Albuquerque Criminal Lawyer Blog

The New Mexico Supreme Court recently addressed the applicability of the misdemeanor arrest rule to DWI/DUI arrests in City of Santa Fe v. Martinez. The case involved a tip from a mall employee who observed the defendant attempting to unlock several different vehicles in the mall parking lot before he finally ventured upon his own vehicle and drove away. The mall employee contacted the police providing the defendant's drivers license number.

A Santa Fe police officer traced the license to the defendant's home. The police officer went to the defendant's home where he found the defendant inside extremely intoxicated. The defendant voluntarily opened the door and allowed the officer into the home. He admitted drinking and having driven the vehicle earlier.

Based upon the defendant's statements, his visible intoxication, the smell of alcohol and other indicators of intoxication, the officer arrested the defendant. The defendant refused the breath alcohol test which resulted in charges for aggravated DWI.

The defendant moved to dismiss the charges for violation of the misdemeanor arrest rule which the court denied in Santa Fe Municipal Court. The defendant appealed to district court where the conviction was set aside. The City of Santa Fe appealed and the case made its way to the Supreme Court.

The misdemeanor arrest rule is a long standing rule requiring that an officer actually observe the misdemeanor offense in order to make a warrantless arrest. There is no such rule for felony arrest. The rule derived from the fact that misdemeanors are typically not as serious as felony crimes and pose a much lower risk to public safety.

The New Mexico Supreme Court determined that the misdemeanor arrest rule should not apply to DWI/DUI arrests. The court reasoned that unlike most misdemeanor offenses, DWI/DUI pose a very real, immediate and significant risk to public safety stating, "Given the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI should be treated as a felony for purposes of warrantless arrests." In addition, delay in investigation and arrest on DWI results in the loss of evidence of intoxication as the person begins to sober up. The court indicated that the misdemeanor arrest rule represents a balance between the rights of the accused and public safety. In the case of DWI, the balance according to the Court falls on the side of waiver of the misdemeanor arrest rule in DWI/DUI cases.

This is a significant development in DWI/DUI enforcement. It remains to be seen how this will play out in future DWI/DUI enforcement. The rule may impact the DWI police team concept as well as the need for both the stopping officer and DWI investigating officer at trial. It is likely that there will be future activity surrounding these issues as this case is incorporated into DWI enforcement practices.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals draws the parameters of investigatory stops in State v. Eric K. An anonymous call was made to 911 reporting that a female had pulled a gun and took the caller's money during an apparent drug transaction. A police officer went to the area where the alleged crime had occurred to investigate. Upon arrival, he noticed two male youths that he believed looked a little bit nervous but "nothing real suspicious."

Based upon the 911 report and his belief that the two youths looked nervous, the officer initiated contact with the youths. As the officer approached, the youths began to enter a laundromat. The officer called for them to come over to speak with him. During the conversation, the officer instructed one of the children to remove his hands from his pockets. At that time, one side of the child's coat hung lower than the other prompting the officer to pat down the child. A gun, drugs and drug paraphernalia were discovered in the pat down search. The child moved to suppress all of the evidence as fruits of an illegal search & seizure. The trial court denied the motion to suppress. The New Mexico Court of Appeals reversed.

An officer is always free to initiate a voluntary encounter with a citizen. However, once the circumstances are such that a reasonable person would not feel free to leave, the encounter turns into a seizure for which there must be reasonable suspicion. Mere proximity to a reported crime does not constitute reasonable suspicion,. Nor does looking a little nervous. Instead, the court reiterated the well-established rule that there must be "individualized, articulable, reasonable suspicion" at the time of the seizure which the court found in this case to be when the officer ordered the child to remove his hands from his pockets.

The 4th Amendment provides significant protection against illegal search and seizure. This includes cases where officers without reasonable suspicion, but merely on a hunch or perhaps simply in the process of fishing for evidence, initiate an non-voluntary investigative encounter with a citizen. The 4th Amendment attempts to balance individual rights against community and officer safety.

This case points out the tension between these interests. On the one hand, the child had a gun, an illegal act and perhaps a danger to the community. On the other, the officer had no basis for investigating the child. It is a difficult balance for law enforcement and the courts as the interests on both sides are extremely important. However, the 4th Amendment right against unlawful search and seizure must not be compromised on a case by case basis where an officer just happens upon a crime through an illegal investigation. To allow the end result of an illegal investigation to justify the unlawful police conduct would render the 4th Amendment meaningless. As much as a case like this rattles our insecurities, the alternative is far worse.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Ron Bell was arrested and charged with DWI on a blood alcohol score of 0.0. That is not a typo. He was charged under New Mexico's impaired to the slightest degree standard despite the fact that he had no alcohol in his system.

The charges have been dismissed against Ron Bell. The fact is the charges should have never been filed to begin with. Nor should the many under the limits DWI/DUI cases that are routinely charged in New Mexico exposing the under the limits drivers to the full consequences of a DWI/DUI conviction despite the fact that they were under the .08 legal limits. The case against Ron Bell perfectly illustrates the possible problems with the impaired to the slightest degree standard.

Ron Bell's face is etched in the minds of every man, woman and child in the Albuquerque metropolitan area. You can hardly leave your home without seeing one of his advertisements. The arresting officer most certainly knew Ron Bell. A 0.0 blood alcohol reading resulting in a DWI arrest suggest something other than a legitimate suspicion of DWI.

Perhaps the officer doesn't like Ron Bell or his advertisements. Perhaps he doesn't like lawyers. Lots of people don't. There are a number of illegitimate reasons that could have led to the arrest of Ron Bell on a 0.0 blood alcohol reading. Impaired to the slightest degree gives officers absolute discretion in making an arrest, for both legitimate and illegitimate reasons. The lack of any real standard can lead to abuse. An arrest on 0.0 at the very least raises the question of motive.

The question of motive could and does come up frequently in below the .08 limits DWI arrests. What if it is not lawyers an officer does not like but blacks, Hispanics, whites, women, gay men or women, people with the wrong bumper stickers, people that voted for Obama, people who voted McCain, people with purple hair or people that just plain rub the cop the wrong way. In any of those cases as happened here, the officer can make a DWI arrest despite the lack of any real impairment based upon any number of contrived basis. Unfortunately, unlike Ron Bell, most people faced with a similar wrongful arrest lack the resources to fight the charges. Instead, the courts routinely convict these people. After all, we live in a state where the supreme court had to stop the practice of arresting people for sleeping while intoxicated.

In short, impaired to the slightest degree is no legal standard at all. It is whatever the officer says it is. In the best light, it is not fair to officers to force them to make these decisions. In the worst, it is most unfair to subject drivers to the whims of each individual officer. The great majority of officers are honest. Well defined legal standards govern those few on both sides of the law who are not.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The United States Supreme Court has overruled the 5th Circuit Court of Appeals in Carachuri-Rosendo v. Holder. The petitioner had agreed that he was removable because of the two simple possession convictions but had applied for cancellation of removal. The 5th Circuit ruled that the petitioner's conviction on two simple possession charges constituted an aggravated felony thereby making the petitioner ineligible for cancellation of removal. This ruling had potentially disastrous immigration consequences for thousands of non-citizens charged with petty drug offenses.

The petitioner had served 20 days on his first simple possession and 20 days on the second. The case was brought in Texas state court. The prosecutor had not sought an enhancement though enhancement as a recidivist offender was possible under both Texas and Federal law. The government argued successfully in the 5th Circuit that because the second offense could have been enhanced under the law, the second conviction constituted an aggravated felony.

The Supreme Court reversed the 5th Circuit. In short, the Court stated that in order to be convicted on an aggravated felony as a recidivist offender, the State must have provided notice of the intent enhance to the defendant so that he could have defended against those charges. The court refused to entertain the government's theoretical possibility of enhancement when in fact there had been no such allegations in the second criminal action. Nor did such a possibility factor into the plea which resulted in only a 10 day sentence under Texas law for simple possession.

This is good news for the petitioner and all non-citizens facing removal for petty drug offenses. However, this does not end the matter. Though the petitioner is now eligible for cancellation of removal, there is no guarantee that cancellation will be granted. If you find yourself or a loved one in this situation, contact an immigration attorney immediately. If you are charged with any kind of crime, especially drug offenses, then make sure you understand all possible immigration consequences of the charges and any offered plea. Even seemingly trivial offenses may have disastrous immigration consequences.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court reversed the Courts of Appeals ruling from last year which legitimated DWI/DUI charges against individuals who were sleeping in their vehicles effectively taking the driving out of drinking and driving. The Supreme Court in State v. Simms recognized the absurdity of the prior ruling.

The New Mexico Court of Appeals in State v. Simms had found that a defendant was in control of the vehicle and therefore subject to charges of DWI/DUI. The court found this despite the fact that the defendant was asleep in the vehicle and the keys were not in the ignition. The court reasoned that the defendant could have awoken and drove the car at any time. The court ignored the fact that he had gone to sleep for the very purpose of avoiding driving while intoxicated.

The prior ruling had a number of problems for both well intentioned drivers and the public at large. First, there was no intent requirement to show that the driver in fact had the intention to drive the vehicle. To the contrary, the facts suggested the opposite that the driver was sleeping off the alcohol to avoid driving. This raises the more important point which is that the law as construed by the district court and the appellate court actually had the affect of encouraging drinking and driving. After all, the risks of being detected and arrested in a bar parking lot while sleeping in a vehicle are exponentially higher than the odds of getting pulled over while drinking and driving. In addition, the prior interpretation could have disastrous consequences during the New Mexico winters when a driver is forced with the decision of sleeping outside the vehicle or driving home intoxicated. The prior interpretation and execution of the law was ludicrously opposed to public safety.

The Supreme Court in State v. Simms stated that there must be intent to drive. In effect, there can no longer be a generalized intent to drive as evidenced by proximity to the vehicle. Neither can the issue be couched entirely in the terms of control of the vehicle. Instead, it must be shown that the driver intended to drive the vehicle while intoxicated. The Court in essence adopted the public policy rationale of allowing drivers to sleep off their intoxication. The court stated that the DWI/DUI laws did not have the intention of prohibiting people from simply entering their vehicles. This is particularly the case when a driver is taking shelter from the elements and from the risks of driving intoxicated.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Miranda rights suffer another setback in the United States Supreme Court case of Berghuis v. Thompkins. The court held that is not enough to remain silent to stop police questioning, a suspect in a criminal case must explicitly invoke his or her Miranda rights.

The ruling will allow police to interrogate suspects for hours on end so long as the suspect does not state to the police the wish to invoke Miranda. It is rightfully feared that the police will abuse the greater latitude particularly in cases of poorly educated, mentally ill, impaired, or generally unsophisticated suspects. The court's ruling may have even greater consequences for those whose first language is not English particularly in the 10th Circuit where non-English speaking suspects may waive important constitutional rights without the benefit of an interpreter.

Berghuis v. Thompkins represents just one more setback to Miranda. In fact, the exceptions to Miranda are so numerous as to render it virtually meaningless even before this opinion. Perhaps more troubling than the opinion itself is the Court's willingness to cast aside long established constitutional rights. This same mind-set is present throughout the Circuit Courts as well. So what does it all mean?

It means a suspect should keep his or her mouth shut except to the degree necessary to assert Miranda Rights. After all the right to remain silent under the 5th Amendment is the essence of Miranda. The fact is that there are so many exceptions to Miranda that anything said to the police is likely to end up in court. Likewise, any physical evidence discovered as a result of questioning will be admitted. It is extremely rare that the evidence would be completely suppressed. It is rarer still that a case would be dismissed for a violation of Miranda. On the other hand, there are countless ways that a suspect's statements may damage his or her defense.

Many labor under the misconception that the legal system is fair and balanced. Just as many believe that accused persons are presumed innocent. It is not and they are not. This is made most clear in the cases involving Miranda disputes. Once a "confession" is extracted or even alleged to have been extracted, the burden shifts to the defendant. Clearly, judges are going to believe police over an accused. If there is any question as to the legitimacy of the Miranda warnings, and the suspects waiver of Miranda rights, the courts will err on the side of the police. This made clear each and every day in criminal courts across the country. Ties go to the prosecution as in the recent 10th Circuit case of US v. Silva-Arzeta where the police alleged that the suspect consented to the search of his residence despite the fact that he did not speak English, no interpreter was provided and the suspect was first taken into custody a distance from his residence.

In light of Berghuis v. Thompkins, Silva-Arzeta, and the growing list of exceptions, is there any question how the courts will rule in case of a dispute over Miranda? Keep this in mind as Arizona's "Papers Please" law moves forward. It is a fairly safe bet that these trends will quickly come into play there.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

In every criminal domestic violence case such as battery or assault on a household member, the court will issue a no-contact order. The no-contact order prohibits contact between the defendant and the alleged victim. There can be very harsh penalties for violation of the no-contact order.

Violation of the no-contact order can result in a bench warrant for violation of the conditions of release. In the alternative, the judge may order a hearing to review the conditions of release. The judge can revoke the conditions of release and take the defendant into custody pending trial. The violation typically also results in new charges for the violation of the no-contact order. Repeated violations can result in felony charges.

Due to the severity of the possible consequences for violating a no-contact order, it is highly inadvisable to violate the order. This is the case even when the alleged victim wants contact. The fact is that the alleged victim will frequently want contact following domestic violence charges. However, judges are highly intolerant of violations of the no-contact order no matter what the wishes of the alleged victim. To avoid the wrath of the judge, the defendant must get the no-contact order lifted. To do this, the defendant must file a motion to modify the conditions of release to allow contact between the parties. The alleged victim must be present at the hearing on the motion to modify the conditions of release. Neither the court nor the prosecutor will allow modification in the absence of the alleged victim.

This can be a tricky situation. Cases where the alleged victim wants the no-contact order lifted typically involve very minor incidents. Frequently there was no domestic violence at all which may be why the alleged victim is so anxious to resume contact. The alleged victim in many of these cases called the police in error or for illegitimate reasons. As a result, alleged victims in these cases are often very nervous about going to court or speaking with the prosecutor about the case for fear of reprisals for making a false police report. And in essence, in order for the no-contact order to be lifted, the alleged victim must say that he or she does not fear harm from the defendant. One would think that this strongly suggests that no domestic violence occurred.

Unfortunately, prosecutors do not necessarily see it this way for many legitimate reasons. Then there are those that will not let go of a case no matter what the alleged victim says, even when he or she says unequivocally that there was no domestic violence. Some prosecutors will simply assume the alleged victim is lying. Instead, these prosecutors that will take the opportunity at the hearing on the motion to modify conditions of release to insist that the alleged victim cooperate in the prosecution of the case. It is therefore very important to know the prosecutor in the case before filing the motion to modify conditions of release. Many, if not most, are very reasonable with no time or inclination to prosecute baseless cases. With these, the motion hearing is worth pursuing and in some cases may even result in dismissal of the charges. With overly enthusiastic prosecutors, it may be both pointless and even unwise to file the Motion.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com