Albuquerque Criminal Lawyer Blog

A criminal defendant has a right to confront and cross examine the State's witnesses under the 6th Amendment. This is the chief weapon for domestic violence defendants in Albuquerque and throughout New Mexico. The refusal of the alleged victim to testify is the basis for the great majority of the dismissal of these types of cases. Unfortunately for defendants, this option may be very limited in the future as a result of the New Mexico Court of Appeals ruling in State v. Soliz.

The U.S. Supreme Court of Crawford v. Washington made the right to confrontation of witnesses more explicit when it ruled that a defendant has a right to confront any testimonial witness. The Court stated that when the witness is unavailable, any out of court testimonial statement made by that witness is inadmissible. The question becomes what is "testimonial"? Crawford set out some guidelines with the basic premise being whether or not the statements were given with an eye toward prosecution of the defendant.

The U.S. Supreme Court in Davis v. Washington set further guidelines on the term "testimonial." The Court in Davis stated that statements are non-testimonial if they are given with the primary purpose of assisting the police in an ongoing emergency. They are testimonial when there is no such ongoing emergency, and the primary purpose of the statement is to provide information potentially relevant to a subsequent criminal prosecution.

The New Mexico Court of Appeals in State v. Soliz had an opportunity to address the definition of testimonial witness in a domestic violence setting. State v. Soliz involved a domestic violence call to 911. Soliz girlfriend was frantic and crying when she told the 911 operator that Soliz had just attacked her, he had fled, he had pursued her with the instrument with which he had attacked her, and he was under the influence of drugs or alcohol.

The Court in Soliz followed Davis fining that the statements by Soliz' girlfriend were non-testimonial since made in an emergency situation for the purpose of gaining assistance from the police. Because they were non-testimonial, they were fully admissible at trial despite her unavailability. In fact, the girlfriend refused to testify or otherwise cooperate in the prosecution of Soliz. This frequently occurs in domestic violence cases.

The ruling in Soliz poses some real potential problems for domestic violence defendants in the future. In essence, Soliz will allow the State to go to trial on the back of a 911 call without the necessity of bringing the victim to trial. The lack of a victim has in the past been the primary means for getting these cases dismissed. This option is now severely curtailed by Soliz.

Many clients are very surprised when they are charged with DWI/DUI when their blood alcohol level is below the legal standard of .08. In fact, the police regularly arrest these drivers and the District Attorneys, particularly in Albuquerque, routinely prosecutes these "below the limits" cases. The District Attorney in Albuquerque brings DWI/DUI cases for drivers at .03 or .04. This practice is shocking to the driver who thought that he or she was behaving responsibly.

The New Mexico Court of Appeals has struck one more blow against these well-intentioned drivers in State v. Pickett. NMSA 66-8-102(A) states: "it is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." The Court cited approvingly the language in State v. Sanchez which stated "a person is under the influence ... if as a result of drinking [the driver ] was less able to the slightest degree...to handle a vehicle..." The court referred to this standard as "impaired to the slightest degree," a term established in State v. Neal.

The Court stated that in order to convict the Defendant, the State needed only prove that the defendant was less able to the "slightest degree" to safely operate a vehicle. Remarkably, the court allowed in otherwise inadmissible evidence for the determination of impairment to the slightest degree. Though the breath test scores could not be admitted, the test was allowed to be used to show there was alcohol in the defendant's system.

Essentially, an officer will be able to make the determination of impairment to the slightest degree at his or her discretion. The officer may conduct field sobriety tests which are horribly subjective, and susceptible to abuse. Then on the basis of what the officer determines weak fields sobriety tests, the officer may then take the blood alcohol tests. The catch for the driver is that if you refuse, your license is automatically revoked even if you win your trial.

Once the officer determines there is alcohol in your system, and that you performed poorly on the field sobriety tests, he may arrest you and charge you with DWI/DUI. This absolute discretion on the part of the officer is the basis for the below the limits cases that we are now regularly seeing in court at levels as low as .03. And the District Attorney is prosecuting these with the same level of zeal as an aggravated DWI/DUI.

The problem is clear. I think history has shown that it is not a good idea for civil rights or liberty to allow police officers absolute discretion. The potential for abuse is too great. And though the great majority of police officers are honest and conscientious, there are bad apples as in any profession. A dishonest mechanic is just painful on the wallet. Police officers have the power to destroy lives on what amounts to the most vague possible standard that could be drafted for DWI/DUI.

On every criminal charge filed in Albuquerque or anywhere else in New Mexico for that matter, an Order Setting Conditions of Release will be issued. The Order is pretty standard for the most part. The Order will prohibit the possession or consumption of alcohol or illegal drugs, the violation of any laws while out on release, driving without a valid driver's license, or the possession of firearms or other deadly weapons. Finally, the Order will prohibit contact with the alleged victim(s).

These Orders Setting conditions of release are taken very seriously by the judges throughout New Mexico, and especially in Albuquerque. Violation of the conditions can result in arrest and worse a hold until the date of trial. The condition that stings the most in domestic violence cases is the Order prohibiting contact with the alleged victim. Often, the alleged victim does not want to pursue the charges. There are many cases when the alleged victim did not even call the police. Instead, a neighbor may have called in a domestic violence call. Frequently, the alleged victim will flat out explain to the police that nothing happened, and there was no domestic violence.

An arrest is made anyway as a matter of law enforcement policy. The police officer simply will not take the risks of leaving both parties unattended at the scene of a possible domestic violence. There are too many high profile cases where this was done, and one of the parties was badly injured or even killed.

The arrest of course kicks in the criminal process and the no-contact order. The defendant is now prohibited from returning to the home. This places enormous emotional strain on the couple or family. In addition, the financial consequences can be disastrous.

So what should you do? This is a hard question to answer and an even harder decision to make on your part. You can file a Motion to Modify Conditions of Release. This requires both your appearance and the appearance of the alleged victim in court before the judge. Once the alleged victim appears, the District Attorney, and sometimes the Court, will strongly insist that the alleged victim appear for all future court appearances. The prosecutor may even insist on regular contact between the alleged victim and the prosecutor's office. This keeps the alleged victim under the control of the District Attorney and almost insures the alleged victim's appearance in Court on the date of trial.

Why is this a problem? Many of the cases described above get dismissed eventually because the alleged victim does not want to pursue the charges, and will avoid the District Attorney to avoid being forced to proceed on questionable or baseless charges. Once the District Attorney has made contact with the alleged victim, the greater the chances are that the District Attorney will coerce the attendance of the alleged victim even by threat of contempt, or the threat of charges against the alleged victim for making false criminal charges.

Thus, the reluctant alleged victim who knows full well the call to the police and the consequent criminal charges should not have been made will show up for court out of fear of reprisal by the District Attorney for their refusal to cooperate. Thus, in the end, you are faced with the decision of modifying the conditions of release which on the one hand allows you to legally go home while on the other greatly increasing your chances of a full blow trial.

There is a stir in Santa Fe over the fact that two drivers involved in high profile DWI/DUI fatal accidents have kept their driver's licenses. Carlos Fiero, a prominent lawyer and lobbyist in Santa Fe, is accused of vehicular homicide in the DWI/DUI related death of a Santa Fe man outside a popular Santa Fe bar. Scott Owens is accused of driving the wrong way on a Santa Fe road killing several teenagers in a head-one collision.

Both men still have their driver's licenses despite the mandatory MVD license revocation under New Mexico's Implied Consent Act. MVD and the sheriff's office both deny responsibility. The Sheriff has indicated that the normal Notice of Revocation was not issued along with a DWI/DUI charge because the DWI/DUI charge might have somehow allowed the defendant's to walk in and plea guilty to the DWI/DUI charges while escaping the vehicular homicide charges.

Typically, a Notice of Revocation is issued upon arrest of an individual for DWI/DUI following a breath alcohol score or .08 or greater, or a refusal to take breath alcohol test. The revocation is mandatory no matter what happens on the DWI/DUI charges. Even if the driver wins at trial, the breath score of .08 or a refusal results in the mandatory revocation of the license. Vehicular homicide almost by definition carries with it a charge of DWI/DUI.

As such, the arguments from both MVD and the Sheriff make little sense. In fact, this was probably an administrative error. The sheriff either failed to issue the Notice of Revocation, the notice of hearing did not go out, the hearing was not set within 90 days of the arrest, or the hearing simply was not set at all. MVD hearings are a mere formality for the revocation of a license. The only way one keeps a driver's license under the Implied Consent Act in Mr. Owens' or Mr. Fiero's situation is by administrative error, which is what appears to have occurred here.

Continued Assault on the Rights Against Unlawful Search & Seizure

The 10th Circuit Court issued another remarkable ruling that continues the assault on the rights of individuals to be free of unlawful search and seizure. In U.S. v. Roach (10th Cir. 2009), the court ruled that although a warrant lacked probable cause, the evidence seized during the unlawful search is admissible so long as the officers acted in good faith.

An affidavit was issued in support of the warrant from the federal magistrate. The affidavit failed to establish probable cause that the defendant was a member of the gang under investigation. The affidavit also failed to establish that the defendant even lived at the residence that was to be searched. In fact, the residence was the defendant's girlfriend's residence.

The unlawful search unsupported by probable cause for the warrant resulted in the seizure of a variety of drugs and firearms. The defendant moved to suppress the illegally obtained evidence. The motion to suppress was denied.

In U.S. v. Roach, the 10th Circuit Court of Appeals upheld the denial of the suppression motion. In doing so, the court acknowledged a warrant should issue only on probable cause. The Court further stated that there must be probable cause to believe that a crime has been committed, the defendant committed the crime and that the place to be searched has some connection to the crime. The court stated that probable cause could not be built upon hunches.

Then despite the very clear state of the law the Court ruled that suppression of the evidence must be refused if the officers executing the warrant relied in good faith on the authorization of the magistrate.

This is pretty remarkable circuitous reasoning clearly directed toward further restrictions on the rights against unlawful search and seizure. After all, did the officers themselves not provide the magistrate with the affidavit upon which the warrant was issued? So the officers are relying upon the magistrate who issued the warrant who relied upon the affidavit provided by the officers. In short, the officers have relied upon their own faulty affidavit which failed to establish probable cause. How can this ever be construed as good faith?

Many of the Courts and Prosecutors around New Mexico, including Albuquerque and Rio Rancho have Pre Prosecution programs for certain felony offenders. These programs are restricted to first time non-violent, non-drug trafficking offenders.

If you are charged with a non-violent, non-trafficking felony offense, and you have no prior criminal history, you may be eligible for Pre Prosecution Probation. If you are accepted into the program, the charges against you are dismissed, and you are placed on probation for one to two years. These programs are very beneficial to both the offender and to the State. The program saves the offender from consequences of a felony conviction. The program saves the State the costs of prosecution, supervised probation or imprisonment of qualified first offenders.

The real hurdle to getting into the program for many is that the program requires an admission of guilt or responsibility for the charges. Many individuals have a very hard time with these admissions when they feel that they have been wrongfully accused. The decision is made more difficult by the fact that the admission can later be used against the individual if admission to the program is denied or if the person is expelled from the program for a violation of its terms.

Once admitted, the person must comply with all the conditions of the program including community service, full time employment or school, random drug testing, regular reporting to the probation officer, a prison tour, and payment of all probation costs and drug tests costs. A person faces expulsion from the program for violation of these terms. In addition, a person can be expelled for any felony charge, a charge of DWI/DUI or a charge of Domestic Violence.

Though the terms may seem harsh to some, they are far less severe than a conviction or regular probation. The benefit of escaping a felony conviction for most makes the program worth doing.

Domestic Violence in Albuquerque is taken very seriously. The District Attorneys in Albuquerque, and many others throughout New Mexico have a very strict policy against dismissing domestic violence cases no matter how weak the evidence. In fact, they rarely dismiss a domestic violence case even when it is perfectly clear that there was no act of domestic violence committed.

This position seems unreasonable to most, particularly those caught up in this policy. The policy is extremely frustrating for those wrongfully accused and forced to endure a wrongful prosecution. Often times, even the alleged victim suffers the severe financial and emotional consequences of these policies. In short, a domestic violence proceeding is extremely stressful, and a even just the charge of domestic violence can have significant consequences.

This is true for U.S. citizens. The consequences for non-citizens can be disastrous. A conviction for domestic violence can result in deportation and inadmissibility of non-citizens. There are few options for domestic violence cases. Typically, the most a district attorney will offer is Early Intervention Program. This program ultimately results in a dismissal. However admission to the program requires an admission of responsibility. Some judges require an admission of guilt.

These admissions can trigger the immigration consequences of deportation and inadmissibility. As a result, Early Intervention Program is probably not an option for the non-citizen. An admission of guilt is simply not an option for the non-citizen. Often, the only option for the non-citizen is a trial. And any trial carries risks due to the unpredictable nature of jury trials, or bench trials for that matter.

If you are not a citizen and you are facing domestic violence charges, you need to be very careful about taking any kind of plea. If you have the resources, you should seek the assistance of both a criminal attorney and an immigration attorney so that you can understand and weigh all of your options. Be careful, or you may feel the fleeting joy of what is seemingly a beneficial outcome of your case, as you soon learn that you are now subject to deportation.

The New Mexico Supreme Court in State v. Ochoa clarified the rights of privacy in a car. The New Mexico constitution allows for New Mexico courts to expand on the rights against unlawful search & seizure afforded under federal law.

Under federal law, there is a lower expectation of privacy once a person enters into an automobile. The justification for the lower level of privacy in an automobile under federal law is that the inherent mobility of an automobile creates greater need for an immediate stop to prevent the loss of evidence.

New Mexico acknowledges the reasoning but rejects the conclusions of the U.S Supreme Court in Whren. Instead, Ochoa states that warrantless searches are per se unreasonable. The State bears the burden of proving the stop and the ensuing search were reasonable.

The Court in Ochoa explains that the greater protection from unreasonable search & seizure in an automobile is a distinct characteristic of the laws of New Mexico. Ochoa explicitly rejects the suggestion under Whren that a person's expectation of privacy is lessened in a car.

Finally, the court stated that though there are exceptions to the warrant requirement, the same standard requiring exigent circumstances to conduct a warrantless search are present in a car as in a person's home. Exigent circumstances justifying a warrantless search exist only where delay in obtaining a warrant will jeopardize the legitimate interests of law enforcement.

A mere hunch as present in Ochoa is simply not enough.

It is unlawful in New Mexico for a police officer to stop you under the pretext of a traffic violation for the purposes of investigating another unrelated crime. The law of New Mexico goes further in protecting its citizens against unlawful search and seizure under these circumstances than federal law under the U.S. Supreme Court decision of Whren v. United States.

Under Whren, it is allowable for a police officer to stop someone under the pretext of a traffic stop in order to investigate them for something entirely different, such as possession or distribution of narcotics. New Mexico through State v. Ochoa recognizes the danger of allowing such searches. In the Ochoa case, the police officer suspected an individual of possession of narcotics. He lacked any verifiable proof, and he lacked a valid warrant to search the vehicle. Due to his hunch, and despite the lack of a warrant or other evidence of possession, he called the vehicle in on a traffic violation, and the car was stopped by another officer. Indeed, there were drugs in the vehicle.

The Court in Ochoa recognizes that due to the huge volume of possible traffic offenses, we are all in violation of at least one traffic law at any given time. Allowing a police officer to stop someone to investigate an unrelated crime under the pretext of a traffic violation would basically nullify our rights against illegal search and seizure while in our cars. We would be at the mercy of the whim of any particular officer while in our vehicles. Police officers would be free to search our vehicles at their leisure since they would need only articulate any one of hundreds of possible traffic violations. It would not take much of an imagination to come up with a reason to stop a vehicle. There would be no protection at all from the search of our vehicles. Every citizen, both guilty and innocent, would be subject to abusive police practices. The right to privacy in our vehicles would have little meaning.

Fortunately, the Supreme Court of New Mexico recognized the potential for abusive police practices under Whren. The court laid out some guidelines. The Court in Ochoa stated that in determining whether or not the stop was pretextual, the Courts should consider the totality of the circumstances, the credibility of witnesses, and the weight of the evidence. The totality of the circumstances includes a consideration of the both the objective reasonableness of the officer's actions and the subjective intent or what the Court described as the "real reason" for the stop.

The burden of proving pretext is on the defendant. However, if it is found that the stop was not reasonable from its inception, any evidence discovered during the illegal stop will be excluded.

The Supreme Court of California announced that the Supreme Court of California, the Courts of Appeal and the Superior Courts would be closing on the third Wednesday of each month. The court closures are the result of California's ongoing budget crisis.

It is estimated that this move will save the state $94.3 million for the State. The amount of projected cost savings suggests the huge costs of running a Court system on a daily basis. The closures will amount to only 12 days of closure per year, putting the daily costs at $7.86 million. These cutbacks will cause ever greater strain on an already burdened court system.

Though the Court system in New Mexico is a small fraction of the size of California's, the costs of the court system is enormous. In addition, the state's budget is only a small fraction of the size of California's. So in relative terms, New Mexico may be facing an even greater burden.

The New Mexico Courts have already begun throughout the state to cut back on the hours for administrative services such as the clerk's offices. The courtrooms have yet to be impacted but it seems that they will at some point.

Yet while the Courts are facing ever more challenging budgets, the practices in the criminal justice system have yet to respond to the looming crisis. Police and prosecutors continue to prosecute DWI/DUI cases that are below the legal limit. Police and prosecutors are regularly bringing cases at .04 to .06 breath alcohol scores, sometimes even below .04. There is a similar policy among some prosecutor's offices of relentlessly pursuing domestic violence actions even when there is a total lack of foundation or merit. These practices, in addition to being manifestly unjust, place a huge burden on the Courts and the taxpayers of New Mexico.

Perhaps the upside of the economic downturn will be that the police and prosecutors will be forced to more honestly and fairly evaluate the merits of their cases before burdening the Courts with frivolous criminal proceedings. Perhaps, police will be less enthusiastic about pursuing these cases when overtime pay is capped and there is no financial incentive to pursue these cases. Perhaps prosecutors will be less inclined to pursue these cases as their own budgets begin to shrink. Perhaps the Courts themselves will hold the prosecutors and police more accountable to the taxpayers and be quicker to dismiss meritless actions. We can hope.

Collins & Collins, P.C.
www.collinsattorneys.com

In New Mexico, a person has a right to defend himself and his home against harm. The long cherished rights of self-defense are clearly established in New Mexico under the State's Uniform Jury Instructions.

New Mexico General Jury Instruction on Self-Defense UJI 14-5190 states that "A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." New Mexico UJI 14-5180, related to defense of one's property, states that a person may use force that he deems reasonable and necessary to defend his or her property. Of course, the issue will be whether a jury believes the force was reasonable and necessary.

The issue of self-defense will certainly be an issue in the case reported yesterday about the Johns Hopkins University Student who killed an apparent burglar with a samurai sword. The burglar had broken into the student's apartment where he lived with several other students. Upon being confronted by the students, the burglar lunged at the students whereupon he was struck down by the samurai sword.

There is no jury instruction in New Mexico dealing with the flair or style in which one defends his or herself. It seems that this cannot be counted for or against you. So the use of a samurai sword should be deemed irrelevant without more. The Uniform Jury Instructions would seem to indicate that the student not be charged. Unfortunately, there is more to it than that and it is possible that the student will be charged with something, and something quite serious such as homicide or intentional manslaughter, and it will be left to him to assert his defenses. In New Mexico, the outcome would likely be much the same. Fortunately, the student will be armed with the long standing and rather sacred right to defend oneself and one's home from harm.

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

Domestic Violence can be very serious, and often it requires immediate law enforcement intervention to protect the parties. The police, the courts and prosecutors take it very seriously as well. Often, however, the person making the call does not realize how seriously it is taken. It happens all the time. During the heat of an argument, one of the parties calls the for a any number of reasons other than a real threat to his or her safety. Frequently, there is no violence, threats, or harm of any kind other than hurt feelings. No act of domestic violence has in fact occurred under the Statutory Definitions of Domestic Violence in New Mexico. The party calling the police has called for the wrong reasons whatever those reasons may be.

Immediately, the caller realizes the mistake that he or she has made. Typically, the other party is arrested. On occasion, the caller is arrested. Inevitably, somebody is arrested. Police officers do not make courtesy calls for domestic disputes. They don't show up to help the parties talk out their problems. Somebody is leaving the home in handcuffs. It often does not matter that the caller recants sometimes begging the police not to arrest their partner or spouse. It doesn't matter later when the caller contacts the prosecutor explaining that he or she does not wish to prosecute. The criminal justice system has been set in motion and the couple is in for a long, stressful and often expensive ride.

I get the call all the time where my client explains that his or her partner does not wish to pursue the charges. In fact, these are generally the first words from my clients mouth in cases of domestic violence. Despite the lack of reason or rationality, and even in the face of clear evidence that there was no domestic violence, prosecutors generally will not drop the charges. Instead, my client and his or her partner or spouse must endure the long and often frustrating criminal justice process as the case makes its way through the system.

This is the bad news. The good news is that eventually these types of case generally get dismissed. In the end, the prosecutor cannot prosecute a case without a cooperative victim. Typically, these cases will get dismissed due to the refusal or failure of the alleged victim to appear in court. The prosecutor can, and will in serious cases of domestic violence, subpoena the victim to court. However, if it does go to trial, and the victim testifies that there was no act of domestic violence, then the client will be found not guilty.

The problem is that this process takes up to 6 months before the case is finally dismissed or taken to trial. In the meantime, the client and the partner or spouse must suffer the emotional and financial stresses of court. Worse yet, the parties may be prohibited from contact during this entire time period placing enormous financial and emotional strain on the parties and their family.

So what is the lesson here? Don't call the cops unless you really need them. If you need marital counseling, get it. Cops are a very poor and expensive alternative to counseling.

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

In the past, the federal government did not recognize medical marijuana laws in the 13 states that now have such laws. The result was that the federal government would prosecute aggressively those folks engaged in medical marijuana distribution despite the fact that their state allowed it. Attorney General, Eric Holder, quietly has announced that the federal government would no longer engage in these practices.

Instead, the federal government will now respect the laws of the states and will not preempt local law with federal drug policy. New Mexico and 13 other states have breathed a sigh of relief as their citizens can now rely on the law in their state.

New Mexico now has the first state-licensed medical marijuana farm and distributor. The law has been up and running for 2 years allowing medical marijuana in New Mexico. However, the state has moved cautiously awaiting the announcement of the new production and distribution program.

Despite its youth, the program has been hugely successful. The farm cannot keep up with demand. The farm is generating substantial revenue for the state helping to relieve the enormous budgetary strains that the state now faces. Yet the beat goes on with police and prosecutors continuing to prosecute simple possession of marijuana cases and possession of paraphernalia cases. Lives continue to be ruined through the criminal justice system as the State carves out a cottage industry in the production and sale of marijuana.

The DWI Resource Center has utilized six years of crash data to map DWI/DUI hotspots around Albuquerque. The mapping technology identifies frequency, locations, time periods, dates, days of the week, and even holidays to determine the highest DWI/DUI risks for any particular day.

Law enforcement representatives are very excited about the potential for the technology for identifying DWI/DUI drivers. Law enforcement plans to use the data to set up DWI/DUI checkpoints in the near future.

Though the mapping technology has not been fully implemented, 12 New Mexico agencies have begun utilizing the program in the past month. The 10 worst intersections over the Labor Day weekend have been identified and published illustrating the applications of the technology:

1. Wyoming Blvd, NE & Constitution Ave, NE
2. San Mateo Blvd, NE & Pan American East Highway, NE
3. Griegos Road, NW & 2nd St., NW
4. Pan American East Highway, NE & Montgomery Blvd, NE
5. Pennsylvania St, NE & Montgomery Blvd, NE
6. Irving Blvd, NW & Coors Blvd, NW
7. San Mateo Blvd, NE & Montgomery Blvd, NE
8. Louisiana Blvd, NE & Central Ave, NE
9. Wyoming Blvd, NE & Menaul Blvd, NE
10. Osuna Rd, NE & Jefferson St, NE

You can bet that there will be a DWI/DUI checkpoint at these intersection in the weeks to come. DWI/DUI in Albuquerque is taken very seriously in . The mapping technology will continue to identify other high risk areas. As the technology and its use is perfected, it will be very risky to hit the road after a few drinks. Driving drunk will require a great deal more strategic planning for the drunk driver. Unfortunately, this sort of foresight is often lacking while under the influence of alcohol.

In short, it's not worth the risk. Don't drink and drive. The Consequences of DWI/DUI conviction are just too great. And the risks of detection just got higher.

Last year, the New Mexico Court of appeals ruled in State v. Anaya ruled that a legal U-turn prior to a DWI/DUI checkpoint at a sign announcing the checkpoint provides no more than a generalized suspicion of DWI/DUI. Without more, the Court of Appeals determined that a U-turn alone prior to a checkpoint is insufficient to create reasonable suspicion for the stop of the driver, and an ensuing DWI/DUI investigation. As a result, the DWI/DUI conviction in the case was reversed.

The Supreme Court of New Mexico has now overturned that ruling. The Court ruled that the circumstances surrounding the U-turn suggested evasion of the checkpoint and provided the reasonable suspicion for the stop. As a result, the conviction was reinstated.

The state of the law after the Supreme Court ruling in State v. Anaya is that making a U-turn in proximity to a DWI/DUI checkpoint is grounds for a stop. In fact, it should be assumed that any discernible evasive action to avoid a checkpoint will result in the stop of your vehicle.

The Supreme Court's ruling coupled with the new mapping technology for more effectively establishing DWI/DUI checkpoints makes drinking and driving a very high risk endeavor. The new technology will allow law enforcement to identify the highest yielding checkpoints. The new level of effectiveness of these checkpoints will make avoiding them even more difficult. Avoiding them at the scene will result in a stop.

A DWI/DUI conviction in New Mexico has severe consequences. The DWI/DUI process is long and stressful even if you do win your case. Do yourself a favor and find a designated driver. It just is not worth it.

If you are charged with a crime and you are not a United States citizen, you could be facing some very serious immigration consequences. If fact, the immigration consequences could be much more serious than the criminal punishment.

On many occasions, a criminal attorney will fail to appropriately consider the immigration consequences of the criminal charges. Many times, the criminal attorney is surprised himself to hear of the severe consequences of seemingly trivial crimes. On still more occasions, the criminal attorney is able to work out would otherwise be a great plea for the client. The plea might even result in the ultimate dismissal of the case, yet the client is still facing deportation for the crime.

The law is fairly complex and common sense does you no good in this area of the law. For instance, in many cases where the chances at trial are not good for the client, an attorney will work out a conditional discharge or a deferred sentence. In each of these situations, the charges are eventually dismissed upon the completion of the terms of probation. Unfortunately, both these deals require that a defendant plead guilty to the charges before the plea will be accepted by the court. The plea of guilty despite the later dismissal is enough to trigger deportation for deportable offenses.

Even more surprising to many defendants, and many attorneys, is the fact that relatively trivial offenses, even petty misdemeanors can trigger deportation. This same result occurs even with residents that have been in the United States for decades, established businesses, purchased homes, raised families and had no other prior legal problems.

It is surprising to learn that a relatively minor charges can result in deportation while far more serious crimes have no immigration consequences at all. The immigration consequences depend on the classification of the crime. The classification of a crime as a crime of moral turpitude carries the most severe and seemingly unfair penalties.

Crimes of moral turpitude can have shocking immigration consequences. Instincts or general impressions of the seriousness of the crime are unreliable. A good and rather common example of a trivial crime classified as a crime of moral turpitude is petty larceny or shoplifting. Even petty shoplifting is a crime of dishonesty which carries the classification of crime of moral turpitude. This means you can be deported for conviction of a shoplifting. Not only that, you can be deported even if you are not technically convicted.

Due to the classification as a crime of moral turpitude, you may have the luxury of many possible common and otherwise favorable pleas. In many cases, a prosecutor would offer a variety of different plea options. Many of these would result in a dismissal of the charges. Unfortunately, a dismissal is not enough. Often the plea itself, in contemplation of an eventual dismissal, requires an admission of guilt to the shoplifting offense. Despite the ultimate dismissal, the admission of guilt alone creates a removable offense. This same outcome occurs in many other otherwise outstanding plea bargains.

There is a long list of crimes of moral turpitude. You must know from the outset if your crime is on that list of deportable offenses. If it is, then the entire defense strategy will change. Unfortunately, you may be forced to go to trial on a case that almost always plea if it involved a United States citizen.

To properly defend you, you must inform your attorney of your immigration status from the first moment you meet. Your citizenship may not be apparent, and the attorney may not think to ask. The defense strategy from the very beginning of your case should properly account for the immigration consequences. Failure to inform your attorney of your immigration status could seriously harm your future in the United States.

So what should you do are not a citizen of the United States and you are charged with a crime? You should inform your attorney of your immigration status the first time you speak. You should remind your attorney of your status throughout the process. Most importantly, you should insist that your attorney thoroughly consider the immigration consequences in the defense strategy and in consideration of any plea offers. If your matter is particularly confusing or complex, then you may need to enlist the services of both a criminal attorney and an immigration attorney.

Don't be in the position where you have won the battle in addressing the criminal charges, while losing the war and everything else you hold dear in this country when you are eventually deported.

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