Albuquerque Criminal Lawyer Blog

There can be both civil or criminal domestic violence no-contact orders against an accused. Violation of either the Family Violence Protection Act Order of Protection or a no-contact order in a criminal domestic violence action is very serious. Violation of the Order of Protection can result in a number of penalties including orders of contempt and bench warrants. Violation of a no-contact order in a criminal domestic violence action results in additional criminal charges. Repeated or aggravated violations can result in aggravated stalking and other felony charges.

Unfortunately, these results may occur even in cases of inadvertent or innocent violations. Innocent violations such as contact through marital or family counseling and/or exchanges of the children can result in criminal charges for violations of the no-contact provisions in criminal cases. Worse yet, charges may result even if the alleged victim initiated the contact. This often happens when the alleged victim invites contact and then calls the police on contact or upon receiving a text or phone call from the accused. This may happen for any number of reasons. It may be malicious. At times, it could be that the alleged victim is simply confused or conflicted. The defendant may have a defense to the violation in cases where the alleged victim initiated the contact, but it will not prevent the criminal charges, and the stress and costs associated with those charges.

On many occasions, the alleged victim is confused or concerned about the process. The alleged victim may not want to pursue the case but be concerned about the calls or subpoenas from the district attorney's office. Many times, the alleged victim will actually call the accused for advice in these situations. The alleged victim should be seeking independent legal counsel. The accused should not be talking with the alleged victim at all. Certainly, the accused should not be weighing in on issues related to the alleged victim's cooperation in the criminal proceeding.

The accused in these situations should have no contact with the alleged victim. In fact, the accused should have absolutely no contact with the alleged victim under any circumstance when there is an order of protection or no-contact order in place. This includes receiving or returning calls or texts. The accused should under no circumstances advise or direct the alleged victim on how to proceed in the case. It is not uncommon that the alleged victim solicits the advice from the defendant and then passes the advice on to the prosecutor. At this point, an aggressive prosecutor may file charges for tampering or intimidation of a witness. Intimidation of a witness may be charged as a 3rd degree felony carrying felony sentencing. This is so even when where the accused is genuinely concerned about the alleged victim and sincerely trying to help.

If an alleged victim is confused about the process or his or her rights in the process, he or she should contact a criminal defense attorney for advice. The reality is that the process can be just as confusing and frightening to an alleged victim as it is for the accused. This is particularly so in cases that have been blown out of proportion by law enforcement or prosecutors, which at times seems the rule rather than the exception. Unfortunately, alleged victims have little input and no control over the process once it begins. However, they do have rights and a criminal defense attorney will be able to explain those rights along with any legal duties on the alleged victim as the process moves along.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

During the graduation season, many parents are tempted by the constant pleading/nagging of their new graduates to allow the kids to drink at the graduation parties. It seems to be pretty common. However, the criminal penalties are anything but common. In Albuquerque, where the party patrol is always on the beat, the risks simply are not worth it.

Serving minors alcohol is charged as the 4th degree felony under NMSA §60 7B-1E for selling or giving alcoholic beverages to minors. It is typically also charged as contributing to the delinquency of a minor under NMSA §30-6-3, also a 4th degree felony. Each carries felony sentencing. As 4th degree felonies, each count is punishable by up to 18 months in prison and a $5000 fine. In the event that person is charged with both offenses, there is a total maximum exposure of 36 months and $10,000 in fines. Finally, each violation may be charged separately, i.e. one count for each kid present and served alcohol.

A minor is defined as anyone under the age of 21 years of age. Oddly, anyone 18 or over can be charged with contributing to the delinquency of a minor. As a result, it is possible that both the parents, and some of the kids present at the party can be charged as co-conspirators.

Perhaps it is hard for some parents to say no to their kids. Being the cool parent can be very costly. The prosecutors take these cases pretty seriously, and routinely file these charges. The judge and prosecutor both would be particularly unforgiving in cases involving other alcohol related incidents. It takes little imagination to imagine all the possible shenanigans a drunk teen can get into such as fights, sex related offenses, and accidental injury to name a few.

Any of these could create both severe criminal consequences and if that does not get one's attention, the possible civil liability could be catastrophic. For instance, and reasonably foreseeable, one of the drunk teens could get in a drunk driving accident killing his or herself, the passengers, or other innocent drivers. In addition to the civil liability, the parent could then be facing even greater criminal charges and penalties.

Assuming this is not enough to convince your kid that you are making the right choice, try this. Tell him or her if you go down, you're taking him or her with you. And even if it is not your intended result, this may be the result anyway if your kid is 18 or over. Graduation is a time to remember. Let it be for the right reasons.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Driving privileges can be revoked or suspended in New Mexico for a variety of reasons. The two most common are DWI/DUI and non-payment of child support. A DWI/DUI arrest almost inevitably results in the revocation of a DWI/DUI offender's New Mexico driving privileges. The revocation is virtually automatic with minimal requirements of the state at the MVD License Revocation Hearing. In the case of first time DWI/DUI, the MVD driver's license revocation is for 6 months. For subsequent DWI/DUI offenses, the revocation is for 1 year. Suspension for non-payment of child support is not as common but used frequently in cases of habitual child support delinquency.

Driving on a Revoked or Suspended License is taken very seriously in New Mexico no matter what the basis for the revocation or suspension. By way of example, a first time DWI/DUI conviction carries a maximum of 90 days in jail. There are no mandatory jail times so that a simple non-aggravated first time DWI/DUI almost always results in First Offender Program with no jail time. By contrast, a first time conviction for Driving on a Revoked or Suspended License carries up to 1 year in jail. In addition, there is a mandatory jail time of 4 days. The mandatory jail time goes up to 7 days if the revocation or suspension was the result of a DWI/DUI. The mandatory jail time is prescribed by statute. The sentence may not be suspended, deferred or taken under advisement. The judge is not allowed to deviate below the minimum sentence no matter what the circumstances. In other words, it is does not matter how or why it happened, nor does it matter that the person is a model citizen in every other way. Upon conviction, the offender is going to jail for the statutory minimum.

Parents whose license are suspended for non-payment of child support often fail to fully appreciate the seriousness of their situation. Consequently, they are very surprised when criminal charges for driving on a revoked or suspended license are brought against them. They are even more shocked to learn that they are facing up to one year in jail and a 4 day minimum jail sentence for conviction. In case of license suspension for non-payment of child support, it is critical that the person work out a compromise with Child Support Enforcement for the reinstatement of driving privileges. A New Mexico divorce and family law attorney will be able to work through that process.

In cases where the license is revoked as the result of a DWI/DUI, it is critical that the person obtain an interlock license and an interlock device on his or her vehicle. The person should not drive any other vehicle during the period of revocation. Should the revoked driver be pulled over for any reason, the officer will check the driver's license status and a revocation will be shown. A failure to present a valid interlock driver's license and/or the absence of an interlock device will result in immediate arrest and charges for Driving on a Revoked License. Due to severity of these charges for a DWI/DUI revoked driver, it important to seek the guidance of a New Mexico DWI/DUI Attorney.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

It is amazing how many are so quick to take away the rights of others to protect against the wave of violence along the border. Many on the right are quick to point out that the wave of violence emanates from Mexico and that the threat comes in a neat identifiable package. All that is left is for the well intentioned police officers throughout Arizona to root out these ne'er-do-wells, lock them up, and send them packing.

What is lost in the debate is the fact that the wave of violence is a fiction created by the Right. El Paso is among the safest big cities in the nation. Yet it is separated only by a river from Juarez, which has earned the moniker of "murder capitol of the world." Phoenix' crime rate is also on the decline. San Diego too has seen no spike in violent crime from the marauders pouring across the border as the right would have everyone believe.

For 2006, El Paso ranked 179th, Phoenix 108th, and San Diego 130th in violent crime rates. Anchorage came in at #8 on the list suggesting that those Russians pouring over the border on to Sarah Palin's back porch are up to no good and should be profiled and eradicated.

The FBI reports that the nation as a whole had a decrease in violent crime of 4.4 percent from 2008 to 2009. It decreased 1.9 percent from 2007 to 2008. Violent crime rates in the border cities have seen similar decreases. Clearly, the violent crime statistics do not support the measures in Arizona. Like many issues from the Right, the threat of violent crime by illegal immigrants is a fictitious threat cynically created to scare the hell out of the public in an effort to garner votes.

Unfortunately, the public has until November to learn the truth behind the Arizona measures and the many on the Right that who support them. The numbers are pretty straightforward and easily communicated. What is harder to communicate is the impact that measures such as those in Arizona have on all Americans, even those that support these measures.

The right against illegal search and seizure by law enforcement is among the most protected rights that we have. It was important enough to come in at # 4 in the Bill of Rights. It is easy for many to support a forfeiture of this right when they believe it does not affect them. But the erosion of the right against unlawful search and seizure affects everyone. It takes little imagination to envision endless situations where police governed by laws like Arizona's "papers please law" could justify the stop of anyone for any reason.

The infringement on the rights of legal immigrants and Hispanic citizens is an outrage and should cause everyone to pause before embracing it. Sadly, most cannot see past their own narrow circumstances and only when these laws begin to infringe on their own sacred constitutional rights will they understand the dangers of laws like those in Arizona. And for what? A fictional wave of violent crime pouring over the US-Mexico border created in a dangerous and hopefully failed ploy to win votes.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The law in New Mexico regarding the validity of breath alcohol tests (BAC) in DWI/DUI cases has been recently modified by statute. The modification has severely curtailed the use of expert testimony by the defense to attack the validity of the breath alcohol scores. These issues were addressed in the 2009 New Mexico Court of Appeals case of State v. Jenita Chavez.

In the past, DWI/DUI defendants would often bring expert testimony to address the possibility that the blood alcohol levels at the time of driving were different than the levels at the time of BAC. The arguments were based on the absorption rates of alcohol into the blood stream, or retrograde extrapolation. For example, if one were to take a shot of tequila and jump in the car for a quick drive home, it is possible that the alcohol would not have absorbed during the short drive and the driver would suffer no impairment. If the driver is pulled over and later tested at a substation, sometimes hours later, there was an argument that the alcohol had more time to absorb so that the blood alcohol levels at the time of the test were higher than at the time of driving.

The New Mexico legislature took this line of defense away by amendment to the DWI/DUI statute NMSA 66-08-102(C) to read "It is unlawful for ... a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle." Expert testimony on the absorption rates is now largely prohibited in DWI/DUI trials.

However, the court in State v. Chavez recognized that expert testimony may still be available to attack other aspects of the breath alcohol test. In that particular case, the court upheld the exclusion of the expert testimony because the defendant had failed to show the relevance of the testimony for any legitimate line of defense.

The court, citing the 2007 New Mexico Supreme Court case of State v. Martinez, specifically allowed for DWI/DUI expert testimony to attack the accuracy and reliability of the breath alcohol scores. In State v. Chavez, the defendant attempted to admit expert evidence on how the outcome of the test might be impacted by the person giving the sample. The Court stated that the defendant failed to explain the relevance of this testimony other than for purposes of the now prohibited retrograde extrapolation.

In short, there is now a pretty significant burden on the defense to show the relevance of the DWI/DUI expert testimony for purposes of attacking the reliability of the breath alcohol test. And the attack on the BAC cannot have as its basis alcohol absorption and elimination rates.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

There was an interesting editorial in the New York Times today about the broken criminal justice system. It was not interesting so much for the recognition of the problem and the fact that there apparently is a bi-partisan effort to study the longstanding problems and to provide solutions. It is far more interesting when viewed in terms of what is happening in New Mexico.

It is well accepted that U.S. prisons are brimming with non-violent offenders, the great majority of whom are drug offenders. It is also well recognized that the costs of housing theses inmates is extremely expensive. In fact, California has put forth a bill to release thousands of prisoners due to the financial strain that it is putting on the state. New Mexico is facing similar pressures.

None of this new and because everyone has heard it time and time again, most have become desensitized to the issues. This is particularly so in New Mexico and apparently acutely so in Albuquerque where the local press seems on a crusade to increase the incarceration rates for everything from first time DWI/DUI to domestic violence to drug offenses to immigration offenses to apparently every crime on the books. There seems to be a law and order movement in Albuquerque and New Mexico generally while much of the rest of the country is seeking less inhumane and oh yes, less expensive solutions to society's woes.

While California is releasing prisoners, Albuquerque Police in particular continue to arrest drivers for DWI/DUI even though they are under the legal limit of .08. They continue to arrest drivers for sleeping intoxicated in their vehicles. They continue to arrest individuals, many of whom are young, for minor possession of marijuana. They continue to arrest people for domestic violence when they come to the scene even when the alleged victim explains there was no domestic violence. And when they bring each of these fundamentally unjust charges, the prosecutors prosecute with little discretion to drop the charges despite the lack of any evidence, or evidence directly contrary to the charges. The prosecutors on the front lines are driven to prosecute by their bosses, who in turn are driven by politics and funding.

And judging by the recent articles and letters to editor, the public wants more it seems. This in turns drives the District Attorneys throughout New Mexico to dig in and push these cases toward trial. After all, District Attorneys are elected officials and they must listen to the masses. These cases have little to do with justice or the protection of society. To the contrary, as prosecutors are forced to push these cases toward trial by their bosses, the media, the new law and order Governor, and ill advised voters, they are pushing New Mexico toward bankruptcy. And the public gleefully cheers them on while at the same time screaming for lower taxes, smaller government, less government intrusion, greater individual rights, and on and on and on.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

It has been widely reported that law school clinics across the country are under attack by corporate interests. It seems that many corporations take offense to the fact that law students are taking on cases against corporate interests. In many cases, these law clinic students take on the causes of the poor that could not afford legal representation otherwise. There has been little support coming from government officials to protect these programs. There are no campaign contributions to gain from that position.

There is on the other hand plenty of money to go around to prosecute the poor. Governor Richardson announced a program complete with $150,000 funding to UNM School of Law to offer law students hands-on training in the prosecution of DWI and Domestic Violence cases. Where funding is under attack for programs to help the poor both in law clinics and public defender programs across the nation, there seems no shortage of money for the prosecution of the poor who are particularly hard hit by domestic violence.

Domestic violence in particular is a large portion of any public defender caseload. Public defenders are grossly underfunded as it is with enormous caseloads of indigent defendants. Now they have the added burden of dealing with students who will receive the full support of their professors, those same professors whose approval may drive excessive zeal in their prosecution of cases, despite the merits of the case. Public defenders are already greatly out-gunned by the resources of the prosecution. It makes perfect sense to now provide free labor and full access to law school resources to further overwhelm them.

Why does this matter? An article in the Albuquerque Journal quotes one individual who laments the day that she was unable to talk an alleged domestic violence offender out of prosecuting her husband. Of course, the article fails to mention the fact that many alleged victims immediately regretted the call to the police. On many occasions, the alleged victim will tell the police on arrival that nothing happened and they called because they were upset, stressed, jealous, angry, insecure, or any number of reasons not suggestive of domestic violence. The police will generally arrest one of the parties anyway as a matter of policy.

Also as a matter of policy, many New Mexico prosecutors will not reassess the case and dismiss the charges once it is apparent that there was no act of domestic violence. They will not dismiss the charges even when the alleged victims tell them in no uncertain terms that they are not victims of domestic violence. They will not dismiss when the alleged victim provides written statements, recorded statement, and even comes to court to explain to the prosecutor in person that there was no domestic violence. They will not dismiss when the victim cries, "I am not a victim."

It is reported that the UNM Law School program will be both beneficial in training budding prosecutors as well as greatly aiding the overburdened prosecutors offices. Here's a thought on the latter, perhaps prosecutors could evaluate the cases and get rid of the cases that clearly have no basis. That might help their caseload?

Not everyone that comes to court is a true victim, and not every named defendant is predator. I'm no genius but it seems a good place in trying to discern the true victim and predator is to ask the alleged victim. Of course, the experts on domestic violence disagree. Instead, the alleged victim needs to be convinced that she is a victim. There really is no better place for learning the art of persuasion than law clinic. We just don't want to waste that art on the poor.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

One of the primary concerns of many facing domestic violence charges is the impact a conviction will have on their right to possess or carry firearms. This concern is particularly serious for those whose employment requires that they be allowed to possess or carry a firearm such as law enforcement, the military, and public or private security. The prohibition against possessing or carrying a firearm for people in these professions can be financially ruinous.

Conviction of a domestic violence offense in criminal court carries with it a lifetime ban on the possession of a firearm. Federal law under 18 U.S.C. § 922(g)(9) provides for a lifetime ban for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence." Violation of the law results in very serious felony charges under federal law.

As a result, a conviction for misdemeanor domestic violence can make an individual ineligible for employment in any occupation requiring the use of a firearm. This not only prevents individuals from pursuing employment in these areas, but can result in the lawful termination of a person's employment for a domestic violence conviction. This may be the case even for those who have been employed for years with that employer.

Of course, victims must be protected from domestic violence. However, there are a number of injustices that arise that are largely ignored under the pretext of protecting victims. First, as has been discussed in previous posts, false domestic violence actions are often filed for illegitimate purposes. Second, the definition of domestic violence is very broad. Prosecutors will often use the broad definition overcharge cases that really have no business being charged as domestic violence. Again, as a result of the incredibly broad definition, prosecutors will often also charge cases as domestic violence when the charge only vaguely resembles domestic violence. For instance, someone who kicks a wall, throws a phone, breaks some dishes or the like is often charged with domestic violence rather than simple destruction of property. Finally, the definition of assault which is part of the domestic violence offense of assault of a household member is really so flexible that anyone of the right mind could come up with charge no matter what the reality of the situation.

For an individual whose very livelihood depends on the outcome of these proceedings, the process is confusing, frustrating, and most of all frightening. Men and women who have spent their entire lives doing the right thing, without a single other blemish on their record, face the possibility of the loss of their gun rights, a right held sacred under our Constitution, and with that loss, a loss of any financially secure future in the profession which they have chosen. It is not infrequent that they face these consequences despite the absence true domestic violence for which the law was meant to protect.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com