Albuquerque Criminal Lawyer Blog

A charge of domestic violence in New Mexico is always very serious. There are numerous and severe consequences for a domestic violence conviction. A charge of for felony domestic violence steps up the seriousness and the possible consequences.

Most domestic violence is charged as a misdemeanor. As a misdemeanor, the maximum possible jail time is one year. Once a case is charged as felony domestic violence, the penalties are greatly enhanced beginning at 18 months possible prison time on a 4th degree felony, 3 years on a 3rd degree felony, 9 years on a 2nd and 18 years on a 1st degree felony.

As a felony, the prosecutors are typically much more aggressive in prosecution as well. For instance, in minor misdemeanor domestic violence where there are no injuries or weapons, the prosecutor will not pursue the alleged victim's cooperation quite as aggressively as in a felony. In a felony domestic violence where there are injuries, weapons or other felonies involved, the prosecutor or district attorney will often be significantly more persistent in tracking down the alleged victim and getting the alleged victim to court for trial.

There are a number of ways to charge felony domestic violence. Perhaps the most common is aggravated assault against a household member which is classified as a fourth degree felony. This charge requires, "(1) unlawfully assaulting or striking at a household member with a deadly weapon; or (2) willfully and intentionally assaulting a household member with intent to commit any felony."

The weapons portion seems straightforward enough. However, this language can be broadly construed by the prosecutor. The mere presence of some deadly weapons such as a knives or guns even in the absence of a threat may trigger this charge. In addition, the term deadly weapon itself may be stretched to include otherwise innocuous items depending on the circumstances and the alleged intent of the defendant. And then of course the construction of "intent" is always a slippery matter.

The second part of the definition of the offense can be even more perplexing and frustrating to defendants. The "intent to commit any felony" covers a lot of ground. It is not uncommon to see the alleged facts stretched to logical extreme in order to meet the requirements of this element. Though there are countless ways this charge might arise, the most frequent are kidnapping and false imprisonment. These are topics unto themselves but suffice it to say that the commonly held definition of these terms is frequently only remotely related to the facts of a particular case.

In short, there are countless ways to arrive at felony domestic violence charges. The basis for a felony domestic violence charge is most often clear from the alleged facts. On other occasions, the charge can be quite a stretch from the facts. Unfortunately, however one gets there, the charges are very serious and the possible consequences quite severe.

Collins & Collins, P.C.
Albuquerque Attorneys

Under New Mexico law, a second DWI carries mandatory minimum jail time of 96 hours. It gets worse with increasingly severe consequences for subsequent offenses. Worse yet, the courts are growing increasingly reluctant to order the minimum sentences. In fact, the courts have a great deal of latitude between the minimum and maximum jail sentences.

The first step to minimizing jail time is to admit that you have a drinking problem. This is remarkably hard for some DWI offenders. Instead, they will argue that they don't have a problem, they only drink socially, occasionally, with dinner and so on. Some can be surprisingly resistant to an admission of a drinking problem despite their legal predicament.

These folks should understand that the court sees things very differently. The fact that an offender has more than one DWI is sufficient in itself to suggest a drinking problem. This is often evident to all but the offender. And unfortunately, the offender will often have a lot of time in jail to mull over his or her stubbornness.

There are others that will admit to the problem only once they get to court at sentencing. This is too late with the judge often viewing it as an empty gesture to minimize jail time. In fact, this late admission with no evidence of addressing the problem sometimes seems to antagonize the judge.

So, again, step one is to admit a problem. Second, a multiple DWI offender should be doing everything possible to address both the drinking problem and the problem of drinking and driving. At a minimum, this means regular and frequent AA meetings. Better yet, it means serious alcohol counseling and even in-patient rehab if necessary to address the problem. It means doing these things from day one of the arrest, not a week before sentencing.

A defendant in this situation should understand that it does not matter what he or she thinks about the problem. The courts view it very seriously and it is the court that has the power to put a DWI driver in jail for a long time. It is also the court that can minimize jail time for those offenders that it believes to be taking the matter seriously and insuring that it never happens again.

Those that fail to take the matter seriously on their own will soon recognize the gravity of the situation as they are led off to jail. At some point, one must admit that this is a problem!

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals of State v. Gurule once again expands the scope of DWI and DUI. The Court made clear that DWI is a strict liability crime meaning no intent is required. The Court also expanded the strict liability of DWI to "impaired to the slightest degree" cases.

The defendant, Bertha Gurule, was suffering from a cold. She stayed home from work going to her to mother's home to be with her mom and sister. Her mother gave her a homebrewed cold remedy which included a shot of bourbon. Ms. Gurule also took some cold medicine. Her sister received a phone call alerting them that a granddaughter was in the hospital. Not realizing that the cold remedy had bourbon or that the cold medicine contained alcohol as many common cold formulas do, Ms. Gurule drove to the hospital. Upon leaving the hospital hours after consumption of the home remedy and the cold medicine, she was stopped and charged with DWI.

There was no breath alcohol score even mentioned in the case suggesting a breath alcohol score below the .08 limits. Ms. Gurule was prosecuted on the "impaired to the slightest degree" standard.

Remarkably, the court determined that DWI, even under the "impaired to the slightest degree" standard, is a strict liability offense. The court made clear that it does not matter whether Ms. Gurule knew that the cold medicine or home remedy contained alcohol. It does not matter that she had no intention of consuming alcohol. And of course under the impaired to the slightest degree standard, it does not matter what her breath or blood alcohol level was at the time of driving.

In this case, there was some liquor involved. However, might it be possible to get a DWI strictly through the use of cold medicine. As the law stands now, sure it is. Recall that drivers are now being convicted of DWI under the same vague and meaningless "impaired to the slightest degree" standard for prescription Ritalin or Adderall, drugs formulated to increase focus and concentration. So was it even necessary to mention the home remedy with bourbon? Why not prosecute drivers for taking cold medicine? After all, many common cold formulas contains alcohol and they can cause drowsiness, as indicated on the label.

House Bill 392 which would have gotten rid of the "impaired to the slightest degree" standard failed to pass for the third year running. As the law now stands, any alcohol, no matter the source and no matter the level, may lead to a DWI conviction. Worse yet is the very long list of prescription drugs that arguably would impair a driver to the "slightest degree." To this list, one would be prudent to add cold medicine.

Hopefully, House Bill 392 or its equivalent will pass next year. To encourage correction of this legal anomaly, you can contact your legislator. In the alternative, don't get sick or get a home based job, and don't have kids, one might get sick as happened in State v. Gurule.

Collins & Collins, P.C.
Albuquerque Attorneys

House Bill 392 has been re-introduced this year. It has been introduced twice in the past with no success. After reading, please contact your legislators to encourage passage of this bill.

The bill does a couple of things. First, it gets rid of the "impaired to the slightest degree" standard for DWI convictions. I have written plenty in the past with the many problems associated with this amazingly vague standard. Suffice it to say, you can toss all you ever believed about the .08 breath alcohol standard. Instead, a driver is impaired if the officer says so whether or not below the limits and it is then the burden of the driver to prove in court at great legal expense that he or she was not impaired.

This brings us to the second part of the bill, and the recent Ron Bell case. The bill states that it is not a crime to take medication in the lawfully prescribed dosage where there is no FDA prohibition or warning against driving while on the prescription medication. One would have assumed that this was always the case. It is not.

Ron Bell was arrested for prescription Adderall. Adderall, like Ritalin, is a commonly prescribed medication for ADD/ADHD both for children and adults. Of note, there are no driving prohibitions while on Ritalin or Adderall. In fact, research shows that the medication improves driving. This makes perfect sense since the medication is prescribed for attention deficit disorder. What does not make sense is to institutionalize distracted driving by discouraging the use of these medications.

But this is exactly what the Ron Bell case suggests. The same impaired to the slightest degree standard applies to prescription drug use. There is no other established standard. In fact, there are no established levels for safe driving for most prescription drugs, including Adderall and Ritalin. Again, it comes down to the officer's judgment. In short, any admission to prescription medication may get you a tour through the criminal justice system.

There is a much glee surrounding Ron Bell's conviction. The press is replete with gloating headlines regarding the high profile lawyer that sues drunk drivers getting convicted for DWI. Once the gloating stops, one might consider his or her own medicine cabinet. One might consider the teenage driver in the family that must take Adderall or Ritalin to function normally.

Now consider the other prescription drugs in your cabinet and what the State might say about those. If the State will argue that a drug like Adderall or Ritalin, scientifically formulated and proven to improve focus, impairs one's driving to the "slightest degree," what about your anti-anxiety or anti-depression medication? Or how about how that allergy medicine that makes you a little bit drowsy (it says so right on the label)?

Collins & Collins, P.C.
Albuquerque Attorneys

The first and among the most serious consequences a person arrested for DWI/DUI will face is the revocation of their driving privileges through Motor Vehicles Division (MVD). In fact, a DWI driver has only 10 days from the date of arrest to send in a Request for License Revocation Hearing to MVD. Failure to send in the request results in automatic revocation.

There is much confusion with DWI drivers about the jurisdictional issues between the MVD revocation and the criminal DWI proceeding. In fact, the two are completely separate. In other words, you can win at the MVD hearing and still lose at trial in the criminal proceeding. Likewise, you can lose at the MVD hearing and win at trial.

Both MVD and the criminal court have the authority to revoke the DWI offender's driving privileges. The length of the revocation depends on the number of DWI convictions and whether the charge was aggravated DWI.

In addition to the overlapping jurisdiction over driving privileges, the period of revocation may be different between MVD and the criminal court. For example, on a first time simple DWI (non-aggravated DWI), the revocation by MVD is 6 months. Upon conviction in the criminal proceeding, there is a mandatory one year interlock requirement.

With both the MVD revocation and the interlock requirement imposed as a result of the criminal conviction, driving without an interlock and an interlock license results in criminal charges for driving on a revoked license. A conviction for driving on a revoked license carries up to one year in jail.

The criminal court may impose he revocation from the time of the conviction. The MVD hearing often occurs much earlier than the criminal trial since it must be set by law within 90 days of the arrest. The court may, but does not have to, allow for credit for the MVD interlock period. Therefore, the actual revocation and interlock period may stretch beyond one year even on a simple first DWI.

Finally, the burdens of proof are different between the two hearings. The recent case of Glenn v. MVD has significantly lessened the burdens at the MVD hearing. Under the Glenn case, the state need not even prove the stop was legal. As a result of this case, the MVD hearing is even more formality than before since the State need only show the hearing was held within 90 days of arrest and the driver blew .08 or above or refused to blow.

The burdens are no better in the criminal proceeding. The State need only show (argue) that the driver's ability to drive was "impaired to the slightest degree" by alcohol. This is really no standard at all. On the upside, the State is supposed to show that the driver was legally stopped. This again is a fairly low burden since a reason can always almost always be found for pulling over a driver.

The bottom line is that a DWI seriously jeopardizes driving privileges. The driver and his or her attorney must run a gauntlet of hearings where the burdens are seriously stacked against them. In fact, it is pretty rare that a DWI arrest will not result in the revocation of driving privileges in some fashion unless the officers simply do not show up to fight.

And the moral to the story is "Don't Drink and Drive." It is not worth it.

Collins & Collins, P.C.
Albuquerque Attorneys

DNA testing has resulted in the exoneration of 266 innocent people in the United States. Among these were included 17 who were on death row.

Many more remain behind bars today, wrongfully convicted. Nobody knows the true scope of the problem. Nobody knows how many innocent men and women remain in prison. More disturbing, nobody knows how many more will be wrongfully convicted this week, this month or this year based upon flawed and unreliable forensic science or eyewitness misidentification. These are in fact more common than the more publicized DNA cases.

The Innocence Project provides pro-bono post-conviction legal assistance to individuals that are seeking to prove their innocence with DNA testing. Just as importantly, the Innocence Project works tirelessly for reforms needed to protect innocent Americans from wrongful prosecution, conviction and incarceration. Take a look at their stories. Some look remarkably familiar, a neighbor, a friend, a family member.

With your support, the Innocence Project is fighting to overturn wrongful convictions and enacting reforms to lessen the risks of wrongful convictions in the future.
To continue their work, they rely on donor funding. Make a Contribution now, even if it is only $10.00. Each contribution, no matter how small, is step toward a more fair and just criminal justice system.

I hope you will be as generous as possible. Your commitment to justice means everything to the innocent men and women who have been wrongfully convicted. it means everything to their families left behind. It means everything to the next innocent man or woman who will suffer a similar fate if we do not insist on better from our criminal justice system. And a better criminal justice system needs the Innocence Project.

Collins & Collins, P.C.
Albuquerque Attorneys