some very basic steps could have protected both the defendant's right to privacy as well as the officer's seizure of evidence.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

There are proposed new jury instructions to address the anomalies DWI/DUI arrests and prosecution for sleeping while impaired. The new proposed New Mexico Uniform Jury Instruction §14-4512 more precisely defines the physical control of a vehicle necessary for a DWI/DUI charge. The new proposed jury instruction follows the recent New Mexico Supreme Court case of State v. Simms where it was found that someone sleeping in their vehicle without the keys in the ignition lacked the control or the intent to drive the vehicle necessary for a DWI charge.

The New Mexico Supreme Court in Simms stated that there must not only be control over the vehicle but also an intent to drive. The Court stated that generalized intent was insufficient. It is no longer sufficient for the prosecutor to argue that the individual might have woken up and decided to drive. The new jury instruction sets forth a number of factors for the determination of both the control and intent necessary to charge a parked driver with DWI including: 1) whether the vehicle was running, 2) whether the ignition was in the "on" position, 3) where the key was located, 4) where the driver was located, 5) whether the person was asleep, 6) whether the headlights were on, 7) where the vehicle was stopped, 8) whether the driver had voluntarily pulled off the road, 9) the time of day, 10) the weather conditions, 11) whether the heater or A/C was on, 12) whether the windows were up or down, 13) whether the vehicle was operable, and 14) any reasonable explanations justified by the circumstances.

The clear intent of the new jury instruction is to avoid the arrest and prosecution of individuals who have chosen to act responsibly by avoiding drunken driving. It is also clear that the instruction attempts to avoid abuse of the new Simms ruling by shrewd drivers who may attempt to feign circumstances to avoid arrest for DWI. It remains to be seen how the new Simms ruling will be implemented and how a jury will view these factors in consideration of DWI/DUI cases.

It is unfortunate that Simms and the new jury instruction come too late for many who were unjustly prosecuted for DWI when they were simply trying to do the right thing. There were many such individuals particularly in Albuquerque where DWI enforcement on occasion seems to defy logic or reason. Those like Fidencio Francia, a Vietnam war veteran, who was arrested for trying to sleep off a night of drinking in his car prior to the Simms decision will not benefit from the newly enlightened jury instruction.

On the other hand, the new Simms ruling along with the new jury instruction if adopted should avoid future such unfortunate and misguided prosecution thereby allowing drivers to act responsibly. Albuquerque streets will be made a little safer as a result of the Simms case. No longer will folks like Mr. Francia be encouraged to drive drunk to avoid arrest for sleeping in their vehicle.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Receipt of a target letter means that you are the subject of a felony criminal investigation. More specifically, it means that your case and your charges have been set for a grand jury investigation. The target letter will provide all the particulars regarding the alleged crimes, the statues, the time and location of the grand jury proceedings. What the target letter does not provide is an explanation of the process or your rights in the process.

In the past, it was said that the grand jury would indict a ham sandwich. The truth of this adage led the New Mexico Supreme in Jones v. Murdoch to set forth an accused procedural rights for introducing exculpatory evidence at grand jury. In addition to what has turned out to be a very limited right to present exculpatory evidence, the accused has a right to testify on his or her own behalf at grand jury. In the past, most attorneys would rarely if ever allow a client to testify at grand jury. There is a small trend toward allowing clients to testify. Some research has indicated that jurors are more balanced in their judgment than the ham sandwiches would have you believe.

On the other hand, the risks are great. Any testimony and/or admissions given at grand jury is under oath and may later be used at trial in the case of indictment. Worse yet, the attorney for the accused is allowed only minimal participation. The attorney may not present evidence, examine state witnesses or even question his or her own client. Essentially the attorney is limited to whispering in the client's ear for guidance. Clearly, this is not looked upon favorably by jurors as few like seeing a lawyer whispering into the ear of an alleged felon. As a result, the attorney will typically simply sit and observe fingers crossed hoping the client does tank the defense so early in the game.

Despite the studies showing that grand jurors might be more open minded than thought in the past, favorable outcomes are quite rare while damage to the defense and the client are more the norm. And in the end, the grand jury remains a rubber stamp except in rare and exceptional cases. Energy is arguably better spent working on a defense or possible favorable dispositions than fighting the grand jury. Any risk of harming the defense before felony charges have even been filed seems ill advised for ham sandwiches, soups and salads alike.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The 4th Amendment protections against unlawful search and seizure generally require a warrant grounded in probable cause prior to the search of a citizen's home. It has long been recognized that the broad protections of the 4th Amendment do not apply to those on probation or parole. The issue was addressed most recently in the New Mexico Court of Appeals case of State v. Benavidez.

In Benavidez, the defendant's parole officer visited the defendant's home for a parole visit. The parole officer knocked on the door repeatedly. The defendant would not answer the door. The parole officer saw the curtains in the defendant's bedroom moving. There was also a car in the driveway in which the parole officer had earlier seen the defendant driving. The parole officer called for police backup. Upon arrival, the officers kicked in the door. Upon searching the home, they found the defendant hiding under a bed. They also found meth and paraphernalia in the defendant's bedroom where he was found hiding.

The defendant was charged with possession of a controlled substance and drug paraphernalia. He entered a conditional plea to the charges reserving his right to appeal the constitutionality of the search and seizure. The defendant argued that the search and seizure was illegal and therefore the drugs and the paraphernalia should be suppressed. The court of appeals found the search and seizure to be lawful drawing upon abundant case-law supporting the search and seizure of the parolee's home.

The court indicated that probationers and parolees do not enjoy the same protections under the 4th Amendment as do ordinary citizens. The Court cited the interests in the State in supervising probationers/parolees which dictate a lesser expectation of privacy. In fact, probation and parole agreements require that the probationer/parolee submit to reasonable searches of his or her home. Thus, a search may be conducted for reasonable suspicion rather than the higher standard of probable cause that applies to ordinary citizens.

In this case, the Court found that the refusal of the defendant to open his door for his parole officer provided reasonable suspicion for the search. The refusal itself constituted a violation of the terms of parole which alone was sufficient grounds for the search. Based upon the Court's finding that the search and seizure were legal under the 4th Amendment, the defendant's appeal was denied.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Broad discovery is fundamental to due process in the defense of criminal charges. The New Mexico Court of Appeals addressed the issue in State v. Ortiz. The court stated that a defendant is entitled to all discovery that might reasonably relate to the defense. The defendant need not know in advance that the records, documents or other evidence are helpful, but only that they might possibly be helpful to the defense.

Ortiz involved a DWI stop. The officer stated in grand jury testimony that he stopped the defendant due to erratic driving behavior. Through discovery, the State provided a videotape of the incident. However, the video was missing 6 minutes of footage. The defendant insisted that the State provide the excised portion of the tape. The State refused stating that the missing portion was irrelevant to the case. The defendant also requested the officer's cell phone records for the missing 6 minute period. Again, the State refused stating that the officer had an expectation of privacy in his personal cell phone records.

The district court ordered the State to provide both the missing video footage as well as the officer's cell phone records for the six minute period. The State refused. The Court, exercising its discretionary authority for discovery violations, suppressed all evidence arising from the DWI stop which resulted in dismissal of the case. The Court of Appeals affirmed the district court's dismissal of the case.

The Court of Appeals reiterated the liberal discovery standard in criminal cases. The court cited United States v. Lloyd, a 1993 D.C. Circuit Court case, as follows: the "materiality standard...is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation , corroborating testimony or assisting impeachment or rebuttal."

The Court agreed with the district court that both the missing video footage and the officer's cell phone records during the missing 6 minutes might play a role in the defense. It was not up to the defendant to prove the materiality of the evidence. Instead, the defendant had the right to obtain and review the evidence for its materiality. The court indicated that liberal discovery was fundamental to the defendant's due process rights and his right to a fair trial.

The Court's ruling as well as the liberal rules of discovery are essential to the defense. In addition, they reflect plain common sense. A defendant would hardly be entitled to any discovery if it were required that he or she first show the materiality of the evidence before obtaining it. The materiality of evidence often cannot be known until it has been reviewed. In many cases, a review of the evidence may find that it is immaterial or otherwise inadmissible. But due process dictates that all potentially material or relevant evidence be disclosed. Only then can a determination of admissibility be undertaken. It takes little imagination to envision potential abuse of a less stringent discovery rule.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court recently addressed the applicability of the misdemeanor arrest rule to DWI/DUI arrests in City of Santa Fe v. Martinez. The case involved a tip from a mall employee who observed the defendant attempting to unlock several different vehicles in the mall parking lot before he finally ventured upon his own vehicle and drove away. The mall employee contacted the police providing the defendant's drivers license number.

A Santa Fe police officer traced the license to the defendant's home. The police officer went to the defendant's home where he found the defendant inside extremely intoxicated. The defendant voluntarily opened the door and allowed the officer into the home. He admitted drinking and having driven the vehicle earlier.

Based upon the defendant's statements, his visible intoxication, the smell of alcohol and other indicators of intoxication, the officer arrested the defendant. The defendant refused the breath alcohol test which resulted in charges for aggravated DWI.

The defendant moved to dismiss the charges for violation of the misdemeanor arrest rule which the court denied in Santa Fe Municipal Court. The defendant appealed to district court where the conviction was set aside. The City of Santa Fe appealed and the case made its way to the Supreme Court.

The misdemeanor arrest rule is a long standing rule requiring that an officer actually observe the misdemeanor offense in order to make a warrantless arrest. There is no such rule for felony arrest. The rule derived from the fact that misdemeanors are typically not as serious as felony crimes and pose a much lower risk to public safety.

The New Mexico Supreme Court determined that the misdemeanor arrest rule should not apply to DWI/DUI arrests. The court reasoned that unlike most misdemeanor offenses, DWI/DUI pose a very real, immediate and significant risk to public safety stating, "Given the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI should be treated as a felony for purposes of warrantless arrests." In addition, delay in investigation and arrest on DWI results in the loss of evidence of intoxication as the person begins to sober up. The court indicated that the misdemeanor arrest rule represents a balance between the rights of the accused and public safety. In the case of DWI, the balance according to the Court falls on the side of waiver of the misdemeanor arrest rule in DWI/DUI cases.

This is a significant development in DWI/DUI enforcement. It remains to be seen how this will play out in future DWI/DUI enforcement. The rule may impact the DWI police team concept as well as the need for both the stopping officer and DWI investigating officer at trial. It is likely that there will be future activity surrounding these issues as this case is incorporated into DWI enforcement practices.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com