Albuquerque Criminal Lawyer Blog

New Mexico continues its crackdown on DWI. In keeping with its goals, the consequences for DWI conviction are growing increasingly harsh in New Mexico. This is so for all levels of offenders, including first time DWI offenders.

In the past, and under sentencing for most crimes other than DWI offenses, a person placed on probation is given credit against his or her total sentence for all time served on probation. In other words, if a person is placed on one year of probation and violates 6 months in, he or she is exposed only to 6 months jail time on the remaining term of the sentence.

In the case of DWI offenders, the State of New Mexico has taken a fairly harsh position. For DWI offenders, there is no credit against the total deferred or suspended sentence for time spent on probation. As such, in the prior example, if a person violates 6 months in on a one year term of probation for a DWI offense, he or she is facing the full one year jail sentence.

The statutory language of NMSA §66-8-102(S) is clear stating in part, "the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation." The statute applies to all levels of DWI offenders including first time offenders. Lest anyone believe otherwise, the New Mexico Court of Appeals in State v. Ordunez states "Subsection (S)...is applicable to all levels of DWI offenders who violate probation..."

Subsection (S) was addressed in the State v. Ordunez in the context of jurisdiction following the lapse of probation. The primary concern in Ordunez was whether or not the court had lost jurisdiction over the defendant to implement the harsh provisions of Subsection (S).

In Ordunez, the defendant pled guilty to felony DWI. He was sentenced to 2 ½ years, with all but two suspended. This means he was only to serve 6 months in jail with 2 years of probation following release.

Mr. Ordunez violated his probation in the last month of the 2 year probationary period. The State moved to revoke his probation seeking the full two year sentence term. Fortunately for Mr. Ordunez the case did not get to court prior to the expiration of his 2 year probation period.

Because his probationary period had lapsed prior to the probation revocation hearing, the district court held that the court had lost jurisdiction over Mr. Ordunez. The New Mexico Court of Appeals in State v. Ordunez agreed. As such, Mr. Ordunez was spared the consequences of the application of Subsection (S) to his violation of probation.

Mr. Ordunez dodged a bullet through sheer luck, overloaded district attorneys and overcrowded court dockets. In light of the ever increasing penalties for DWI, a DWI offender would do well to avoid even the smallest technical violations of probation. It is not worth the risks. And, it is unlikely that most will be so lucky as Mr. Ordunez in the case of motivated prosecutor and a receptive judge.

Collins & Collins, P.C.
Albuquerque Attorneys

Sentencing is New Mexico felony criminal cases can be pretty tricky as both the prosecution and defense argue their positions to the judge. The State typically argues that the defendant should spend time in prison while Defense counsel argues against prison time.

Sentencing is greatly complicated when there is a firearm involved with the felony charges. When the defendant is convicted of a felony and a firearm is used, there really is no opportunity for the Defense to argue for deferred jail time. In other words, the defendant, if convicted, is going to prison. Prison time is mandatory.

When a defendant is convicted of a non-capital felony and through a separate finding of fact by the jury it is determined that a firearm was used, the judge shall increase the sentence by one year. For a second felony conviction where a firearm is used the sentencing is enhanced by three years.

It is important to realize that a firearm is defined as a weapon designed to propel an object by an explosion. There is a significant distinction between a firearm and a deadly weapon. Many objects may be used as deadly weapons. Much of the classification of a deadly weapon depends upon intent. As such, a lamp if used with deadly intent constitutes a deadly weapon. Firearm classification is more restrictive. For instance, a bb gun or even a C-O2 air gun may constitute deadly weapons depending upon the intent and use, but neither are considered firearms.

The Defendant is looking at mandatory jail time for firearm sentencing because the Judge is mandated by law to enhance the sentence. Moreover, the defendant must spend the entire firearm enhanced sentence in prison. "Good time" reduction in sentencing is not allowed.

There are a few defense strategies that may avoid the felony firearm enhancements. One possible strategy used by Defense Counsel to avoid jail time is to negotiate with the state and plea bargain the underlying felony offense to a misdemeanor. When the felony is pled down to a misdemeanor, the firearm enhancement is taken out of the equation in determining sentencing.

Another possible approach is through the jury instructions issued to the jury at trial. The goal is to include a lesser misdemeanor offense in the jury instructions. This will allow the jury to consider the less serious offense. If the jury finds guilt on only misdemeanor offenses, the felony firearm enhancement is not in play because the underlying charge is a misdemeanor and not a felony.

Firearm charges are extremely serious. They take many possible defense and plea options off the table. Anyone facing a firearm related charges would be well advised to contact an experienced New Mexico criminal law attorney as early in the criminal process as possible.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico's Winter DWI Superblitz began yesterday. The Superblitz will run through January 9, 2011. The timing of the Superblitz is no accident. DWI driving along with DWI accidents go up tremendously during the holiday season.

The State hopes to deter drunk driving over the holidays. The anti-DWI campaign will come with significant public exposure and advertising including TV ads, newspapers ads and billboards.

This is not unusual. Operation DWI in New Mexico has been going since 1993. The campaign has been pretty effective at reducing DWI related crashes and fatalities. According the New Mexico DWI Resource Center, alcohol related accidents dropped by over 25% from 1997 to 2006 (from 3884 to 2871). During the same time period, alcohol related accidents involving serious injury or death dropped by over 45% (from 1333 to 703 per year).

There is no data available after 2006 but it appears that the trends have continued in the same direction. Hence, the Superblitz which will last through the entire holiday season. Of course, the state will continue to utilize the 100 Days and Nights of Summer and other operations throughout the year that include 75 to 100 checkpoints throughout the State during the anti-DWI campaigns.

What does this mean for you? It means simply do not drink and drive. Not even a little. Most assume the standard for DWI arrest is a .08 breath alcohol level. This is not the case in New Mexico which instead follows the "impaired to the slightest degree" standard. There have been countless drivers convicted under this standard despite being below, sometimes well below the traditional .08 standard.

As such, if you are stopped at a checkpoint and either admit to drinking of the officer either smells even a hint of alcohol, you will be asked to exit your vehicle for some holiday exercise walking heel to toe, doing nice tight turns, balancing on one leg, and so on. Then of course, there will be the night in jail where you will be sure to keep up that New Year's fasting resolution. Not the way you wanted to burn off the holiday calories.

And that's just the beginning of the DWI process which can end with some pretty serious criminal and civil consequences.

Seriously, Don't Drink and Drive. Not Even a Little!

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The great majority of juvenile criminal cases, whether misdemeanor or felony, do not go to trial but end with a plea bargain.

As part of the plea bargain the delinquent child is usually put on probation. As soon as the plea agreement is signed the judge orders the delinquent child to meet with an intake probation officer, and then they are assigned a permanent probation officer.

Terms of probation range from six months to 2 years though the court can exercise jurisdiction and extend probation until the delinquent turns 21. In fact, every offense under the juvenile code carries up to two years in detention. Actual incarceration is the exception for all but the most serious and/or serial repeat offenders and those children that simply will not comply with the terms of probation.

It is the job of the probation officer to monitor the child to make sure they are in compliance with their probation agreement. Some of the conditions in the probation agreement include but are not limited to obeying all state and federal laws, going to school, not possessing weapons, not associating with certain individuals, restrictions on driving privileges and getting a job. In addition, there are two more that trip kids up the most: violations of curfew and violation of the prohibition on the use of drugs or alcohol (particularly marijuana).

Probation Officers set up appointments for the child to come to their office so they can meet. During that meeting the Juvenile Probation Officer will often ask the child to take a urine analysis to test for drugs and alcohol. If the child tests positive for drugs or alcohol the probation officer can ask the children's court attorney to revoke the delinquent's probation and spend the rest of their sentence in jail. More common for a first dirty urine test, the probation officer will call for more frequent meetings with probation along with random urine testing.

Assuming all else fails in the supervision of the child, the probation officer may recommend the revocation of probation. In order to revoke the child's probation, the children's court attorney must file a probation violation which will be followed by a hearing where the probation officer states the violation and makes a recommendation to the Judge. The Judge may revoke probation or some other type of sanction to get the child's attention to comply with the probation agreement.

If at the tail end of a probationary period the child is not complying and the child is over the age of eighteen, the probation officer may suggest a 15 day and cut. A fifteen day and cut means that the child will spend 15 days in jail and is cut from probation with an unsatisfactory discharge.

Finally, and perhaps most importantly for those children that are serious about turning things around, the probation officer does have discretion to request that the court release the child from probation early. As such, if a child is doing well on probation, the probation officer may ask the Judge to reduce the amount of time the child is on probation. This should serve as a great incentive for compliance if possible detention is not enough.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Though it can be a pain, failure to balance your checkbook can be significantly more painful in New Mexico. Under New Mexico's Worthless Check Act, a bounced check over $25 may be charged as a felony.

Business establishments may report individuals who write bad checks to the District Attorney who will prosecute the matter. It is a serious crime in New Mexico to write a check without enough funds or credit in your account. This is particularly true of late with a new focus on property crime in Albuquerque. The possible penalties for even inadvertent NSF checks (hot checks) can be severe.

The penalty for writing a NSF check for over $1 but less than $25 is a fine up to $100 and up to thirty days in jail or both. The penalty for writing a NSF check for over $25 is a fine up to $1,000 and imprisonment of not less than one year and up to three years in the Department of Corrections. The penalties are intentionally severe with the Worthless Check Act's stated purpose to "remedy the evil of giving bad checks".

The defense to these charges is rather limited. Defenses to these types of cases are limited to such things as a stolen check book or identity theft. Failure to balance the checkbook is not a defense.

District Attorneys and prosecutors in the State of New Mexico work closely with small businesses in the community to prosecute check fraud. Once a person is on notice that they are being prosecuted for a worthless check it is important to immediately address the charges. Though there are few defenses, there are several possible early resolutions to the charges.

These include diversion programs, pre-indictment resolutions, pre-prosecution probation, and other possible resolutions to avoid jail time. In some cases, depending on the circumstances, it may be possible to avoid felony charges altogether. In many others, it is possible to eventually clean up your criminal with a resolution that results in an eventual dismissal.

Diversion Programs offer a very good alternative for those charged. The Diversion program is an alternative for the District Attorney to prosecuting a worthless check case. The essence of Diversion is restitution. In short, the person gets to work out a payment plan and the case will be dismissed by the District Attorney.

Where Diversion is not an option, there may be other options to keep a conviction off a person's criminal record. In all these cases, it is critical to address the problem early. Ignoring the problem, like ignoring the checkbook balance, is not a solution. The further the case moves along, the fewer the options available for resolution.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

As part of the rehabilitative approach of the juvenile criminal justice system, judges, defense counsel, prosecutors, and juvenile probation take a progressive approach in dealing with juvenile delinquents. For example, each county will typically have its own drug court program which is an alternative to prosecuting a child with substance abuse issues.

Drug Court takes a progressive approach to juvenile substance abuse issues. Therapists, probation officers, and drug court staff help both the child and the child's family to address the substance abuse issue. The child and the parents participate in family counseling. The child will attend alcohol and substance abuse counseling. The child will also undergo random urine analysis. In addition, the child will participate in outdoor team based confidence building activities to help the child stay clean.

Drug Court is an option for juveniles who have a criminal history that includes drug or alcohol related offenses. Upon entry, the juvenile must have a clean urine analysis to establish base levels for future drug testing. Once admitted, there are four stages of Drug Court that the juvenile must complete. Stage one will not commence until the child has a clean urine test. Each stage must be completed prior to moving to the next stage.

Drug Court can be completed in six months if the juvenile takes it seriously and complies with all of the demands placed on him or her. However, if a juvenile commits a violation while in drug court, the Drug Court team will vote on the type of sanction that should be imposed on the juvenile.

Common violations include but are not limited to a missed or positive (dirty) urine test, curfew violations, new criminal charges and truancy. The sanctions vary from not being able to move to the next stage to house arrest. For repeated violations, the juvenile may be kicked out of the Drug Court program. Termination from Drug Court is considered a serious probation violation frequently resulting in immediate detention (lock-up).

In short, Drug Court is a rather progressive approach to juvenile drug offenses. However, it is a double-edged sword. Drug Court is very demanding of its participants. Many kids simply cannot meet the burdens of the program. Unfortunately for those kids, there are few remaining options other than detention.

Those kids that are sentenced to and successfully complete Drug Court often turn their lives around. For those, both the child and the parents are typically very grateful for the assistance Drug Court provides in dealing with a very serious problem before it has gotten out of hand.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The juvenile criminal justice system's philosophy is treatment based rather than detention or punishment based. In Albuquerque and Rio Rancho in particular, the juvenile justice system tends to be more liberal toward first time non-violent criminal offenders.

In fact, minor first time offenses such as minor misdemeanor cases are often resolved informally with the juvenile probation office through informal probation. In these cases, the file is not even forwarded to the prosecutor. If the case is sent to the prosecutor, there is still a chance on first time non-violent offenses to resolve the case early in the process.

In the interest of rehabilitation, the District attorney or prosecutor will often give the child a break on a first time non-violent offense. This break typically comes in the form of a Time Waiver. The Time Waiver is a document which is unique to the juvenile justice system. Under the United States Constitution, all those charged with a crime including children are entitled to a speedy trial. The Time Waiver is a document that waives an individual's right to a speedy trial. It basically tolls the case for a period of 6 months. So long as the child stays out of trouble and complies with all conditions of the Time Waiver during the 6 month period, the District Attorney will dismiss the case.

By entering a Time Waiver, the State is allowed to sit on the case for 6 months without the threat of dismissal on speedy trial grounds. Essentially, the Time Waiver allows the District Attorney to maintain some level of supervision over the child without a conviction or formal probation. Outside of an outright dismissal of the charges, which is very rare, a Time Waiver is the most favorable resolution that a child may expect.

There is of course no guarantee that a child will get a Time Waiver. There are a number of factors the district attorney will consider in the offer of a Time Waiver. The most immediate is of course the seriousness of the charges. Other factors include the child's prior contacts with law enforcement, criminal background, gang affiliation, school attendance and grades.

Perhaps the most important factor is the parental support and supervision of the child. Prior to criminal charges, the juvenile probation officer will meet with the child and the parents during a preliminary inquiry to find out how the child is doing in school and at home. The juvenile probation officer will seek to determine whether or not there is a good home environment with strong parental support. If the parents are supportive, the child is doing well in school and the charges are for a first time non-violent offense, then there is ,at least in Albuquerque and Rio Rancho (other jurisdictions will vary), the possibility of Time Waiver.

The Time Waiver is a very favorable outcome. It is hoped by all in the juvenile justice system that the Time Waiver is sufficient to get the child back on track. If it does not, then the next go around is likely to be significantly more unpleasant for the child.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The New Mexico Habitual Offender statute is a tool available to the prosecution and the courts to enhance the sentence of a felony defendant who has a prior felony conviction within ten years of the date of the newly alleged crime. If the defendant is deemed a Habitual Offender, the statute increases the defendant's prison exposure significantly.

A habitual offender finding has very serious penal consequences. The first felony increases the sentence by one year, the second felony by four years and the third or subsequent felonies by eight years. The New Mexico Court of Appeals addressed the issue of double jeopardy in habitual offender sentencing in State v. May. Specifically, the Court addressed the use of a gun offense as both a separate crime as well as an enhancement to the underlying drug trafficking charges.

In 2007 Defendant James May pled guilty to "felon in possession of a firearm," a fourth degree felony along with several other misdemeanors. Maximum exposure for a fourth degree felony is 18 months and an additional 364 days for each misdemeanor. After the guilty plea was entered, the Prosecutor filed a supplemental criminal information alleging that James May was a habitual offender. The State sought to enhance the base felony sentence by four years.

The defendant May had 3 prior felonies. The state used as predicates one prior 2005 State felony conviction and one prior 1991 Federal conviction. Interestingly, the Court disregarded the State felony from 2005 summarily stating that it was not concerned with that case.

Instead, the Court focused on May's 1991 convictions. In 1991, May was convicted under federal law for Possession with Intent to Distribute Methamphetamine. Arising out of the same incident, the defendant was convicted of Carrying a Firearm during a Drug Trafficking Crime under 18 U.S.C. Section 924(c)(1). Rather than take what would seem to be the easier route for legitimating the 4 year enhancement with the one Federal conviction and the 2005 State conviction, the Court instead chose instead to use the two 1991 convictions.

It is well accepted that the State cannot use the same prior felony conviction twice during sentencing. However, the court determined that double jeopardy does not prohibit the use of two convictions for enhancement under two separate statutes as long as the predicate crimes are separate incidents of criminal conduct. It does not matter that both arose from the same judgment and sentence and the same underlying crime.

The defendant argued that the 924(c)(1) firearm crime was an enhancement of the original possession conviction and could not also be used to enhance the later State sentence. The Court disagreed finding that the federal firearm offense was clearly under federal law a separate and distinct conviction from the possession crime despite the fact that the two charges arose out the same incident. As such, the Court found that the 1991 convictions could serve as the basis for the 4 year enhancement.

Unfortunately for the defendant, the Court did not buy his double jeopardy arguments regarding duplicate use of the same offense for enhancement purposes. On the other hand, by the court's reasoning, the defendant might have dodged the 8 year enhancement by virtue of the Court ignoring the 2005 State court conviction.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Legal situations like domestic violence or DWI can have far-reaching consequences. Aside from the attorneys fees, court costs, fines and possible jail time, a potential military recruit may be denied enlistment in the armed forces if they are currently dealing with or have been involved in certain legal situations.

The military is not meant to be rehabilitative in nature. Gone are the days when the military was a possible escape from criminal prosecution. Prior to entry into the military, an initial screening process is conducted in an attempt to minimize the likelihood of receiving recruits who are disciplinary problems or who may become security risks. What's more, there are some legal situations, including domestic violence, which may exclude a potential recruit from the ownership and use of firearms. Consequently, the recruit would not be able to perform job functions requiring the use of weaponry.

Military recruiting offices may run background checks on potential recruits, including police and court checks. It is best to disclose any legal situation, past or present, up front. Failure to fully disclose may itself be grounds for denial.

During the interview process, the recruiter will ask about arrests, current or dismissed charges or convictions, as well as probation, incarceration or parole periods. In addition, they will ask about juvenile criminal histories, including proceedings that were either sealed or expunged. They will even ask about traffic violations.

In some cases, a waiting period may be required before a recruit can enlist. In other situations, a waiver can be requested that might permit enlistment despite the potential disqualification. Each applicant is considered on a case by case basis.

Each branch of the armed forces may have slightly different regulations; however, some of the regulations that the U.S. Army follows involve:

• considering an unpaid paid parking ticket a disqualification as a pending charge;

• considering multiple charges for the same event individually;

• requiring a waiver in several situations regardless of how the case was decided, including domestic violence situations and serious criminal misconduct, even when the case was decided in the potential recruit's favor;

• discharging anyone who conceals a legal situation that requires a waiver, considering this "fraudulent enlistment".

In situations where a waiver may be permitted, it is up to the applicant to provide proof that they have overcome the disqualification and that being accepted would be in the best interest of the military. Court documents, evidence of rehabilitation and even letters of recommendation may be required.

There are certain legal disqualifications that cannot be overcome by a waiver. Some of these include intoxication at the time of application, ongoing alcoholism or drug abuse and a history of psychotic disorders. However, recruiters are more than willing to sit down with an applicant and review any potential legal disqualifications. Again, each applicant is considered on a case by case basis.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com