Albuquerque Criminal Lawyer Blog

False imprisonment is a fourth degree felony. As a felony, it has very serious felony consequences for the defendant. A true case of false imprisonment is a very serious matter deserving of serious treatment by the prosecutor. However, the charge of false imprisonment is often thrown in on the most whimsical evidence.

The New Mexico criminal statutes define false imprisonment as "intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so." Though the statute is intended to address very serious and specific behavior, the broadness of the language allows it to be applied in a fairly arbitrary manner.

The most common incidence of overcharging a defendant for false imprisonment arises in domestic settings. The charge is often coupled with domestic violence charges such as assault or battery on a household member. The creativity with which it is applied to the facts often comes as a surprise to both the defendant and the alleged victim.

For instance, and not uncommonly, the alleged victim will tell the police that the defendant was blocking a doorway so she could not get out of a room. The alleged victim may give this statement with little consideration, not knowing, and not intending to suggest the crime of false imprisonment. There are countless variations on this theme where the alleged victim suggests in some small way that her right of ingress or egress was inhibited.

Due to the broad language in the statute, prosecutors have a great deal of latitude in bringing the charge of false imprisonment. Unfortunately, the charges are brought far too often on fairly innocuous behavior and well beyond the intended grievance of the alleged victim. The defendant rightfully will be very alarmed by the felony domestic violence charges. Frequently, the alleged victim is equally outraged by the hyped up charges.

Because of the serious potential consequences of a felony conviction, it is important to address these types of charges early. On occasion, depending on the circumstances, it is possible to avoid indictment on false imprisonment charges if the charges are addressed early enough. Once the indictment is issued, there are still some though fewer options to avoid a felony conviction.

Anyone facing false imprisonment and felony domestic violence charges should contact a attorney experienced in criminal and domestic violence charges as soon as possible. Delay in addressing the problem may seriously impede possible defenses.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals has drawn strict parameters around appeals of grand jury indictments. In so doing, it appears that the reach of Jones v. Murdoch has been sharply curtailed.

In State v. Yaw, the defendants through their attorneys issued a "Murdoch letter" to the prosecutor requested certain exculpatory information be presented to the grand jury under Jones v. Murdoch. The prosecutor did not comply with the request of the defendant.

Under Jones v. Murdoch, a hearing was held by the district court judge to determine whether the evidence should be presented. The district court judge determined that the evidence need not be presented to the grand jury.

The grand jury hearing was held. The proposed exculpatory evidence was not presented. The defendants were indicted. Following the indictment, the defendants appealed.

State v. Yaw sets forth some interesting and important guidelines regarding the operation and effect of Jones v. Murdoch. The Court of Appeals drew a distinction between appeals of grand jury process and reviews of grand jury evidence.

The Court asserted that violations of grand jury process are always appealable citing such improprieties as improper persons in the grand jury room or failure to instruct on the elements of the offense. To the contrary, the Court ruled that evidentiary findings by the grand jury would not be reviewed.

This seems to be a rather odd ruling in light of Jones v. Murdoch since by definition, failure to present exculpatory evidence suggests a review of the evidence. To resolve this apparent contradiction, the Court distinguished between pre-indictment appeal and post indictment appeal then basically rules their are no rights to appeal on either.

Interestingly, the Court stated that Jones v. Murdoch provided for no appeal of the district court's ruling except under extreme circumstances on the filing of an extraordinary writ. These cases appear from the Court's ruling to be limited to cases of prosecutorial misconduct. The Court stated that the defendant must show bad faith on the part of the prosecutor in its failure to present the exculpatory evidence. Unfortunately, the Court failed to define precisely what it meant by bad faith or prosecutorial misconduct.

In light of the great deference provided to the district court in ruling on the admission of Murdoch letter evidence, the hurdle seems almost insurmountable. For all practical purposes, except in the most extreme cases, the ruling of the district court is final under State v. Yaw. Hopefully, the case will be taken up by the New Mexico Supreme Court. As it stands under Yaw, defendants are left with pretty no remedy for violations of their grand jury rights under Jones v. Murdoch.

There are some widely held misconceptions regarding a defendant's Miranda rights. Defendants often complain that police questioned them without the presence of an attorney. What they do not understand is that a police officer may question them without an attorney so long as they are not in custody.

"In custody" is in fact fairly narrowly construed. A suspect is considered to be in custody if there was no freedom to leave. If the suspect was not free to leave and the police continue to question him or her, then this would be considered a custodial interrogation.

There is a careful distinction made by the courts between a custodial interrogation and investigative questioning. Police officers are free to ask an individual questions, even when that person is a suspect, so long as the questioning is voluntary. Once the questioning passes into the domain of involuntary questioning, Miranda rights kick in. At that point, the suspect must be read his or her rights which include the right to an attorney.

Whether or not the questioning is involuntary thereby constituting a custodial interrogation is measured by whether a reasonable person would believe he is free to terminate the questioning. In some cases, this matter is quite easily resolved. In others, the "reasonable man" would have to quite bold to simply leave the scene.

For instance, in the 2009 New Mexico Court of Appeals case of State v. Smile, the defendant pulled up voluntarily in his vehicle, voluntarily left his vehicle, and then voluntarily walked 50 feet toward the officers yelling out that he heard the officers were looking for him. He then commenced to confess a number of acts, including suggestions of future violence, sufficient for conviction for felony domestic violence under the aggravated stalking statutes. All of this was done voluntarily by the defendant almost in a bragging tone as if to say "look at all the hell I have put her through and the hell to come if she does not come around." Needless to say Mr. Smile was convicted of aggravated stalking and his Miranda appeal was denied.

Contrast this to the 1998 New Mexico Supreme Court case of State v. Munoz. In that case, the defendant, as a suspect in a murder case, was taken by FBI investigators from his home in an officer's vehicle. The defendant was driven a mile or so from his home and questioned for an hour and forty minutes by the FBI officers. He ultimately confessed to the crime. The Court in Munoz found that despite the nature of the questioning, it remained strictly voluntary. The defendant was free to terminate the questioning and exit the vehicle or in the alternative not get in the vehicle to begin with. As such, the questioning was voluntary and not a custodial interrogation. There was therefore no obligation to advise the defendant of his Miranda rights and his confession was fully admissible.

In either case, the defendants in both the Smile and Munoz cases would have done well to shut up and ask for an attorney. In fact, any suspect or defendant would be well to shut up and ask for an attorney. It is a risky gamble to assume that confessions made to police will somehow be excluded due to Miranda violations. In fact, such evidentiary exclusions are rare. So once again, defendants should "shut up and ask for an attorney." There is certainly no harm there. It is a constitutionally protected right!

Collins & Collins, P.C.
Albuquerque Attorneys

The Albuquerque Police and the Albuquerque District Attorney are getting more and more creative in their charges of DWI. This is nothing new.

In the past, they have charged and convicted individuals for DWI for sleeping off a drunk in their car. They regularly prosecute individuals at breath alcohol levels below, sometimes well below, the .08 legal limits. They have charged at least one driver with DWI for driving while on prescription medication designed to enhance attention and concentration. So it should come as no surprise that they are prosecuting a person of DWI for allegedly allowing another to drive drunk.

In the case of State v. Janet O'Dell, Ms. Odell is charged for DWI for allowing her friend to drive drunk. According to news reports, Ms. O'Dell was not even in the car with her friend at the time of his arrest. She was in another car. But she allegedly had given her friend her keys knowing that he was intoxicated. Allegedly she told the officer that she allowed her friend to drive because she was drunker than he was.

The new and creative approach is based upon the 2009 case of State v. Marquez where a passenger was charged and convicted for vehicular homicide. The facts of that case were unique and extreme where both the passenger and driver were on a very dangerous binge of drinking and driving that ended in the death of 2 and severe injuries to 5 more in a van that they struck.

In O'Dell's case, she simply handed over the keys. She was according to the report so drunk that she could not figure out how to get out of the second car in which she was found by police. It appears from the news reports that she was neither complicit in getting her friend drunk, nor did she encourage him to drive.

Several questions arise with the O'Dell case. Will this case set precedent allowing all passengers to be charged in a DWI case? How are the passengers to know if the driver was drunk? This is particularly problematic in light of New Mexico's DWI standard of "impaired to the slightest degree." With this standard, a driver may have a breath alcohol level of well below .08 but be impaired under New Mexico law. This is difficult enough but what if the driver is on Ritalin or Adderall which is now charged as DWI as in the Ron Bell case? How will a passenger judge impair,ment in these situations?

Simply put, how is one to know that the driver is impaired by New Mexico's vague, loose and ill-defined standards. In fact, how are they to know if the person is over .08? Should we now all be held to account for failure to measure blood alcohol before entering a vehicle?

What about spouses, girlfriends/boyfriends, business associates, employees? How about an employee who gets in the car with his or her boss after the boss has had a few? What if the boss is known to drink regularly but the employee did not see him drink today? The fact is if the Albuquerque District Attorney is allowed to proceed on this new and incredibly broad theory, then each and every one could be charged with DWI. There is in fact no limit to the hypothetical situations that might lead to a passenger charge of DWI.

DWI is a serious problem. DWI drivers should be punished. But should their friend, family and associates all be taken down with them?

Collins & Collins, P.C.
Albuquerque Attorneys

A Nolle Prosequi or simply Nolle is considered a good outcome in a criminal case. However, this must be qualified since the Nolle is not necessarily the end of the case.

A Nolle is usually entered without prejudice. This means that the district attorney or prosecutor can re-file the charges at a later date. The Nolle will not generally toll the speedy trial rule which at the metropolitan and magistrate court levels is construed to be six months. As such, the prosecutor must re-file within the six month period.

Nolle's are typically entered when the prosecutor has been unable to make the state's witnesses available for pre-trial interview by the defense. Likewise, the prosecutor may be unable to get the state's witnesses to trial. This situation is not uncommon. It may occur in DWI cases when the officers are not available for interview and or trial. The incidence of dismissal in DWI cases has gone down significantly since the Albuquerque Police Department discontinued the DWI team concept. In the past, there would typically be two officers involved, one that made the traffic stop and another DWI unit officer who conducted the DWI investigation. The team concept required both officers presence for pre-trial interviews and for trial. If either was unavailable, the case would be dismissed.

On other occasions, critical evidence may be missing or otherwise unavailable such as police reports, witness statements, lab or test results and so on. This last situation is fairly rare but does occur on occasion. A missing police report is hard for the prosecutor to overcome. Missing witness statements may provide grounds for a dismissal or at least suppression of certain evidence. Missing lab or test results in some cases may be insurmountable for the prosecution. However, in DWI cases, missing breath or blood alcohol scores are a mere nuisance to the prosecution due to the impaired to the slightest degree standard. The breath score is simply unnecessary for a conviction if there is any admission of alcohol.

Though the Nolle is never a bad thing, it likewise is not a permanent thing until the six month speedy trial run has run. Often, upon entering a Nolle, the prosecutor will be able to collect missing evidence and locate missing witnesses. If done in a timely manner, the prosecutor can then re-file. There are those instances where the case is re-filed at the last minute just before the speedy trial rule runs. There are some judges that will not allow this practice due to the severely prejudicial effect it has on defendants. There are others that will let it slide. Unfortunately, short of appeal, the outcome may rest entirely on pure luck of the draw.

Collins & Collins, P.C.
Albuquerque Attorneys