Albuquerque Criminal Lawyer Blog

The U.S. Supreme Court refused to hear a case involving a DWI arrest based upon an anonymous tip. Albuquerque and Bernalillo County officials appear unconcerned with the Court's ruling. Bernalillo County Sheriff Darren White stated "Believe me, I can tell you when a person's impaired."

The case itself involved an anonymous tip where the driver was pulled over despite the fact that the officer had not observed any indications in the driver's driving behavior indicating DWI/DUI.

The fact is a stop like the one in the Virginia case would plainly violate the requirement of reasonable suspicion for a DWI/DUI stop. Without the reasonable suspicion requirement, officers would be free to pull drivers over without any reason whatsoever. The hazards and possible abuses are clear allowing officers to pull over drivers for countless illegitimate reasons.

Darren White states further that New Mexico law protects the innocent driver who has swerved in a traffic lane, but is not under the influence. What Sheriff White fails to appreciate is that many innocent drivers may be subject to illegal stops based upon ill motivated anonymous tips. Little imagination is required to understand the many possible motivations that might lead to an illegitimate anonymous tip.

In fact, there is little protection for the innocent driver as Sheriff White suggests. Instead, a stop lacking reasonable suspicion results in a gross violation of privacy, and the right against unlawful search and seizure. The result is that many innocent drivers can be pulled over and subjected to the stressful, embarrassing and humiliating battery of DWI tests so that they must prove they are not under the influence to a police officer who may already be convinced or otherwise biased toward a finding of DWI/DUI.

In fact, New Mexico law, which thankfully applies to Albuquerque Police and Bernalillo County Sheriffs despite Sheriff Whites apparent belief to the contrary, requires that the stopping officer actually observe driving that indicates DWI/DUI. An anonymous tip is not sufficient for a stop. Of course, it takes very little effort on the part of a determined police officer to find a reason for a stop. With the rash of under the limits DWI/DUI arrests in Albuquerque, and the recent revelation of DWI/DUI quotas for Albuquerque Police Officers, this requirement offers little real protection or comfort for Albuquerque drivers rendering the right of privacy and protection against unlawful search & seizure in our cars meaningless.

A recent article in the Albuquerque Journal points out a DWI Quota for police officers on the Albuquerque Police Department's DWI Unit. DWI officers are required to make 2 DWI/DUI arrests each shift. This quota may be contributing to the rash of below the limits DWI arrests in Albuquerque.

Most citizens believe that the standard for DWI is a breath alcohol level of .08 or higher. This belief is rightfully justified as .08 has traditionally been the standard for a DWI arrest. In fact, many well-intentioned citizens have bought their own breath alcohol measurement devices so that they can insure that they don't violate the law.

There is a disturbing trend in Albuquerque where drivers are being arrested for breath alcohol levels well below the .08 limit. There are cases of drivers be arrested at .03 and .04. The law actually allows this through the extremely vague alternative standard to the .08 standard of "impaired to the slightest degree." 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 New Mexico Court of Appeals has reaffirmed this loose and vague standard in State v. Pickett. The Court in Pickett cited approvingly the language in State v. Sanchez stated that a driver is under the influence of alcohol "if as a result of drinking [the driver ] was less able to the slightest degree...to handle a vehicle..." The court coined this standard as "impaired to the slightest degree" as established in State v. Neal.

This trend seemed driven by an overzealous DWI policy where drivers were arrested for the mere presence of alcohol in their system. It seemed also to be related to the desire for Albuquerque DWI Unit Officers to maximize their over-time hours and over-time pay.

The DWI quota is a new and even more disturbing incentive for illegitimate DWI/DUI arrests. Clearly, the Albuquerque DWI Unit officers are pressured into making illegitimate arrests as a result of the quota. Their job performance and continued assignment to the Albuquerque DWI Unit depend on meeting these quotas.

The Supreme Court of New Mexico overruled the New Mexico Court of Appeals in State v. Anaya. The Court of Appeals had ruled that evasion of a DWI/DUI Checkpoint was not an illegal act and therefore could not provide the reasonable suspicion necessary for an investigatory stop. The New Mexico Supreme Court ruled that the surrounding circumstances and the evasion of the a checkpoint itself gave rise to a reasonable suspicion of DWI/DUI and thus was sufficient foundation for the investigatory stop.

State v. Anaya involved a DWI checkpoint set up outside of Farmington. The highway leading up to the checkpoint was well marked with cones, droplights, emergency lights, and signs indicating to approaching motorist the presence of the checkpoint. The defendant, Anaya, upon seeing the checkpoint, made a legal u-turn to avoid the checkpoint. She was pulled over by a police officer who was stationed nearby for these very purposes.

Anaya attempted to suppress the evidence gathered during the stop arguing that the stop constituted an illegal search and seizure in violation of the 4th Amendment. The trial court denied the motion. Anaya entered a no contest plea reserving the right to challenge the constitutionality of the stop.

The New Mexico Court of Appeals sided with Anaya finding that the u-turn was not a violation of law, nor was evasion of a DWI/DUI checkpoint without more a violation of law. As such, the u-turn and evasion of the checkpoint was insufficient for the investigatory stop. The Court also found that the checkpoint was constitutionally unreasonable under Las Cruces v. Betancourt (NMCA 1987). The Supreme Court found otherwise finding that the checkpoint was indeed reasonable and legal under the law, and further that evasion of the checkpoint itself provides reasonable suspicion for a investigatory stop.

Legalization of marijuana is picking up steam in California. It is expected that there will be enough signatures to get the measure on the ballot in 2010. Possession of marijuana remains a crime under federal law. Possession of marijuana remains a crime in New Mexico, classified as possession of a controlled substance. The police in New Mexico continue to make arrests for marijuana. Likewise, they continue to allege intent to distribute for relatively small amounts of marijuana.

All the while the State of New Mexico continues to move forward with its groundbreaking medical marijuana program. There has been a shortage of medical marijuana. There has to date been only one licensed grower and distributor. There are currently 25 applications for non-profit licenses for the production and distribution of medical marijuana. Seven of these applications have been forwarded to the New Mexico Department of Health Secretary Alfredo Vigil.

There is bound to be a clash between the States of New Mexico and California and the Federal Government. The U.S. Supreme Court also has ruled that federal law enforcement agents have the authority to enforce and prosecute the federal laws against the production, sale and possession of marijuana even against state sanctioned programs. It is unclear whether the federal government will be able to force the cooperation of state and local governments in these activities. Without the assistance of state and local law enforcement, the federal government would be hard pressed to enforce the federal laws in California, a state of 40 million. The numbers are telling. In 2008, there were 847,000 marijuana related arrests. Only 6300 of these were made by federal law enforcement, representing less than 1% of the total.

It remains to be seen if New Mexico will follow the lead of California. Or will limit the legal use of marijuana to medical purposes thereby continuing to criminalize a harmless and common activity. The harm to otherwise law-abiding citizens goes well beyond the criminal penalties, which can be fairly severe in the case of possession of 8 ounces or more, which is classified as a 4th degree felony, and possession with intent to distribute which is at a minimum a 4th degree felony. Conviction can impact not only employment, but education since some convictions carry with the disqualifications for federal student loans or other aid.

The 10th Circuit Court of Appeals reinforces the long held and cherished 4th Amendment right against unlawful search and seizure in the unlawful intrusion by police into an Albuquerque home.

In Manzanares v. Higdon, Albuquerque Police officers came to the home of the Defendant Manzanares for the purpose of investigating Manzanares' co-worker in a rape case. The Albuquerque Police Officers first arrived at the home of Manzanares at 5:50 AM in the morning. From the beginning, Manzanares was very cooperative with the Albuquerque Police officers, allowing them into them into his home, and providing helpful information into the identify and location of the alleged rapist. The police continued with the interrogation for hours on end until finally Manzanares asked that the police leave his home. The police refused to leave, instead handcuffing Manzanares as they continued to interrogate him.

Manzanares brought a civil lawsuit against the police under the 4th Amendment for Illegal Search & Seizure. The jury ruled in favor of Albuquerque Police Officer Higdon on all counts. Manzanares filed a Motion of Judgment as a Matter of Law. This Motion was denied by the trial court. Manzanares filed an appeal to the 10th Circuit Court of Appeals. The 10th ruled in favor of Manzanares that his 4th Amendment rights were violated as a matter of law.

The police officers argued that officers argued the encounter constituted an investigative stop and that his detention was needed to prevent his interference with the investigation. The Court was not persuaded putting great emphasis on the fact that the seizure occurred in Manzanares home. The Court recognized that Manzanares consented to the entry of the police into his home. However the court stressed that his consent could be withdrawn at any time. The refusal of the Albuquerque Police officers to leave once consent was withdrawn amounted to an illegal arrest without probable cause in violation of the search and seizure clause in 4th Amendment.

The Court emphasized the sanctity of the home stating, " It has been clear for nearly thirty years that a warrantless entry into a home...is presumptively unreasonable. The Supreme Court has consistently reiterated the famous refrain that a man's home is his castle and has preserved the home as the center of the Fourth Amendment's protections."

The court found that reasonable police officers would have recognized that their refusal to leave upon withdrawal of consent constituted a seizure. There was no warrant, no probable cause to believe a crime had been committed, and no extraordinary circumstances to justify their continued presence in Manzanares' home against his wishes. Once his consent to their presence was withdrawn, their refusal to leave was a violation of the 4th Amendment.

Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest. The recent New Mexico Court of Appeals decision in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls. Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant's phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant's attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant's Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody. The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

The lesson here is clear: Stop Talking and Hang Up the Phone. It is exceedingly unwise to voluntarily give incriminating statements to a police officer over the phone particularly when you initiated the call. Miranda will not protect you here.

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington. The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.

The International Drug Policy Reform Conference will be held in Albuquerque, New Mexico on November 12-14. The conference was held in Albuquerque in 2001. It returns because the presumably New Mexico is a "beacon of reform" because of its innovative Good Samaritan laws passed to prevent fatal overdose, and its medical marijuana initiatives.

There will be a variety of drug law reform advocates including doctors, lawyers, activists, educators and law enforcement. Much of the discussion will center on the recent tide of support for the legalization and regulation of marijuana.

The War on Drugs has clearly failed. The War on Drugs destroys the lives of otherwise productive, law-abiding citizens. It also enriches and empowers the drug cartels. The War on Drugs has never appreciably affected drug use. Instead, it has placed a huge tax burden on federal, state and local governments. The enforcement, prosecution and punishment of drug use costs the country billions upon billions of dollars per year. This is in fact probably the reason for the new enlightened views on legalization. With governmental budgets devastated by the ongoing recession, necessity has led to enlightenment.

It remains to be seen whether Albuquerque will live up to the honorary title of "beacon of reform." Neither the Albuquerque Police Department nor the District Attorney in Albuquerque have gotten the memo. Instead, marijuana possession continues to be prosecuted quite aggressively.

The potential penalties for possession of marijuana in New Mexico remain severe. Possession of marijuana in any quantity is still considered possession of a controlled substance. Misdemeanor possession of less than 8 ounces carries up to one year in jail. Felony possession of 8 ounces or more carries criminal penalties of up to 18 months in prison. Possession of more the 30 grams carries deportation consequences. A second offense of less than 30 grams carries deportation consequences. Hopefully, someone from City of Albuquerque will attend the International Drug Policy Reform Conference. They should at least be aware of their purported leadership role in this important trend.

The New Mexico Supreme Court ruled in City of Las Cruces v. Rogers that the City of Las Cruces has no authority to regulate DWI/DUI on private property under the City's DWI/DUI Code. In order to so regulate drinking and driving on private property, the City would have to gain written consent from the property owner. In the alternative, the driver should be charged under the New Mexico DWI/DUI Statute which is customarily the case. The driver cannot be charged for DWI/DUI on private property under the City Code.

The facts of Rogers are remarkable. The defendant was in a parking lot of a convenience store where she had purchased cigarettes. The police officer had followed her into the parking lot on the suspicion that she had been drinking and driving. As the defendant was preparing to drive away, the officer stopped her while she was still in the parking lot. The officer administered field sobriety tests which Rogers failed. Consequently, she was arrested and charged with DWI/DUI.

The Municipal Court dismissed the DWI/DUI Complaint. The city appealed to District Court which ruled that pursuant to City of Rio Rancho v. Young, and Section NMSA §3-49-1(O), the City could not enforce its traffic code on private property absent a showing of express written consent by the owner of the property. The case wound its way up to the Supreme Court through the Court of Appeals which upheld the District Court ruling.

The New Mexico Supreme Court agreed with the lower court rulings again citing Young and NMSA §3-49-1(O). The Court made the distinction between violations of state statutes and municipal statutes. Las Cruces had failed to charge the defendant under the State statute NMSA 66-8-102. Instead, the defendant was charged under the city ordinance which the Court agreed could not be done without the written consent of the property owner.

There is a small but growing trend toward the decriminalization of marijuana. Albuquerque and New Mexico, despite taking a lead on medical marijuana, lag behind the trend toward decriminalization.

Governor Arnold Schwarzenegger has indicated that legalization needs to be studied closely. Massachusetts voters approved a referendum decriminalizing marijuana. Denver has passed a law making adult marijuana possession the lowest law enforcement priority.

Other countries have gone much further. Portugal decriminalized all drug possession. The feared spike in drug use never materialized. Several Latin American countries are following the lead of Portugal including Brazil and Colombia, who have called on other countries in the region to follow suit. Surprisingly, there has been no reaction from the United States government when in years past these trends would have been met with severe diplomatic reactions.

The American people seem to accept marijuana use. Polls have shown that over 50% believe that marijuana should be legalized, taxed and regulated. These folks have it right. This approach would have numerous positive effects. First, it would bring tax dollars all but bankrupt governments at the Federal, State and local levels. Second, it would reduce the power, wealth and influence of organized crime which is a very serious threat to United States national security. Third, it would save State and local governments huge budgetary waste expended on enforcement, prosecution and punishment of this completely harmless crime. Finally, it would stop ruining the lives of those caught up in these senseless policies.

Despite these trends, and New Mexico's forward looking vision on medical marijuana, the State and Albuquerque in particular continue to take a hard stand on marijuana possession. Marijuana is still considered a controlled substance. Possession of marijuana is classified as possession of a controlled substance. Possession of less than 8 ounces is a misdemeanor, possession of more than 8 ounces is a felony. Even a charge for possession of a controlled substance can have devastating consequences to a defendant. A conviction can have many serious consequences beyond even the penal consequences.

New Mexico, and Albuquerque should take the lead here as they have in other areas such as immigration and medical marijuana. The current enforcement policies are barbaric to the those unfortunate enough to be caught in the system, and neglectful of responsibilities to our taxpayers.

Marijuana use in New Mexico and throughout the United States seems be generally accepted. Stories have appeared this month alone on the Today Show, Marie Claire magazine, Variety, and even Forbes depicting marijuana use in relatively favorable light. Forbes described the medical marijuana trend as a step toward the end of prohibition.

Many of our top political figures including Bill Clinton, Barak Obama, Mayor Michael Bloomberg, Arnold Schwarzenegger and even George W. Bush have admitted to smoking marijuana in the past. Yet more than 750,000 people are arrested every year on charges of marijuana possession. New York, where the mayor has admitted past marijuana use, leads the way with 40,000+ arrests each year.

The fact that law enforcement and prosecutors continue to bring these cases at great costs to taxpayers, and often catastrophic costs to the defendant, is disappointing to put it mildly. More disturbing, however, is the racial component of the arrests. Though Anglos smoke pot at higher rates than blacks or Latinos, and make up the majority of the United States population, the great majority of those arrested for marijuana are black or Latino. In New York, called the marijuana arrest capitol of the world, blacks and Latinos are 87% of those charged.

Possession of less than 8 ounces of marijuana in New Mexico is a misdemeanor. Possession of over 8 ounces is a 4th degree felony. Most possession charges fall in the misdemeanor category. Though misdemeanor possession my seem to some like a trivial criminal matter, marijuana is stilled considered a controlled substance. Possession of a Controlled Substance in New Mexico carries very serious consequences well beyond the penal consequences.

The trend toward medical marijuana and what Forbes describes as the end of prohibition cannot move fast enough for those unfortunate enough to be arrested for what is pretty well accepted by all a harmless act.