Albuquerque Criminal Lawyer Blog

The holiday season is a joyous time of year when people get together and celebrate. It's important to remember if you're going to drink, do it responsibly. New Mexico is serious about keeping drunk drivers off the road. Law enforcement is aware people will be drinking and driving during this time of year so they are quite busy, by performing super blitzes and added DWI checkpoints.

This is something to keep in mind this holiday season as it happens far too frequently good people get arrested for DWI. When going to holiday parties make sure there is a designated driver if you plan to consume alcohol. Any alcohol!

This is especially important if you bring the kids to the holiday party. When a person is charged with DWI and a child is in the car, the driver will routinely face a charge of negligent child abuse in addition to the DWI charge.

Negligent child abuse is a third degree felony. Typically officers will charge one count of felony child abuse if there are one or more children in the vehicle. However, it is possible that a separate count of felony child abuse could be charged for each child.

DWI charges are disastrous in their own right. Felony child abuse is far worse. For first time offenders, it is a third degree felony. For second and subsequent offenses, it is a second degree felony. In the event the child is injured, it's a first degree felony.

If convicted of DWI, it is fairly simple to get a conviction of felony child abuse. The reasoning behind the charge is adults are putting children in a situation that may endanger the child's safety. The consequences of a felony conviction are severe. A basic sentence for a third degree felony is imprisonment for three (3) years and a fine not to exceed five thousand dollars ($5,000). It gets far worse for 2nd and 3rd degree felonies. These charges and penalties are in addition to the DWI fees and fines which are steep in themselves.

Have a happy and safe holiday season with your family. If you drink, do not drive!

Collins & Collins, P.C.
Albuquerque Attorneys

Many New Mexico courts, including Albuquerque's Metropolitan Court, offer a domestic violence early intervention program for first time offenders. In order for a candidate to enter the program, the defendant, district attorney and presiding judge must all agree to a referral to the Early Intervention Program.

Assuming that the case is referred to the Early Intervention Program, the criminal case is stayed and is now basically in limbo. The case is taken off the presiding judge's criminal docket and transferred to the judge who oversees the Early Intervention Program.

An Early Intervention Program staff member interviews the candidate to ensure that the program is a good fit. The staff member is interviewing the person for two primary reasons. First, it must be determined that the person is voluntarily entering the program. Second, the defendant must admit some wrongdoing and that counseling would be beneficial.

An admission of wrongdoing is not the same as admitting guilt. Neither is it admitting to the allegations of the alleged victim. It is simply an admission of some wrongful behavior which would indicate and benefit from counseling.

On the other hand, a person who denies any wrongdoing at all is not a good candidates for the program. In the absence of some admission of wrongful behavior and the need to change the behavior, the defendant will not be admitted to the program.

Admission to the program carries with it a minimum of 6 month of supervised probation. While on probation, the person must comply with the a number terms. The standard terms include no further violations of law, no new domestic violence charges, no drugs or alcohol, and the completion of counseling. In addition, the individual must meet with his or her probation officer twice a month for the first 90 days. Depending on progress, this may be reduced to once a month after 90 days.

The goal of the program is for people to develop new relationship skills. As such, the most important part of the program is the completion of counseling. Counseling is provided by private sector domestic violence counseling programs authorized by the Court.

It is said that Domestic Violence is based on power and control not necessarily anger management. Physical abuse, manipulation, verbal abuse and demeaning comments are all forms of degrading and abusive uses of power and control often indicating the presence of and/or risk of domestic violence. Students are taught empathy, personal boundaries and communication skills to prevent future incidents.

The program has a high success rate due in part to the admission requirements. The program has a graduation rate of about 90% and a recidivism rate of only 8%. Not only does the individual benefit from counseling thereby avoiding future charges of domestic violence, completion of the program results in a dismissal of the charges. The value of avoiding conviction and the consequences of a domestic conviction cannot be overstated.

Collins & Collins, P.C.
Albuquerque Attorneys

Juvenile criminal offenders may be charged as adults for the commission of very serious criminal offenses. In order to charge the child as an adult, and thereby expose the child to adult criminal sentencing, the Court must conduct an amenability hearing.

The amenability hearing is held to determine whether or not the juvenile is amenable to treatment and rehabilitation through the juvenile justice system. If the court finds the juvenile is not amenable to treatment and rehabilitation, then the child is tried as an adult. The consequences for the child are enormous as the child is taken outside the sentencing scheme of the juvenile justice code which limits possible incarceration up to the child's 21st birthday.

The New Mexico Supreme Court in State v. Rudy B took up the issue of whether amenability findings should be determined by a jury. In New Mexico, these findings have always been done by the judge. The attorneys for Rudy B challenged the judge based amenability under the 2000 Unites States Supreme Court case of Apprendi v. New Jersey.

Apprendi held that any fact that would result in a penalty beyond the statutory maximum must be heard and determined by a jury. Certainly, an amenability hearing involves facts and evidence that would lead to penalties beyond the maximum sentencing under the juvenile code. In very serious cases, such as the violent offenses involved in Rudy B, the defendant is looking at some very lengthy incarceration well beyond the typical jurisdiction of the juvenile courts.

The Rudy B opinion was pretty lengthy going into the history of amenability adjudications in New Mexico, Apprendi and Oregon v. Ice. The 2009 U.S. Supreme Court in Oregon v. Ice allowed an exception to Apprendi in a case involving concurrent sentencing. However, Oregon v. Ice seemed to be fact specific in that the concurrent sentencing was for completely separate and independent criminal acts.

The New Mexico Supreme Court then framed the discussion of Oregon v. Ice as the refusal of the Court to extend the role of the jury into concurrent v. consecutive sentencing settings where the jury had traditionally played no role. This was an interesting stretch of logic in to say the least.

The Court in Rudy B, based upon its reading of Oregon v. Ice, then took us through the history of amenability hearings in New Mexico. In the end, after a nostalgic trip through history, the Court said judge based amenability was not a violation of Apprendi because it had always been done this way in New Mexico.

It is interesting and disappointing that the Court would resort to the same logic that has reinforced all manners of legal and social injustice in the past: "It's just the way it is. It has always been this way."

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court once again reaffirms the greater protections afforded under the New Mexico Constitution than under the United States Constitution.

The ruling came in a case involving illegal search and seizure. The Court in State v. Erica Rivera readily acknowledged that the search and seizure would have passed muster under the 4th Amendment and federal case-law. However, the Court stated that Article II, Section 10 of the New Mexico Constitution provided greater protections against unlawful search and seizure.

The facts of the case are interesting. Marijuana was shipped to the defendant in Albuquerque via El Paso-Los Angeles Limousine Express bus service. Unfortunately for Ms. Rivera, her package ended up in Denver. Bus employees found the package suspicious and opened it to find marijuana. The bus employees then reported it to a DEA agent who requested that the package be forwarded to Albuquerque. The bus employees complied resealing and shipping the package. Upon arrival, the DEA agent and bus employee in Albuquerque reopened the package. Ms. Riveras was charged with possession of a controlled substance with intent to distribute

First, the Court noted the well established principle that 4th Amendment search and seizure rules do not apply to searches conducted by private parties. As such, the actions of the bus employees in opening the package did not give rise to a violation of the 4th Amendment. The Court further recognized the "private search doctrine" which allows a private search to be replicated by law enforcement.

The Court recognized that the search in this case would have met the requirements of the private search doctrine set forth in the 1984 U.S. Supreme Court case of United States v. Jacobsen. In so doing the court restated Jacobsen: "The rationale for this doctrine is that by conducting a search subsequent to the private search, the agent is not learning anything that he did not already know as a result of what was disclosed by the private search."

However, the Court stated that Article II, Section 10 of the New Mexico Constitution has a very strong preference for a search warrant. There are a number of recognized exceptions to the warrant requirement: "exigent circumstances, consent, searches incident to arrest, plain view, inventory searches, open field, and hot pursuit." The court found that none of these exceptions were present in the Rivera case. The court could find no legitimate reason under the facts for the failure of the DEA agent to obtain a search warrant.

The court ruled that the evidence was rightfully suppressed by the trial court under Article II, Section 10 stating: "If the State conducts a search without a warrant and without sufficient grounds for an exception to the warrant requirement, we will suppress the evidence to effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure." The Court recognized throughout that the results would have been much different under federal law and the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

The 6th Amendment's confrontation clause is crucial in criminal trials because it allows defendants to have a fair trial which the framers spelled out in the Constitution of the United States. The 6th Amendment of the Constitution protects an individual's right to confront their accuser at trial in a criminal case.

The confrontation clause bars the admission of hearsay evidence unless the out of court declarant testifies at trial. In other words, the statements of a witness or alleged victim cannot be admitted into court without the witness' or alleged victim's in-court testimony.

This is particularly important in domestic violence cases. When an alleged victim accuses a person of domestic violence, the alleged victim's and any other witness' statements can only be used against the defendant if they show up to court and testify. There are few exceptions to the rules prohibiting hearsay testimony. These rules would rarely apply in the typical domestic violence case.

At trial, the defendant has a right to cross examine the alleged victim and other State witnesses to determine the truthfulness of their statements. When an alleged victim does not show up to trial, the State usually does not have the necessary evidence to present their case.

By only presenting evidence of a crime without actually having a victim appear in court, the prosecution is attempting evidence based prosecution. Evidence based prosecution which is often attempted by prosecutors in domestic violence cases faces many challenges due to hearsay objections and confrontation issues under the 6th Amendment.

For example, prosecutors will frequently obtain the alleged victim's 911 call. As part of evidence based prosecution, the State may attempt to use the 911 tapes to prove that the defendant committed the alleged act of domestic violence such as battery or assault on a household member. In doing so, the State may argue that this is public record and try to admit this evidence.

The State is attempting to recreate the drama of the alleged incident to a jury through the 911 call. The State is also attempting to illicit statements from the 911 call which may implicate the defendant in wrong-doing. However, once the 911 operator begins to engage in any type of questioning, the statements are then testimonial hearsay and the confrontation clause bars this evidence from use at trial. Perhaps just as problematic is the identification of the caller. This issue would be raised as an objection for failure to authenticate the caller's identification.

If the State's only case is evidence based prosecution without eyewitness testimony, the State has an uphill battle when presenting its case. The prosecution will have a hard time overcoming the evidentiary objections to hearsay and authentication.

Collins & Collins, P.C.
Albuquerque Attorneys

The Eighth Amendment to the United States Constitution guarantees individuals the right to fair and reasonable bail. Most importantly, it protects individuals from excessive bail.

The purpose of bail bonds are twofold. First, it allows people to be free from incarceration while the criminal process is proceeding. Second, it acts as a guarantee that a defendant will show up to court or they forfeit their money.

Bond amounts are set by the judge who bases the decision on the severity of the crime, a person's criminal history, the individual's flight risk potential, among other considerations. A judge may place a no bond hold on a person if the defendant is found to be a flight risk. In the absence of flight risk, the judge should set a reasonable bail based upon the entirety of the circumstances.

The Court will typically set a cash or surety bail. This means that the defendant may post the entire amount of the bail in cash on his or her own. Most defendants are not in a position to post the entire cash bond. Bail bondsmen serve a very valuable service in allowing the defendant to post bail with only a small portion of the total bail amount. Typically, the bonds company's fees will be 10% to 15% of the total bail.

The bond fees are nonrefundable. Bail bondsmen are licensed and bonded with the state to post bond for individuals to get them out of jail very quickly. The bail bondsman is then responsible for ensuring that the bonded defendant shows up to court. If they don't, the bond company forfeits its bond. The seemingly high fees are to compensate the bond company for that risk.

Some individuals can post the cash bail. Typically, the bail will come from friends or family. A person who pays for the bond is then responsible for the defendant showing up to court. If the defendant does not show, like a bond company, the friends or family will lose their money.

When a defendant does not show for a hearing, a couple of things happen. First, a bench warrant is issued. Second, the bond is forfeited and the court seizes the money. All is not lost for the bond company, friend or family member. If they or law enforcement can secure the defendant's appearance, they can get their bond once the case is concluded. This accounts for the very aggressive "collection efforts" of bail bonding companies when a defendant flees.

Whenever the defendant is finally brought to court, either voluntarily, by execution of the bench warrant, or through the services of the bond company, a no bond hold will then be placed on the defendant. At that point, neither the defendant nor the bond is going anywhere until the case has been concluded.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent study from from the Office of Applied Studies of the United States Department of Health and Human Services shows that drinking and driving in New Mexico has declined by 3.5% in recent years. The National Survey on Drug Use and Health found that 10.4% of those New Mexico drivers surveyed admitted to driving while intoxicated (DWI) during the period of 2006 to 2009.

The number of admitted New Mexico drunk drivers fell from 13.9% for the last survey period of 2002 to 2005. This is a significant drop. An Albuquerque Police Department spokesperson attributed the decrease to continued public education on the issues of New Mexico DWI. The constant messaging from New Mexico Law Enforcement and the Department of Transportation clearly have had an effect. The "You Drink, You Drive, You Lose" campaign certainly must have gotten the attention of many.

Due to the limitations on television time and perhaps viewer attention, the television campaign does not fully set forth the many ways in which drunk drivers lose. The consequences of DWI are severe. Indeed, there are at least 10 really good reasons why you should not drink and drive:

1. Arrest and a at least one night in jail.
2. Automatic loss of New Mexico driving privileges for a minimum of 6 months.
3. Mandatory use of ignition interlock device for a minimum of 6 months even if not convicted for the DWI.
4. Automobile seizure in many localities such as Albuquerque.
5. Mandatory one year criminal probation which includes at a minimum of counseling, community service, alcohol and drug abuse screening, DWI school, Victim Impact Panel and again, an ignition interlock device.
6. Mandatory jail time for repeat DWI and/or Aggravated DWI.
7. Fines, court costs, and very expensive attorney fees that increase with each successive DWI.
8. Minimum of 6 months in jail and up to 18 months in prison time for a 4th DWI charged as felony DWI. It gets much worse from there.
9. Felony child abuse charges if you have your children or other minors in the car. A minor is an individual under the age of 18. This might include the 17 year old girl or boyfriend of your 18 year old child. No kidding!
10. Last but not least, you get your not too flattering portrait published in the Albuquerque Journal.

There are many other reasons as well depending on the individual including possible consequences for employment, security clearances, child custody and time-sharing and immigration status.

So when they say "You Drink, You Drive, You Lose," it seems they really mean it.

Collins & Collins, P.C.
Albuquerque Attorneys

Many mistakenly believe it is in their best interests to refuse the breath alcohol test (breathalyzer) on a New Mexico DWI stop. The fact is that refusal has some pretty serious consequences with little possible trial benefits.

Refusal to take the breathalyzer results in some rather harsh consequences. First, a refusal results in an automatic one year drivers license revocation for a first time DWI under the New Mexico Implied Consent Act. Second, a refusal results in a charge for aggravated DWI which carries mandatory jail time for conviction. The mandatory jail time varies with the number of prior DWI convictions. For a first time DWI offender, an aggravated DWI carries 48 hours mandatory jail. It gets increasingly more severe for subsequent convictions.

So why the misconception about the refusal's benefits at trial? A .08 breath alcohol score results in a presumption of driving while intoxicated which is hard to overcome. A .16 or above is aggravated. Some believe that if there is no breath score, then it is harder to prove driving while intoxicated. This would make much more sense if the standard in New Mexico was not "impaired to the slightest degree." In other words, the true standard for the prosecutor to meet is whether or not alcohol impaired the driver's ability even to the slightest degree. This provision was in fact inserted in the statutes to address those drivers that refuse the breathalyzer. Unfortunately, its use has been significantly broadened and is used now routinely on drivers below .08.

So now the driver who has refused has suffered much more serious consequences. In addition, the standard is impaired to the slightest degree which is a very low standard if any standard at all. The jury is presented with testimony that the driver was in fact drinking which is typically not too hard to prove. The jury is also presented with a defendant driver who refused the breath alcohol test. Jurors who often assume guilt from the outset of trial expecting the defendant to prove his or her innocence now have a fairly easy logical conclusion on which to hang their prejudice. They might and do ask, if he wasn't drunk then why did he refuse the test?

Don't forget that the State still has the field sobriety tests on which to base their arguments. Police officers now often video the field sobriety tests, and this video is crucial evidence in the case. Even without the video, the officers will document each and every misstep on the field sobriety tests. Make no mistake, these tests are a challenge under the best of circumstances. The circumstances are hardly ideal in most DWI stops.

In conclusion, refusing the breathalyzer carries substantial risks with questionable value. Despite the myths, there is no fool proof strategy to beat a DWI charge except to avoid drinking and driving in the first place.

Collins & Collins, P.C.
Albuquerque Attorneys