Albuquerque Criminal Lawyer Blog

You have a right to an independent blood alcohol test when you have been arrested for DWI/DUI in New Mexico. This right may prove more theoretical than real if you are unable to locate a facility or provider to take the blood draw.

Any Lab Test Now claims to be available 24/7 at (505) 319-6059. The organization will send out a certified phlebotomist to conduct the test. The test results are fully admissible in a DWI/DUI defense. The results are also admissible for the MVD license revocation hearing. A blood alcohol test is far more reliable than the breath alcohol test utilized by law enforcement which has a acceptable 10% error rate.

The test is free so long as you submit to the State's breath alcohol test If you refuse the State's breath alcohol test, you will be charged for the test. In addition, you will be responsible for all costs associated with getting the testing technician to court at trial.

Take the State's test, then get an independent blood alcohol test to insure accurate results. Insist on the BATDRAW independent blood alcohol test. Be vocal and leave no doubt that you made the request. As seen in State v. Duarte, any doubt in your request for an independent blood alcohol test will likely be construed against you.

You have the right to an independent blood test. You should exercise it if there are any doubts in your mind regarding the results of the law enforcement result. You should most definitely use the service if your results are close to .08 or .16 due to the recognized 10% error rate in the breath test. Clearly, you do not want the test if you are under the limit as the rate of error in the breath alcohol tests swings both ways.

The exercise could prove purely academic anyway due to New Mexico law that allows drivers to be convicted at levels below the legal .08 level, under the "impaired to the slightest degree" standard. However, it is far better to be fighting the "impaired to the slightest degree" than the statutory presumptive impairment above .08. And, anything over .16 puts you at a severe disadvantage due to aggravated DWI/DUI charges for levels over .16. In addition, .08 or higher virtually guarantees a revocation of your license by MVD.

Put this number in your phone., (505) 319-6059. Give to your friends and family. Hopefully, you will not need it, but if you do, you do!

www.CollinsAttorneys.com

The 10th Circuit Court Appeals addressed the 6th Amendment Right to a speedy trial in U.S. v. Seltzer. Though the constitutional protections under New Mexico law are typically more expansive than federal law, the 10th Circuit in the Seltzer case appears more respectful of the 6th Amendment than the recent New Mexico Supreme Court decision of State v. Garza.

In State v. Garza, the court set forth a sliding scale related to a criminal defendant's right to a speedy trial in New Mexico. The court suggested speedy trial parameters as follows: 1) 12 months for simple cases, 2) 15 months for cases with intermediate complexity, and 2) 18 months for complex cases. The New Mexico Supreme Court even allowed for some leeway in the these standards by stating that these time limits were mere thresholds for further inquiry.

The 10th Circuit in U.S. v. Seltzer set forth a number of considerations in the determination of whether or not a defendant's right to a speedy trial have been violated. The Court stated that a delay of more than one year from the date of arrest or indictment, whichever is earlier, was "presumptively prejudicial" to the defense. The court noted that in particularly complex cases, longer delays, even a two year delay might not be unreasonable. The court noted further that in straightforward cases, even a minor delay might be considered prejudicial and unreasonable.

The Court found that the charges against the defendant Seltzer related to counterfeiting, drug possession, and firearm possession by a felon were not complex and a delay of more than one year was presumptively unreasonable. The Court stated that even lesser delays might prove prejudicial in cases involving eyewitness testimony.

Once the presumption of prejudice has been found, it is up to the State to "provide an inculpable explanation for delays in speedy trial claims." The Court cited the 1972 United States Supreme Court case of Barker v. Wingo as follows: "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Thus the burden quickly shifts to the State to show a legitimate reason for any delay impacting the defendant's speedy trial rights. This burden becomes harder to meet in cases involving simple charges.

Unlike the New Mexico Court in State v. Garza, there is a heavy burden on the State to justify any delay impacting the defendant's 6th Amendment right to a speedy trial. New Mexico typically zealously protects the constitutional rights of its citizens. The protections under New Mexico's Constitution are generally much broader than under federal law. In State v. Garza, the burden appears to be on the defendant to prove prejudice, rather than on the State where the burden belongs. Hopefully, the New Mexico Supreme Court will take the lead of the 10th and revisit the 6th Amendment rights that are so important to due process and a fair trial.

www.CollinsAttorneys.com

New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

www.CollinsAttorneys.com

In the last post, I looked at how New Mexico Senator Michael Sanchez' Senate Bill 151 (SB 151) would eliminate the practice of arresting drivers found sleeping in their vehicles while intoxicated. Fortunately, Senator Sanchez went further to address the routine practice of arresting drivers who are below the legal limit of .08 on what is often referred to as the impaired to the slightest degree standard.

The impaired to the slightest degree standard creates many issues regarding discretionary enforcement of the laws. The standard basically creates absolute discretion on the part of a DWI/DUI officer. The history of civil rights alone should be enough of an argument to prevent this kind of latitude in law enforcement. Even assuming that there are no possible racial, ethnic, sexual, religious, or other possible prejudices in law enforcement, there are other equally pernicious pressures on law enforcement for DWI/DUI convictions.

Most recently, it is has been suggested that the Albuquerque DWI/DUI Unit has quotas that must be met. There are also overtime incentives for these arrests since going to court entails overtime pay. There are broader funding pressures of offices of prosecutors across New Mexico, since funding for DWI/DUI enforcement, which make no mistake is big business, is often tied to prosecution statistics. This pressure is likely to grow in the current budget environment. Finally, the press must always weigh in with an attack every time an officer, prosecutor or judge exercises some rational discretion on DWI/DUI enforcement. The pressures for arrest and conviction are simply too great to have any latitude at all in the enforcement of New Mexico's DWI/DUI laws.

In fact, I can think of no other law that has such a vague standard. "Impaired to the slightest degree?" Really? What does this mean? It has no meaning other than that given to it by the officer at any particular time. So what if the cop needs to meet a quota, just doesn't like the driver, is trying to impress the boss, or is just having a bad day (I assume cops probably have more than their share of stressful days)? Perhaps it is more insidious. Perhaps the cop is looking to book more overtime for a new fishing boat? And most frightening of all for all of us, maybe the cop is prejudice against the driver for race, ethnicity, religion, political affiliation, age, sex or some other grounds that taints his judgment even slightly.

The fact is the law should be precisely written. Citizens should know what to expect. There should be a standard that they can meet. They must be able to avoid violation of the law through thoughtful and responsible conduct. There is no such standard currently in New Mexico's DWI/DUI law enforcement. In fact, most people still believe the standard is .08 blood alcohol level. Many plan their evenings around this belief. Some even buy portable blood alcohol test devices to insure they comply with the law. There are even bars and restaurants that have these devices for their patrons. And the fact is, it simply does not matter. It is left to the cop.

The law should not be drafted for the 99% of law enforcement officers that conscientiously perform their duties. It should be drafted to protect against that very small percentage of those that don't. There should be a standard, any standard will do, .08, .04, .01 or even any alcohol at all. The public has a right to know the law and in its current state, the law is unknowable. There is simply no possible way for citizen to know whether or not they will be arrested for DWI/DUI if they are below .08. Due to the severe consequences of a DWI/DUI conviction, this is unacceptable and more than a little frightening.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

The Albuquerque Journal reports that New Mexico Senator Michael Sanchez has introduced Senate Bill 151 (SB 151) which will address two serious problems in New Mexico DWI/DUI enforcement: 1) under the limits DWI/DUI arrests on the impaired to the slightest degree standard, and 2) the arrest of drivers found sleeping in their vehicles while intoxicated. The latter will be addressed here with a follow up on "impaired to the slightest degree."

Senator Sanchez 's SB 151 would address the practice of arresting drivers who are asleep in their car by inserting language defining driving to mean only those situations where the "person is behind the wheel of a motor vehicle and causing the motor vehicle to move or exercising control over the movement of the vehicle. Exercising control over a motor vehicle alone, without any movement of the vehicle and with no immediate intent to move the vehicle, does not constitute driving." The current DWI/DUI enforcement practices and the law allow drivers to be arrested for sleeping while intoxicated under the theory that they are in control of the vehicle.

Those in opposition to the change in the law argue that a person sleeping his or her car could wake up and decide to drive. Sure, they could. Someone drunk and sleeping in bed could wake up and decide to drive. In fact, that person is probably just or more likely to decide to drive drunk. After all, the person that had the good sense to avoid driving by sleeping in their vehicle at least possesses the conscience or fear of arrest necessary to cause them to avoid driving. Why should it be presumed that they would exercise the good judgment to avoid driving while intoxicated when severely intoxicated then exercise less restraint as the effects of the alcohol begin to wear off?

The fact is that the policy of arresting drivers who are sleeping in their cars to avoid driving under the influence actively encourages them to engage in the very behavior New Mexico's DWI/DUI laws are meant to deter. According to the National Highway Traffic Safety Administration's law enforcement DWI Training materials, for every driver that is arrested for DWI, there are 500 to 2000 drunken drivers that go undetected. If this is so, and one must weigh the risks of getting arrested for sleeping in a vehicle in a public parking lot which are probably pretty high versus getting arrested for DWI which according to NHTSA are extremely low. Due to the severe consequences of a DWI/DUI conviction, an odds oriented driver would drive rather than sleep since driving carries at best according to NHTSA a 1/500 chance of detection. I for one would rather the person sleep off their intoxication before getting behind the wheel drunk and possibley endangering me, my family or other innocent drivers.

The policy of arresting people for trying to do the right thing is wrong on purely a gut level. It makes no sense to punish someone for making a responsible decision. More than that, it endangers the public by more or less forcing people to drive home rather than sleep off their intoxication. New Mexico's DWI/DUI law and policy is irresponsible and dangerous. I am happy to hear that Senator Sanchez is pushing this bill.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

www.CollinsAttorneys.com

The Albuquerque Journal reported today that a bill toughening DWI/DUI penalties for first offenders died in the New Mexico Senate yesterday. The bill was considered a top priority for New Mexico Governor Bill Richardson.

The bill would have established mandatory jail time or community custody for first time DWI/DUI offenders. The bill would have required a minimum 3 day jail sentence or 30 day community custody for first time offenders. Community custody requires electronic monitoring (ankle bracelet) 24 hours a day for those in the program. Both jail time and community custody are very costly. These costs apparently derailed the bill.

Those in opposition to the bill pointed to the unfunded costs in the program. They also pointed to the strain the program would place on already overcrowded jails throughout New Mexico. Finally, at least one senator, Bernadette Sanchez of Albuquerque, addressed the problem of overreliance on penalties and too little emphasis on treatment.

There were 150 DWI/DUI fatalities in New Mexico in 2009. 70 percent of those were caused by first time offenders. Governor Richardson and others have argued that tougher penalties will act as a deterrent. Richardson first proposed the bill when a drunk driver crashed into a carload full of teens in the summer of 2009 killing 4 of the teenagers.

DWI/DUI is a very serious problem in New Mexico. 150 deaths is unacceptable. The real challenge is to address the problem in a manner that effectively reduces drinking and driving. The reality is that every DWI/DUI carries mandatory jail time. The DWI/DUI offender is arrested and jailed pending a first appearance. Often, the timing of the arrest over the weekend will carry 2 or more days in jail before the first hearing is set for release.

Mandatory jail time will likely have no greater deterrent value than the deterrents currently in place which include arrest, jail, courts costs, fines, counseling, probation, community service, loss of driving privileges and vehicle seizure among others. If this is not enough, the attorney fees can be financially crippling for some.

The penalties and costs of DWI/DUI are pretty staggering as the law currently stands. A new approach is needed beyond the customary call for stiffer jail time. What that approach would be remains to be seen.

www.CollinsAttorneys.com

Often times when drivers are charged with DWI/DUI in New Mexico, they have prior DWI/DUI convictions from other states. Many times, the charge in New Mexico will be to a DWI/DUI First Offense despite the prior conviction.

Those charged often believe that they were not charged with a subsequent DWI/DUI because the out of state conviction does not count against them. In reality, what typically has happened is that there has been no search of interstate criminal records at the time of the original filing of the complaint.

This does not mean that the complaint cannot be amended once the out of state DWI/DUI conviction(s) are discovered by the District Attorney. Therefore, if there is an out of state conviction for DWI/DUI, it will likely be discovered well before the trial date. If not, it will be discovered at sentencing and factored into the DWI/DUI sentencing where there is a significant amount of latitude allowed the judge.

The use of out of state DWI/DUI is allowed both by statute, NMSA 66-8-102(Q) and by case law, State v. Lewis. NMSA 66-8-102(Q) clearly allows for the use of out of state convictions for consideration of a charge as first or subsequent DWI/DUI. In addition, the New Mexico Court of Appeals determined in State v. Lewis that the use of out of state convictions for enhancement purposes is allowed under New Mexico law. The court ins State v. Lewis ruled that so long as the out of state DWI/DUI statute is substantially equivalent to NMSA 66-8-102, then the conviction can be used as a prior.

It is very important that you discuss your DWI/DUI history honestly with your attorney from the very first meeting. Prior convictions will almost always show at some point during the process. Hiding them from your attorney could severely impact the legal representation as the approaches for dealing with first time DWI/DUI and subsequent DWI/DUI can be very different particularly when it comes to consideration of plea offers. Surprises at trial are never good for you or your attorney. Surprises at sentencing can be extremely detrimental to your freedom.

www.CollinsAttorneys.com

A recent article on KOB.com of Albuquerque addresses an important question, why would Albuquerque police officers arrest drivers for DWI/DUI at a breath alcohol level (BAC) of .04 when the legal limit is .08.

The answer that the writer provides is that "It's all about your performance, and it's up to the cops." You would hope as a citizen that the first part of the explanation is correct, that it is about your performance on the field sobriety tests. The problem is that the second part of the explanation is exactly right, it is entirely up to the cop.

The article also rightly points out that the law states that you may be arrested for DWI/DUI when your ability to drive is impaired to the slightest degree by alcohol. It is yet to be determined what precisely this means, "impaired to the slightest degree." The reality is that it is as the writer suggests up to the cop.

This is the problem and it is very serious problem. It is left to the police officer to determine or opine whether a driver's ability to drive is impaired to the slightest degree. The fact is that the field sobriety tests are susceptible to interpretation at best and outright falsification at worst. The turn on the walk and turn test is not performed just right. The heel and toe did not meet on the 5th, 7th and 9th step of the walk and turn. The driver could not keep his hands at his side during the one leg stand. The driver did not appear to understand or follow one of the many directions given during the fields sobriety tests. And the horizontal gaze nystagmus (HGN) test has potential for abuse at every single step of the process. There simply is no way to prove that the cop misconstrued or falsified the test results.

So what's the problem? Perhaps, the officer is under stress to meet DWI/DUI quotas. This is the most innocent offense. Worst case is that the level of subjectivity in these tests allows the officer to target particular kinds or races of people. There is no check on the officer's discretion. It is entirely up to the officer. And judges are under too much pressure to question the credibility of an officer. The prosecutor cannot dismiss a case that lacks merit. The same news outlet, and probably several others, that printed the article on why under the limits DWI/DUI might occur will print an article the morning following a dismissal of a DWI/DUI that attacks the judge, the prosecutor, and even the cop for not being tough enough on DWI/DUI offenders.

Impaired to the slightest degree has too much potential for abuse. There are far too many pressures on judges, prosecutors and police to get these convictions. Impaired to the slightest degree is not standard. What does it mean? It means whatever the cop says it means and that is it. The fact is that most are very surprised to hear that .08 is not the true standard. Citizens have a right to expect laws that are precisely drafted so that they can stay within the bounds of the law. The law should set forth a precise standard for DWI. It should not be left to the cop on the street. It is not fair to the cop and it is not fair to the citizen. There simply is no way to predict or plan for such a vaguely written law.

So why doesn't New Mexico just pass a law outlawing drinking and driving, period? What would happen to restaurants and bars? What would happen to tax revenue for the State? There is your answer. It is more cost effective to pass the burden on to the unlucky driver caught in the vagaries of New Mexico's DWI/DUI laws than to risk the loss of tax revenue with drafting a law that reflects the reality of DWI/DUI enforcement in New Mexico and particularly in Albuquerque where it may or may not be a crime to drink even a sip of alcohol and get behind the wheel.

www.CollinsAttorneys.com