Albuquerque Criminal Lawyer Blog

Once a criminal investigation has been concluded, and a felony case has been referred to the prosecutor, the accused will receive a letter indicating that he or she is the target of a grand jury investigation. The letter is called a target letter. The target letter will indicate the date and time of the grand jury hearing.

In the past, the grand jury has been a mere procedural formality prior to the filing of felony charges. It was said that the grand jury would indict a ham sandwich. The prosecutor was able to pick and choose evidence as it saw fit often neglecting to present clearly and readily available exculpatory evidence. There were few if any procedural or evidentiary protections to insure a balanced presentation of the evidence. In addition, the defense had few opportunities to present a defense at this stage. Because of the low standard for indictment of the lack of any procedural or evidentiary protections for the accused, and the virtual certainty of an indictment, the grand jury hearing often went uncontested. Unfortunately, many innocent people were indicted on pretty flimsy evidence. Though these cases might later be dismissed for lack of evidence, the damage to the accused was already done once the charges were filed, and their lives and their reputations were turned upside down.

The Supreme Court of New Mexico addressed the injustice of the grand jury procedure in Jones v. Murdoch (NM 2009). The Court recognized the injustice of the grand jury procedure very succinctly when it stated:

"To allow the prosecutor's screening function to proceed unchecked pre-indictment invites post-indictment inefficiencies into the system. And to assume that all damage flowing from an unjustified indictment can be cured post-indictment is to ignore the lasting injury that even an unsuccessful indictment can inflict."

To correct the procedural imbalance of the grand jury and the enormous harm of a baseless indictment, the Court expanded the accused target's right to have exculpatory evidence presented to the grand jury. To be admissible, the evidence must simply be "lawful, competent, and relevant" and must tend to prove the indictment is unjustified.

There are numerous requirements on the criminal defense attorney to take advantage of the new grand jury defense opportunities now available as a result of Jones v. Murdoch. The challenges at grand jury are still significant. In fact, despite the new protections of Jones v. Murdoch, innocent people will continue to be indicted along with the ham sandwiches. However, there will be many more victories at this stage than in the past. And with each success, it is hoped prosecutors throughout New Mexico will be less inclined to abusive grand jury practices and clearly baseless grand jury proceedings that have been the rule in the past.

Parrish Collins
Collins & Collins, P.C.
Albuquerque, New Mexico
www.collinsattorneys.com

Often times, if you are suspected of a crime, a criminal investigation will begin. In some cases, particularly in cases of economic crimes, the case will not be referred to the prosecutor until the investigation has been completed. These investigations can be very lengthy so there is time to act prior to the referral to the prosecutor.

In the case where a criminal investigation is started against you, a law enforcement investigator will typically contact you for purposes of an interview. The request may come by a phone call or even a letter. This situation can be very stressful. It can also be hazardous for your rights. You should proceed very cautiously in this situation, and you should immediately contact an attorney.

You do not want to ignore the investigator if there is possible resolution of the case prior to referral to the prosecutor. This could result in an immediate referral of the case to the prosecutor. Once the case gets to the prosecutor, you have an entirely new set of problems. If there is any chance of stopping the referral of the case to the prosecutor, then you should consider hiring an attorney for purposes of working out a resolution of the case with the investigator.

It is typically unwise to attempt this on your own since during the course of the "negotiations", you may make harmful admissions that will later be used against you should the case be referred to the prosecutor. You should understand that these cases are typically going on the prosecutor and the investigation is purely for purposes of building the case against you. You do not want to contribute to the evidence against you by making ill-advised statements to the investigator.

If you are contacted by an investigator concerning possible criminal charges against you, you would be wise to contact an attorney. If you cannot afford an attorney, then you should politely decline to give a statement to the investigator. You should make it clear to the investigator that you do not want to speak with the investigator and make it clear that any statements if any will be made through an attorney which eventually you will have you private counsel or the public defender's office.

Parrish Collins
Collins & Collins, P.C.
http://www.collinsattorneys.com

Governor Bill Richardson is pushing hard for ever harsher penalties for DWI offenders. Despite, or due to, the successes in bringing down alcohol-related driving fatalities, Governor Richardson does not believe the penalties are harsh enough.

The penalties in New Mexico for DW/DUII are already severe. These include mandatory driver's license revocation, probation and fines even for first time offenders. For repeat offenders and aggravated offenses, the consequences of DWI/DUI grow increasingly severe with increasing levels of mandatory jail time and fines.

Currently, first time simple non-aggravated DWI/DUI offenders are offered First Offender Program. Those admitted to First Offender Program do not go to jail. Instead, they are placed on probation with counseling, Victim Impact Panel, Community Service, and fines. Governor Richardson is seeking 3 days of mandatory jail time and minimum fines of $2500.00 for first offenses. Currently, the maximum fines are $500, and there is no mandatory jail time allowing judges to place first time offenders in First Offender Programs.

In addition, the Governor seeks to take away the option of community custody. Community Custody allows the offender to serve the mandatory sentence under house arrest. Community Custody saves the State millions while also allowing the offender to maintain employment and to provide for their families. The proposed new harsher sentencing would create an enormous burden on an already over burdened state budget while also devastating many offenders financially due to the loss of their employment caused by mandatory confinement.

It remains to be seen whether his proposed harsher DWI/DUI laws will go into effect. And if they do, it remains to be seen whether they will have any impact on the incidence of DWI/DUI offenses. There is no question that the laws would bring a significant burden to the State's overtaxed courts and overburdened budget while at the same time destroying the lives of many who but more one mistake lead productive, law-abiding lives.

Parrish Collins
Collins & Collins, P.C.
Albuquerque, New Mexico
www.collinsattorneys.com

It is comes as a surprise to many that their license may be revoked even though they eventually win their DWI/DUI case. In fact, the Implied Consent Act under the New Mexico Motor Vehicle Code calls for the automatic revocation of your license if you blow .08 or above on the breath alcohol test (.04 for commercial drivers, and .02 for minors) or you refuse the test. The length of the revocation depends upon whether the DWI/DUI is a first offense or a repeat offense. You can view of all the consequences of a DWI/DUI by clicking here.

Under the Implied Consent Act, it does not matter that your DWI/DUI case is eventually dismissed or even if you win your case at trial. The MVD revocation is automatic once you register .08 on the breath alcohol test or refuse to take the test.

The only way to insure that you keep your license is to fight your case at the MVD Revocation Hearing. In order to do this, you must request a hearing by mailing the MVD Request for Hearing within 10 days of your arrest for DWI/DUI. You must enclose $25.00 with your request or the request will be denied. If you fail to mail the request within 10 days or fail to enclose the $25.00, your license will be automatically revoked.

If you do request the hearing, your attorney will attend the Revocation Hearing. The good news is that you do not have to attend this hearing. Only your attorney must attend. The bad news is that these hearings are almost a rubber stamp for the revocation of your license. The only issues addressed at the hearing are whether:

1. The law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle while under the influence of alcohol or drugs;
2. The person was arrested;
3. The hearing is held no later than 90 days after the notice of revocation (date of arrest);
4. The person blew .08 on the breath alcohol test (.04 for commercial vehicles and .02 for minors) or the person refused the breath alcohol test after being advised that refusal could result in automatic license revocation.

The standard at the MVD hearing is very low. It is a preponderance of the evidence which means the officers must simply show that more than likely you are guilty of driving while under the influence of alcohol or drugs. There are no rules of evidence so the police can offer pretty much anything they wish to prove your guilt. The MVD Hearing Officers will very rarely dismiss the case once it gets to a hearing.

So how do you win these? You or your lawyer shows up and hopes that the police officers do not show up. Both the officer that stopped you must show up to prove element (1) above, the DWI/DUI Officer must show up to prove the rest. If both officers do not both show for the hearing, the case is dismissed. If they show, then your attorney has a good opportunity to interview the officers in preparation for the defense against the DWI/DUI charges in criminal court where you have much greater rights, and many more opportunities to present a defense.

MVD License Revocation - Hearing Request.pdf

Collins & Collins, P.C.
http://www.collinsattorneys.com

When the police contact you for an interview, you need to understand the seriousness of your situation. The situation can be extremely stressful even when you know you are innocent of any wrongdoing. Many innocent people are charged with crimes every day. Those that have committed a criminal act will often make their situation worse through their statements. Worse yet, the accused whether guiltily or innocent will often provide the pivotal evidence against them.

Police investigators are masterful interviewers. Their sole purpose is to build full-proof criminal cases for referral to the district attorney. They are judged by their success in achieving this goal. Most take great pride in their effectiveness in building cases. Their success often turns on their interviewing skills, and their ability to extract confessions or other damaging statements against the accused.

The investigators will use a variety of interviewing or questioning tactics to get you to make damaging statements. These tactics are beyond the scope of this article but suffice it to say that speaking to the police without an attorney is rarely if ever in your best interests. You may make statements that you could not possibly anticipate could be used against you.

You do not have to talk to the police. You have the right to remain silent. Your 5th Amendment right against self-incriminations is among the most important rights that you have in criminal case. This right applies at every state of a criminal case from the criminal investigation all the way through trial. You should exercise this right.

The only thing that can hurt you more than giving damaging statements is giving false statements. Giving false statements to an investigator is itself a very serious crime punishable by imprisonment. A false statement may even be made inadvertently and these too may make a bad situation much much worse. Exercise your 5th Amendment right and decline to give a statement. To do otherwise poses too many risks.

Not surprisingly, people accused or suspected of a crime, believe that cooperating with the police will somehow help their case. Police and prosecutors pursue nice folks just as aggressively as they do the rude. Do not make the mistake of believing the investigator when he or she tells you that they are there to help clear things up, and that they can help you if you just make their job easier. You soon feel the acute sense of betrayal when you find the cop is not your friend, and is instead sitting before the jury testifying against you. Much of the basis of this testimony will be taken from your own statements.

Parrish Collins
Collins & Collins, P.C.
http://www.collinsattorneys.com

In the past, it was pretty well accepted in New Mexico metropolitan, municipal and magistrate court cases that the 6th Amendment Right to a speedy trial meant that the State had to bring its case to trial within 6 months. The Courts in Albuquerque followed this rule pretty closely. If the State failed to bring a case to trial within 6 months, the case was dismissed. The New Mexico Supreme Court threw this long established custom out in the case of State v. Garza (NM 2009).

In doing so, the court laid out some "guidelines" for speedy trial rights for the future. The guidelines are 12 months for simple cases, 15 months for cases with intermediate complexity, and 18 months for complex cases. The Court even took the teeth out of these requirements by saying that these guidelines were merely thresholds for further inquiry.

So what does this mean for you and your case? Suffice it to say it is not good. It is unclear how how this ruling will affect the criminal trial process in Albuquerque and throughout the courts of New Mexico. The standard leaves so much to interpretation that it seems judges can pretty well disregard the speedy trial rights of defendants if they so choose. It means also that the district attorneys will become even more negligent in the prosecution of their cases.

Walk into any metropolitan, municipal or magistrate court in the State on any given day, and you will see case after case after case where the prosecutor has failed to provide discovery, failed to make witnesses available, failed to meet statutory deadlines, and largely failed to prosecute their cases in a diligent manner. When this occurs, the prosecutor would typically be given warnings about being prepared the next time. Many judges would dismiss the cases the next time if the prosecutors came unprepared again.

In the past, the speedy trial rule provided some check on prosecutor's negligence of their files. The prosecutors had a deadline that they had to meet and this prevented them from ignoring a file and their responsibilities as prosecutors and attorneys. It seems now that they are free to prosecute their cases at their leisure with no real deadlines to insure their diligence.

The case of State v. Garza does more than infringe the rights of the defendant, who must be present at each trial setting only to hear the prosecutor is not ready. The defendant life is put on hold now for what at least for now is an indeterminate amount of time left to the whim of the particular judge.

Many people are not sympathetic to criminal defendants. In fact, most are downright hostile. What these folks might consider is the costs to the taxpayer of prosecutorial negligence. For each and every hearing to which they come unprepared, they have tied up the resources of their own office since they must be present prepared or not. They have tied up in many cases the office of the public defender who is funded by the taxpayer. Then they are tying up an already overburdened court. For each hearing, there must be a judge who is paid handsomely for his or her presence. There are guards, bailiffs, secretaries, court reporters, interpreters, and a host of other court personnel depending upon the case. This is hugely expensive. And now in a time of budget crisis for government across our country, the prosecutor has been written a blank check at the expense of the taxpayer.

Perhaps the Supreme Court has given judges leeway to stretch the speedy trial period over an indeterminate time. However, judges on an individual basis must still manage their courtrooms. They must manage their budgets. Ultimately, they must answer to taxpayers. But on a more mundane level, they must answer to themselves. Playing fast and loose with the speedy trial rule will cause their caseload to grow as case turnover slows to a crawl. Hopefully, if not motivated to protect the rights of the defendant, the courts will at least be motivated to manage their own workload.

Collins & Collins, P.C.
Albuquerque Attorneys.