Albuquerque Criminal Lawyer Blog

Expungement of a criminal record is very difficult, and in New Mexico very rare. In order to obtain an expungement, the defendant/petitioner must show extraordinary circumstances justifying the expungement. As it happens, this is a near impossible standard in New Mexico as the law now stands.

The 2010 New Mexico Court Appeals case of State v. C.L. makes clear that adverse employment consequences do not rise to the level of "extraordinary circumstances." Rather, the court stated that adverse employment consequences are not an extraordinary consequence but a natural result of a criminal charge or conviction.

State v. C.L. involved an individual that was charged with first degree felony child abuse resulting in great bodily harm. She pled to 4th degree felony child abuse on a conditional discharge. The conditional discharge indicated that upon successful completion of the terms of 5 years of probation, there would be no adjudication of guilt. In fact, the petitioner was released early from probation due to her performance on probation.

The petitioner was denied several employment opportunities due to the charges despite the fact that there was no adjudication of guilt. She therefore sought to have her the charges expunged and all records related to the charges sealed.

The Court of Appeals recognized that many states allow district court judges authority to expunge criminal records. The Court, however, refused such authority for New Mexico's district court judges.

Petitioner's arguments of extraordinary circumstances based upon the fact that she was only an accessory, she entered an Alford plea, she was granted a conditional discharge, she was released early from probation and finally that she was suffering adverse employment consequences collectively did not amount to "extraordinary circumstances."

The Court did not expressly set forth the criteria necessary to establish "extraordinary circumstances." However, the Court in addressing the shortcomings of the petition did suggest some very strict parameters for an expungement. The Court referenced the 1997 New Mexico Court of Appeals case of Toth v. Albuquerque Police as follows:

" in Toth, Defendant does not challenge the accuracy of the information "in her record[,] . . . the general interest of law enforcement agencies in retaining" the criminal records, or "the lawfulness of the underlying arrest," and she has not demonstrated "that the dismissal of [the] charges against [her are] predicated on factual innocence."

In short, based upon this language, it appears that to show "extraordinary circumstances" necessary for an expungement, the defendant/petitioner would have to show inaccuracies in her criminal record, constitutional violations suggesting unlawful arrest, and/or a wrongful conviction. This is an extraordinarily high hurdle that very few defendants will be able to meet.

Collins & Collins, P.C.
Albuquerque Attorneys

Stalking is a common domestic violence charge in New Mexico. The definition of stalking under the New Mexico statutes is fairly broad allowing prosecutors great latitude in bringing stalking charges.

Under the statute, stalking is defined to include any of the following acts on more than one occasion:

1) following a person in a place other than the residence of the alleged stalker, 2) placing another under surveillance by being present outside the person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence e of the alleged stalker, or 3) harassing another person.

Each and every element of the definition can be read very broadly to include some fairly innocuous behavior. A first time stalking offense is a misdemeanor. Under the prior law, a 3rd offense was a 4th degree felony.

However, due to the growing concern with domestic violence, the law was amended in 1997 to make a second offense a 4th degree felony. In addition, aggravated stalking may be charged for knowingly violating a protective order or no contact order.

Aggravated stalking is also a 4th degree felony. Aggravated stalking consists of knowingly violating protective order, violating a no contact order under conditions of release, stalking while in possession of a deadly weapon, or stalking a person under 16 years of age.

A 4th degree felony carries very serious penalties with possible jail time of 18 months and fines up to $5000 for each count. Most prosecutors will charge the offense of aggravated stalking only in cases involving real and serious danger to a victim. Others may err on the side of caution and charge it whenever the statute allows. Then there are those prosecutors that will charge everything conceivably possible under the alleged facts in order to gain strategic advantage. And felony charges most definitely place enormous plea pressure on a defendant due to the great risks associated with conviction.

To avoid any risk of charges for aggravated stalking, a person under a protective order or no contact order should have absolutely no contact with the alleged victim of any kind. This means avoiding contact even when the alleged victim initiates the contact. Charges under these circumstances are far too common.

The statute reads that a mutual violation "may" constitute a defense. Thus, a mutual violation is not an absolute defense. Nor does a mutual violation prevent the charges from being filed.

In short, it is highly inadvisable to test the boundaries of the statute. In a case of alleged domestic violence or stalking, the defendant should either stay away from the victim, or get the protective order or no contact order lifted. Any other course of action is extremely risky carrying very serious felony consequences.

Collins & Collins, P.C.
Albuquerque Attorneys

The 6th Amendment's confrontation clause took a hit in the 10th Circuit Court of Appeals case of U.S. v. Pablo. The case originating in New Mexico involved the introduction of DNA evidence in a rape trial. DNA is commonly introduced in rape prosecutions. However, the method by which the prosecutor introduced the evidence to the jury in Pablo was highly suspect.

In short, a DNA expert who had not been involved in the investigation or preparation of the DNA or serology reports testified to the contents of those reports. The contents of the reports were clearly testimonial and therefore hearsay. The Court acknowledged as much.

However, the Court ruled that in this case and others like it, the hearsay was admissible. The Court, despite the Melendez-Diaz decision stated that the testifying expert was free to rely on the hearsay reports of others in his own testimony.

The Court distinguished Melendez-Diaz where an affidavit of a non-testifying forensic drug expert was admitted against the defendant. The Court stated that in Pablo, the testifying expert was simply relying on the contents of the hearsay reports in the formulation of his own opinions which is allowable under the Federal Rules of Evidence, Rule 703.

The Court stated that under Rule 703, the testifying expert was allowed to present the reports of the non-testifying experts who prepared the DNA and serology reports. Remarkably, the Court allowed for the full admission of those reports despite the fact that the Court fully recognized that the reports were hearsay.

To justify the admission of the otherwise inadmissible hearsay, the Court stated that the admission of the reports to the jury were necessary to allow the jury to properly evaluate the in-court testimony of the testifying expert.

In short, the Court in Pablo renders Melendez-Diaz meaningless. After all, following the Court's logic in Pablo, the disallowed affidavit in Melendez-Diaz would now be admissible in order to validate the in-court testimony of an expert testifying upon the validity of the findings stated in that affidavit.

In short, otherwise inadmissible hearsay is now allowed under Pablo, at least in the 10th Circuit, so long as another expert testifies to the legitimacy of that inadmissible hearsay. The rather odd logic of Pablo, if allowed to stand, would serve a severe blow to the 6th Amendment confrontation clause.

We can only hope that the shortcomings in Pablo will be set straight in the New Mexico case of State v. Bullcoming which has made its way to the United States Supreme Court.

Collins & Collins, P.C.
Albuquerque Attorneys