Albuquerque Criminal Lawyer Blog

Officers in DWI investigations must follow the guidelines established by the New Mexico Scientific Laboratory Division (SLD) in the administration of the breath alcohol tests. Failure to strictly adhere to the guidelines will invalidate the breath alcohol scores.

In State v. Ybarra, the New Mexico Court of Appeals addressed a situation where the officer failed to obtain 2 breath alcohol samples despite the defendant's willingness to provide the samples. The defendant was having a difficult time completing the test as a result of his asthma. The officer actually held an asthma inhaler for the defendant as the defendant was handcuffed. The officer then decided to terminate the breath alcohol test determining that the defendant was unable to provide a second breath sample.

The Court ruled that the circumstances of the case did not justify termination of the breath alcohol test stating, "Terminating a breath test and using the result from the single completed sample must be based on more than a police officer's belief that the willing test subject has physical difficulties blowing into the machine." The court made it clear that DWI officers must comply SLD mandated two breath samples. The only exception to this requirement is when the defendant is physically incapable or refuses to consent to the second test.

Failure to obtain two breath alcohol samples in the absence of incapacity or refusal will result in the suppression of the breath score. The prosecutor cited the 2005 case of State v. Vaughn to suggest that DWI officer's may exercise discretion in terminating the tests. The court recognized that a officer might terminate the test where the defendant intentionally gives a bad sample as in Vaughn. However, the court determined that there was no such evidence of an intentionally bad sample by defendant. Instead, the defendant attempted to give the sample even as the officer held his asthma inhaler for him while he was handcuffed.

The court further cited the 1998 case of State v. Gardner for the proposition strict compliance with the SLD regulations is required. Good faith attempts at compliance are not enough. Gardner involved a case where the officer had failed to observe the defendant for the SLD required 20 minute observation period when the defendant was allowed to go to the bathroom. Despite the apparent good faith of the officer, the breath alcohol scores were suppressed for failure to adhere to the SLD regulations.

The court in its rulings recognizes the importance of standardized guidelines in the administration of the breath alcohol tests to insure legitimate and accurate tests results. Perhaps in this case, the officer did exercise good faith in terminating the tests. However, the absence of strict guidelines could lead to any number of possible abuses in the administration of the tests. After all, how is good faith to be measured in the absence of rules?

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The Zero Tolerance policy for schools was implemented in New Mexico to halt the growth of school related violence. There is no disputing that the policy has for the most part been both necessary and beneficial to New Mexico schools. However, on occasion, the enforcement of the policy at the local enforcement level can get a little carried away.

In the 2009 case of State v. Nick R., the New Mexico Supreme Court addressed the prosecution of a sixteen-year-old Taos High School student for possession of a deadly weapon on school premises, a fourth degree felony. The problem with the case was the fact that the so-called deadly weapon was a simple pocket-knife that the child used at work in his dad's furniture business, and had forgotten to remove from his pocket before school. It was agreed by all that the child never intended to use the pocket-knife as a deadly weapon. In fact, after a brief suspension, the high school reinstated the child.

On the other hand, the local prosecutor would not let it go and the case proceeded to trial. The child's lawyer argued that evidence showing that the child had no deadly intent should be admitted to the jury. The court denied the evidence stating that the child had committed the crime as a matter of law. In short, the trial court stated that intent was irrelevant, the fact of possession was enough. The court did this despite the fact that "pocket-knife" is not among the weapons named in the statutes defining deadly weapon under New Mexico law.

The child appealed the ruling by the court that intent was irrelevant arguing evidence of intent should have been presented to the jury. The New Mexico Court of Appeals sided with trial court upholding the ruling and the conviction. The Supreme Court reversed.

The Supreme Court went through a lengthy analysis and discussion of the history of the statute and the cases since its enactment in law during New Mexico's territorial days and its amendment in 1953 to add two additional weapons of switchblade knives and brass knuckles. Interestingly the Court fell back on common dictionary definitions of deadly weapon. The Court even referenced Mark Twain and "the ubiquitous Barlow pocketknives in his classic Tom Sawyer and Huckleberry Finn books." The statute defining deadly weapon and the cases applying it simply did not include pocket-knives.

Following its analysis, the Court came to the common sense conclusion that a pocket-knife is no more a deadly weapon than a rock, both of which can be used to inflict deadly harm. The key to analysis in any particular case is the intent of the party possessing the pocket-knife or other potentially deadly weapon not specifically identified in the statutory definition. The court recognized that many objects, lamps, chairs, rocks, dishes, bottles and yes pocket-knives may and have become deadly weapons with the requisite intent. However and most importantly to the ruling, the Court stated that the issue of intent must go to the jury.

Zero Tolerance has led in the past to many similar such charges. The Court in Nick R. has introduced some common sense to ongoing enforcement. There are some things that should be left to the schools and parents. Hopefully, in the future, a simple and innocent mistake like Nick's will be left to the school and parents to address without the unnecessary and heavy-handed intervention of law enforcement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Texting and driving is dangerous. The topic of texting and driving has gotten a lot of attention in the past year even making Oprah. The attention is well deserved.

A Car & Driver Magazine study found that texting and driving was more hazardous than drinking and driving. The study found that texting drivers had a breaking response time 3 to 4 times slower than drunken drivers. The Car & Driver findings are backed up by National Highway Safety Administration (NHTSA) which found that texting is among the most serious and dangerous distractions facing drivers causing close to 6000 deaths and 500,000 injuries in 2008 alone.

Now prosecutors are taking note. A jury recently found a texting bus driver guilty of reckless driving as a result of a texting related auto accident. The video footage from the bus showed the driver checking texts for a full 6 minutes prior to his rear ending another vehicle at 35 mph. It took the jury only ten minutes to find him guilty.

The behavior of the driver was particularly egregious so the finding perhaps was not surprising. What texting drivers may want to consider is that this may indicate a trend on the part of prosecutors. The numbers of deaths and injuries caused by texting will certainly get the attention of prosecutors. In addition, texting is growing in usage not shrinking suggesting that the problem could worsen.

Such a trend in New Mexico could prove particularly painful for texting drivers. A first time conviction for reckless driving carries a mandatory jail sentence of 5 days. A second or subsequent offense carries a mandatory 10 day jail sentence. A first offense carries up to 90 days and a subsequent up to 6 months. This means that judges have a great deal of latitude in sentencing. A reckless driving conviction coupled with an accident would likely push the jail time up. Of course, an accident involving death would likely carry vehicular homicide charges.

If the specter of having caused harm to another as result of texting or the certain personal injury lawsuit resulting from a texting related auto accident is not enough to deter texting and driving, there is the possibility that penal consequences will be brought to bear on the issue. If the Texas verdict marks a trend, the text you are about to send will seem significantly less urgent in the event of an accident.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

A recent New Mexico Court of Appeals case portends possible targeting of DWI/DUI passengers for prosecution in DWI/DUI cases, particularly those involving accidents with injuries.

In State v. Patrick Marquez, the defendant was charged with and pleaded to 2 counts of homicide by vehicle and 3 counts of injury by vehicle. Remarkably, Mr. Marquez was not the driver of the car but the passenger. Mr. Marquez entered a conditional plea filing an appeal on whether or not there was any such crime as accessory to homicide by vehicle. The Court in Marquez found that there was.

The facts are pretty straightforward. Mr. Marquez and his friend Leo Lucero spent the night drinking together going from one bar to the next as bars successively refused service due to their high levels of intoxication. Finally, Mr. Marquez purchased a 12 pack of beer and the two took to the road to continue their evening of drinking. Mr. Lucero plowed into the back of a passenger van killing 2 and badly injuring 5 of the occupants of the van.

DWI/DUI resulting in death or injury has always carried possible charges for homicide by vehicle or great bodily harm by vehicle. However, this is the first case that has reached the appellate court where a passenger has been charged as an accessory under the Motor Vehicle Code §66-8-120 which reads in part:

"Every person who commits, attempts to commit, conspire to commit or aids or abets in the commission of any act declared herein to be a crime, whether individually or in connection with one or more persons or as a principal, agent or accessory, shall be guilty of such offense..."

It remains to be seen whether this case spells a trend for prosecution of DWI/DUI passengers in cases of injuries or death. The scope of §66-8-120 is also unclear. The facts in this case and the behavior of the defendant were pretty egregious. However, the basic fact pattern is not that uncommon with a passenger knowingly getting into a vehicle with an intoxicated driver. The language of §66-8-120 does not limit its scope to cases of death or great bodily harm. Instead, the language says that a passenger who knowingly gets in a car with a drunken driver is guilty of all offenses under the Motor Vehicle code committed by the driver. This could arguably include the simple DWI/DUI charge even in the absence of an accident.

In a state where prosecutors and police formerly charged drivers for DWI while they were sleeping in their vehicles prior to intervention of the New Mexico Supreme Court, it might be expected that there will be prosecutors that push the bounds of this ruling. Until we hear from the Supreme Court on this case or the legislature places some limitations on the language of §66-8-120, would be passengers to a DWI would be well advised to find alternate transportation and to encourage their drunken friend to do the same. As a matter of fact, that might just be a good policy generally.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The State Department has recently dramatically redefined grounds of inadmissibility for mental and medical disorders. The new State Department guidelines could result in admissibility of those convicted of DUI/DWI. Thus, as is many criminal matters, the immigration consequences may now greatly outweigh the penal consequences. The results may be particularly harsh for first time simple DUI/DWI offenders who in New Mexico face no jail time at all.

The changes in the guidelines focus on substance-related disorders and physical or mental disorders associated with harmful behavior. Mere existence of a physical or mental disorder will not alone trigger inadmissibility. The disorder must be accompanied by associated harmful behavior.

The harmful behavior fitting the criteria for inadmissibility has been broadened to include DUI/DWI. In the past, DUI/DWI did not affect immigration status since it constituted neither an aggravated felony or a crime of moral turpitude. The redefined guidelines have vastly worsened the possible immigration consequences of a DUI/DWI.

Alcohol abuse is expressly defined as a medical condition that could lead to inadmissibility. Though alcohol abuse alone does not necessarily make a visa applicant inadmissible, alcohol abuse associated with other harmful behavior may. Associated harmful behavior would include any threat to the property, safety or welfare of the foreign national or others. DUI/DWI is specifically included within the definition of harmful behavior.

As a result, any visa applicant will now be referred to panel physicians for evaluation if the applicant has been arrested once within the past 5 years, or twice within the past 10 years for an alcohol related offense. This would include arrests for DUI/DWI. It could also include other alcohol related arrests.

Visa applicants would be well advised to seek the services of an immigration attorney prior to seeking admission to the United States. Perhaps more importantly, any immigrant with prior DUI/DWI or other alcohol related convictions should consult with an attorney prior to any trips outside the U.S. since reentry may be barred under the new State Department guidelines.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Texting has grown very popular over the last few years. Anyone who has provided a mobile phone to their child has learned one way or another the annoying popularity of the practice among teens. Most of the time, the constant texting is simply an annoyance asdinners are interrupted, cars are wrecked, and conversations are stopped dead as a result of the uncontrollable urge to text and be texted.

Unfortunately, texting can have far worse consequences than your reprimands. Texting often leads to sexting (the transmission or receipt of nude or semi-nude pictures or video from mobile phones) which has become almost epidemic among teens. A report from the National Campaign to Prevent Teen & Unplanned Pregnancy estimates that 22% of teen girls, 18% of teen boys, 11% of young female teens aged 13 to 16, and 20% of teens overall have engaged in the practice. A poll from the Associated Press and MTV suggests even higher numbers.

For the most part, sexting by and among teens seems relatively harmless. Although, no STD's have yet been identified with the practice, the harms may be much greater and like some last a lifetime. Unfortunately, the laws have not kept up with technology. As a result, sexting will be forced into the old legal definitions. The result is that sexting is often charged under child pornography laws.

Transmission, receipt, or possession of child pornography carries extremely serious consequences. Under federal law, for instance, there is a statutory minimum of 5 years for the receipt of child pornography. Transmission and creation carry even more severe penalties. State laws are equally severe. In addition, each transmission or receipt may be charged separately. For juveniles, the sentencing is typically much less severe. However, one aspect of a conviction for child pornography that is as bad for juveniles as it is for adults is sex offender registration. So even if a teen escapes any incarceration at all, registration as a sex offender could more or less destroy their lives.

This may seem like overkill for sexting by teens but it is the reality. Talk to your kids. A short lapse in judgment can have a lifetime of consequences. This goes for sender, the receiver and anyone that retransmits the images. The worries for parents never end as teens now have a whole host of new tools at their hands to get themselves in trouble. Unfortunately, most parents and their teens are completely oblivious to the dangers of their new toys.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

New Mexico takes DWI extremely seriously and for good reason. New Mexico has for years ranked among the national leaders in DWI accidents and fatalities. Unfortunately, many DWI fatalities in New Mexico and other states involve child passengers.

There is a growing trend in New Mexico and other states to charge DWI drivers with child abuse when children are present in the car at the time of the DWI offense. In New Mexico, parents charged with DWI with their children present often find themselves charged with Abandonment or Abuse of a Child, a third degree felony carrying up to 3 years in prison for the first offense.

The law is intended to protect children from the dangers of drunken driving. The law is admirable in its intentions. However, the way the law is enforced can lead to some rather draconian results. For instance, there is a trend across New Mexico, particularly in Albuquerque, to charge drivers with DWI at breath alcohol levels below, often well below .08. Not only are drivers being charged at these levels, they are regularly being convicted. The conviction of DWI at these levels would carry with it possible conviction for Abandonment or Abuse of Child when children were present.

It is impossible to identify any standard in DWI arrests and prosecution in cases involving breath alcohol levels below .08. instead, the prosecutor need only show that the driver's ability to drive was "impaired to the slightest degree." Your guess is as good as mine as to what the this means other than you are impaired if the officer, sometimes right out of the police academy, says you are impaired. This is no standard at all and when New Mexico parents may face felony prosecution for child abuse for a glass of wine or two with dinner, lack of standards is unacceptable.

There was legislation presented in the last legislative session to redress the problems with such a vague standard. Unfortunately, no action was taken on the bill. Worse still until the standard is addressed, families could be torn apart by overly aggressive and misguided enforcement of DWI laws. Many would argue that no alcohol at all is acceptable before driving. Perhaps this is a valid position but it is not the law. The law is meant to deter driving impaired by alcohol.

If New Mexico's intent is to completely prohibit alcohol and driving, then pass a law to that effect. At least then drivers will know that it is against the law to drink even a little and get behind the wheel. What is not acceptable is leaving it at the sole discretion of the officer to decide whether or not you are impaired despite a low breath alcohol level, exposing law abiding citizens to DWI and child abuse charges. The legislature needs to act one way or the other and it needs to hear your voice no matter which side you are on. Contact them now.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

In State v. Toms, the New Mexico Court of Appeals addressed the foundational requirements for admission of breath alcohol score results in a DWI trial. The Court in Toms reiterated the ruling in the 2007 New Mexico Supreme Court case of State v. Martinez. In addition, the Court expanded on Martinez in addressing the proper procedural grounds by which a defendant may attack the foundation of the breath alcohol results.

The Court first stated that calibration of the machine by the officer was not enough. Though calibration of the machine is a measure to insure the accuracy of the breath alcohol score, it is insufficient to establish the foundation for admission of the score into evidence at trial. In addition, as stated in Martinez, the State must prove by a preponderance of the evidence that the machine has been properly certified and the certification is current at the time of the test. The State in short must show that the machine has been properly certified, the certification is current, and the machine was certified by the Scientific Laboratory Division of the Department of Health (SLD).

Failure to fully establish the foundation for admission of the breath alcohol score will render the evidence inadmissible. These foundational requirements are meant to insure the accuracy of the breath alcohol scores and to protect defendants against unreliable or inaccurate tests results. The State argued that the defendant must raise the issue prior to trial. Effectively, the State argued that the defendant was obligated to alert the State to weaknesses in its case prior to trial in essence providing the State with the opportunity to cure the defect.

Fortunately, the Court disagreed. This foundation is the State's responsibility, not the defendant's. The Court expressly expanded on Martinez to address the State's argument. The Court stated that the defendant has no obligation to raise the deficiency in the State's case via pre-trial motion as the trial court and the State had suggested. The Court stated that the state has the burden of laying the foundation for the breath alcohol test results and that the Court would not "require the defense to file a pretrial motion simply to advise the prosecution that it may have a defect in its proof or some problem in establishing the appropriate evidentiary foundation."

DWI is enforced very vigorously in New Mexico for good reason. DWI is a threat to the safety of all of us and our families who drive New Mexico roads. However, on occasion, DWI is perhaps enforced a little too vigorously as was the recently invalidate practice of arresting drivers who were sleeping in their cars, and the continuing practice of arresting and prosecuting drivers at breath alcohol levels below .08. Fortunately, the Court in State v. Tom has not shifted the burden of prosecution to the defendant him or herself by placing the responsibility of foundational elements to the defendant. After all, the defendant should not carry the burden of prosecuting him or herself despite the efficiencies that would come from such a requirement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com