Albuquerque Criminal Lawyer Blog

There have been many studies that attempt to correlate traffic accidents with alcohol use. For example, a 1978 study by the Department of Transportation found that five percent of drivers in accidents resulting in property damage were intoxicated. The same study found that 9-13 percent of drivers in injury accidents were intoxicated.

According to National Highway Traffic Safety Administration (NHTSA) data from 1998, the number of drivers or non-occupants (e.g., pedestrians) with a blood alcohol level of at least 0.10 rises to an astonishing 30 percent in auto accidents involving fatalities.

Though it cannot necessarily be proven that alcohol was the cause of these accidents, there was a clear relationship. The data and the correlations between alcohol and auto accidents led the Department of Transportation to what most of us would consider the obvious conclusion that "alcohol beyond a certain amount ... is associated with increased crash risk."

Both the 1978 and 1998 studies use a .10 breath alcohol standard for their measurements. In New Mexico the so-called standard is .08. However, one would be advised to understand the true standard in New Mexico of "impaired to the slightest degree" which often leads to arrest and conviction at levels well below .08.

In addition to studying the correlation between alcohol and auto accidents, there have been significant efforts to determine which observable driving behaviors most closely correlate with alcohol impairment. For example, a 1997 study by the National Highway Traffic Safety Administration used data from 379 Florida traffic stops to try to determine which driving behaviors were most closely associated with an increased blood alcohol levels.

The study's authors were particularly interested in the correlation between certain driving behaviors and the magic 0.08 percent blood alcohol levels now most commonly used as the standard. The study found that observable deterioration driving ability occurs at high levels of alcohol. The study found further that driving was impaired at lower levels as well, hence the interest in the .08 correlation.

NHTSA concluded that there was a problem with many drivers on the road at .08 or above. And though high BAC drivers are perhaps "easier to detect, ... there is a serious problem if many people drive at and near the statutory limit without being detected." In order to address the problems with detection, NHTSA attempted to identify those behaviors that most closely correlate with alcohol impairment.

NHTSA found that failure to maintain a single lane was most closely associated with increased blood alcohol content and equipment violations had the lowest correlation. Drifting or weaving, running stop signs and improper speed came in close behind lane violations as predictors of impairment.

If you are unfortunate enough to be stopped for DWI, the police report will often read like a laundry list of these factors in order to justify the stop. As you might imagine, several of these are quite subjective and quite difficult to disprove. On the other hand, most police officers are surprisingly honest and forthright about the presence and magnitude of these factors when questioned during pretrial interviews and at trial if it comes to that. Thus, it is always advisable to seek the counsel of an experienced DWI attorney, whether that attorney is private or court-appointed. It is never a good idea to go it alone!

Collins & Collins, P.C.
Albuquerque Attorneys

The U.S. Supreme Court just ordered the State of California to reduce crowding in prisons. Interestingly, on heals of this opinion, the New York Times reported that violent crime rates are at the lowest levels in 40 years.

California is not alone in prison overcrowding. Many states have similar problems. This is not surprising in light of the fact that the United States has 2.3 million people behind bars, by far the largest prison population in the world. The question that comes to mind is why the prison population continues to grow as crime rates are in decline?

The answer is simple. Prisons are quite profitable. But only if they are full. The problem becomes how to keep the prisons full as crime declines. There are many creative solutions to this problem. The most obvious solution is to create more criminal offenses. If folks are not committing the crimes that are on the books, the simple solution is to write a new book.

Thus, each year countless new criminal statutes are proposed, some of which are plainly geared to expanding the scope of criminal conduct to otherwise common practices. A few examples from New Mexico's past legislative session might help. There was legislation introduced to make it a felony to text while driving thus creating the opportunity to imprison the entire teen population. There was legislation introduced to make it a crime to pass within 5 feet of a bicyclist in a car geared perhaps to jailing grandmas. There was legislation passed to make a crime for a minor to "appear" intoxicated again targeting teens Sadly, there are many teenagers that simply cannot avoid appearing intoxicated any more than they can resist testing as most an parent of a teen will attest.

These are just the bills criminalizing the New Mexico public introduced last session. It does not touch on the DWI laws that though originally well intended are now moving in a very dangerous direction. Take for example the impaired to the slightest degree standard which basically allows the conviction of a driver for DWI if the arresting officer says he believes the person was intoxicated. Worse yet is the recently reported proclivity, and let's hope it is not a trend, to charge passengers with DWI. This should be a real boon for corrections. Finally, it has now become common to arrest folks for DWI for prescription medications of all varieties including Ritalin which is designed to increase focus and attention.

The bottom line if the people will not commit the criminal acts on the books, then the only option for keeping prisons full is to criminalize the behavior that they do engage in. Rest assured, California will not release prisoners. Instead, it will take the option left open by the Supreme Court of simply building more prisons as will other states. And those prisons will be full to overflowing.

We can all take comfort in knowing that private corrections companies will take a slight hit in profits as they are compelled to build new and expensive facilities. And the prison population will grow and grow until sometime in the distant future another such ruling is issued, as they have been time and time again, ordering California or some other state to reduce crowding. Presto! More prisons, more prisoners, and more proposed legislation making it a crime to "appear" to be some variety of criminal.

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established that a woman's purse is protected against unlawful search and seizure. Time and time again, the courts have ruled that "a purse is the type of container with which a person possesses the highest expectation of privacy."

The limits of these protections were tested in the recent New Mexico Court of Appeals case of State v. Tiffany Bond. In the Bonds case, the defendant was convicted on one count of possession of a controlled substance, fourth degree felony. The defendant had entered a conditional plea reserving her right to challenge the legality of the search and seizure of the evidence against her.

In a nutshell, Ms. Bond was a passenger in a stolen vehicle. The stolen car was tracked by GPS and pulled over. During the ensuring investigation, the police officer turned his sights on Ms. Bond's purse. Ms. Bonds acknowledged that the purse was hers but disavowed ownership of a smaller black bag in the purse which was visible to the officer. Due to Ms. Bond's denial of ownership of the black bag, the officer removed it from her purse, searched it and found the meth with which she was charged.

The defendant on appeal argued that she had not consented to the search of her purse and therefore the search and seizure of the black bag was illegal under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The state did not deny that there had been no consent to search the purse or the black bag. However, the state argued that because Ms. Bonds had disavowed ownership, no consent to the search was necessary to search the black bag. To hedge its bets, the State argued in the alternative that the search was legal under the "plain view doctrine."

The Court of Appeals disagreed on both grounds stating the search was illegal under the 4th Amendment. As such, the Court found it unnecessary to enlist the broader protections of New Mexico's Constitution.

The Court began with the basic premise that warrantless searches are presumed unreasonable with the burden on the State to prove the search reasonable. The Court shot down the argument of the State that denial of ownership necessarily waives the need for consent. The Court recognized case law to the contrary. However, in this case, the Court recognized that the denial of ownership was likely simply an attempt by the defendant to escape responsibility for the drugs in case they were discovered. The Court also recognized that disavowal of ownership of the black bag did not waive protections over the purse itself from which the bag was seized.

The Court finally addressed the State's "plain view" arguments in short order. The plain view doctrine requires that the evidence be not only plainly visible to the officer but also that the incriminating nature of the evidence be plainly apparent. Clearly, a black bag by itself does not and should not elicit suspicion sufficient for search and seizure and the Court ruled as much.

In short, a suspect admitting ownership of a purse but denying ownership to the contents does not give an officer the right to search the contents. It is not hard to imagine how a contrary ruling would lead to significant abuses by law enforcement.

Collins & Collins, P.C.
Albuquerque Attorneys

There are two types of tests that police officers use to determine whether a driver's blood alcohol level is above the legal limit: chemical tests and field sobriety tests. The most common is the breath alcohol test. Alcohol levels can also be tested by blood and/or urine tests. Chemical testing is for the most part pretty accurate.

Field sobriety tests, on the other hand, are far less reliable but are used to justify the chemical testing, generally the breath alcohol test. Field sobriety tests will tests the driver's attention, balance and coordination. They are usually conducted on the side of the road after a driver has been pulled over on suspicion of drunk driving under less than ideal circumstances.

Field sobriety tests do not measure a subject's blood alcohol level directly. Rather, they are intended measure the degree of a driver's impairment and to predict alcohol levels. There are a number of field sobriety tests including standing on one leg, walking heel-to-tow in a straight line, touching your finger to your nose, counting down backwards and reciting the alphabet. Field sobriety tests are less reliable indicators of impairment than chemical tests. In addition, there are often irregularities in how the tests are administered rendering them even less reliable.

In order to increase the reliability, the National Highway Traffic Safety Administration (NHTSA) created standardized field sobriety testing. The standardized tests were meant to increase reliability through standardized routines. In addition, the NHTSA conducted numerous studies to determine the most relieable battery of tests.

NHTSA determined that the most reliable tests in combination were the one-leg stand, the walk-and-turn test and the horizontal gaze nystagmus test. NHTSA found that these tests conducted in a standardized manner yielded the most reliable predictors of alcohol levels at or above .08.

Unfortunately, these standardized tests have many faults leading to reduced reliability. Perhaps the biggest problem is that different people naturally perform differently on field sobriety tests regardless of whether they are drunk or sober, and the arresting officer will not have any idea about the driver's baseline performance.

Related to the first, there is also a problems with the fact that there are many different reasons other than alcohol that lead to poor performance on the tests. Illness, allergies, tiredness, obesity, injury and emotional state to name only a few can all cause a person to perform poorly on the standardized tests.

Even under the best of circumstances, these tests have reliability issues. According to NHTSA itself, the one-leg stand is only 45% reliable on its own in predicting alcohol levels at .08 or above. The walk and turn is only 61% reliable. Notably, the horizontal gaze nystagmus has the highest reliability at 65% but it is not admissible in New Mexico courts.

Taken together, the three tests still yield only 69% reliability in predicting breath alcohol levels above .08. This is far cry from beyond a reasonable doubt. Worse yet, no matter how admirably one performs on the tests, a motivated or enthusiastic officer can see it differently finding justification for a DWI arrest.

And once the arrest is made and any alcohol whatsoever is detected by chemical testing, the defendant has an uphill battle against with New Mexico's impaired to the slightest degree standard. With the impaired to the slightest degree standard, the standardized field sobriety tests often become the case when the breath alcohol level comes in below .08 which is not uncommon.

Thus the field sobriety tests which were never meant as the final measure of impairment but simply a predictor of alcohol levels have greatly reduced the burden of proof in DWI cases from beyond a reasonable doubt to somewhere in the vicinity of 45% to 69% accuracy. And this seems good enough for the courts and the legislature. Its probably not good for you, however, if you have a little wine with dinner.

Collins & Collins, P.C.
Albuquerque Attorneys

A deferred sentence in a first time DWI in New Mexico is pretty common in most courts around the state. A deferred sentence eventually results in a dismissal of the charges. However, the dismissal does not have the effect that most DWI offenders would wish it to have.

A deferred sentence in any case, including a first time DWI, requires a plea of guilty or no-contest. The deferred sentence does result in a finding of guilt. As such, even though the charges are eventually dismissed, the deferred sentence has important consequences for the DWI offender.

First and foremost, much to the chagrin of many repeat DWI offenders, the first time DWI counts as a prior despite the fact that there was a deferred sentence and the charges were eventually dismissed. As a result, even though the first time DWI is dismissed on the deferred sentence, a subsequent DWI comes with all the disastrous consequences associated with repeat DWI offenses. The most notable consequences of repeat DWI offenses are mandatory jail time and much stricter levels of probation.

Unfortunately, the deferred sentence is the best possible plea in most first time DWI cases. Gone are the days when the prosecutors offered pleas to lessor offenses. Neither will prosecutors any longer agree to conditional discharges on first time DWI. The conditional discharge to the lay observer would appear to be identical to a deferred sentence. However, there is one very big difference. Despite the typical requirement of a plea of guilty or no-contest for court approval of the conditional discharge, there is no adjudication of guilt.

Due to the seriousness and often tragic consequences associated with DWI in New Mexico, neither judges nor prosecutors will allow any disposition of even a first time DWI that will not later count as a prior for a subsequent DWI. In fact, there is mandatory DWI sentencing dictated by statute that disallows such an outcome.

If you are charged with a first time DWI, you should understand all the possible consequences including mandatory sentencing. Because of the seriousness of a DWI conviction, it is wise to speak with an experienced New Mexico DWI attorney. If you cannot afford a private attorney, there are many very experienced and capable public defenders, one of whom will be appointed to assist you.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court case of State v. Guthrie addresses the rights of defendants in probation violation hearings to due process and confrontation of the State's witnesses. The court determined that the rights of probationers in probation violation hearings were measured on a "sliding scale with extremes at either end and much balancing and weighing of competing interests in between."

The facts of the Guthrie case are pretty straightforward. The defendant failed to complete a residential treatment program required under the terms of his probation. The probation officer that filed the probation violation report had been relocated and was unable to attend the hearing. In her place, her supervisor testified to the contents for her report and the contents of the probation file. The supervisor had no direct knowledge of the probation violation and had never met or spoken with the defendant or the residential treatment facility.

The defendant did not dispute that he had not completed treatment and it was taken as an undisputed fact. The defendant's objections at the probation hearing were strictly related to the violation of his right to confront and cross examine his probation officer. The district court found the evidence of violation sufficient for the revocation of defendant's probation. The defendant filed an appeal arguing a violation of due process and his right to confrontation of witnesses.

The Court cited the U.S. Supreme Court Morrissey v. Brewer for the proposition that probation revocation hearings are rather informal depriving a defendant not of an absolute liberty but only a conditional liberty under the terms of probation. Because revocation of probation addresses on conditional liberties, the Court reasoned that the full spectrum of criminal trial rights do not apply.

Under Morrissey, live testimony of probation officers is not always required. Instead, the court may rely on a variety of hearsay evidence such as affidavits, depositions, and documentary evidence. The Court stated further that it had no intention of preventing the State "from developing other creative solutions" suggesting ever greater latitude for courts and prosecutors in probation violation settings.

In short, the Court in Guthrie found that the live testimony of the defendant's probation officer was not necessary. The Court also emphasized that whether or not defendant completed treatment was a simple factual determination not susceptible to subjective interpretation. The failure of the defendant to offer any rebuttal evidence to suggest otherwise weighed heavily on the Court's ruling. The Court suggested that due process and the right to confrontation might require live testimony where the violation of probation was in dispute and/or relied on more subjective criteria.

The specific findings of the case are not so troubling as the broad parameters the Court set forth for probation violations. As it stands, the due process and confrontation rights of probationers are tenuous at best. After all, a sliding scale of justice with creative prosecution is not where a defendant would like to be.

Collins & Collins, P.C.
Albuquerque Attorneys

Rule 5-503 of New Mexico District Court Rules of Criminal Procedure requires that any State witnesses be made available for pretrial interview by the defense. There are comparable rules for both Metropolitan Court and Magistrate Court. The New Mexico Court of Appeals case of State v. Curtis Harper lays down some guidelines on the application of the Rule. In so doing, it also added a significant level of confusion.

The Harper case involved charges of criminal sexual penetration of a minor. Among the State's witnesses was an expert psychologist. The State failed to make the expert available for interview by the defense despite several direct orders from the district court judge to do so. The State's reason for refusing the interview was that the defense had failed to pay the doctor's expert witness fees. The district court judge determined that Rule 5-503 overrode any such considerations and ultimately suppressed the testimony of the State's expert. The State appealed the suppression of the expert.

The Court of Appeals ruled that the State did have duty to provide the witness for interview. The Court ruled that the requirements of Rule 5-503 were unconditional. The Court ruled that once the State undertakes the duty to provide interviews, those interviews must be provided. The Court suggested that the State obtains some advantage by taking on responsibility for the interviews since the State is then present and can hear the questions asked by the defense and prepare accordingly. The State cannot both insist on participation in the pretrial interview process and refuse to make its witnesses available.

The Court specifically addressed the State's position that an expert could be withheld from the defense until expert witness fees were paid. The Court stated that this position was unacceptable and that the prosecutor could not stand as a "preemptive guarantor of the fee." The Court then stated that any prosecutor engaging in this conduct would see its case suffer the consequences.

So far so good for the defendant's 6th Amendment rights to confrontation of witnesses. It appeared the Court was moving toward a ruling that would disallow hoisting the expense of the State's experts on to the defense and that such behavior would result in the suppression of the expert's testimony. Unfortunately, the Court declined to do either.

Instead, the Court suggested that the defense could and would in fact be compelled to pay expert witness fees in order to interview the State's expert witnesses in a criminal case. In the end, the Court also stated that the failure of the State to provide the interviews in direct violation of the district court's orders to do so was not so prejudicial to the defendant as to merit suppression.

In the end, the whole judicial exercise was rendered rather meaningless. The Court in essence stated that the rules requiring the State to make witnesses available to the defense were unconditional; that an expert could not be withheld for failure to pay fees; and that the State's case would suffer in the event that it failed to abide by the rule.

After saying all this, the Court then ruled such behavior would not result in suppression. The ruling is quite puzzling as it is hard to see how the State's case has suffered despite clear violation of both the rules of procedure and the Court's own dictates. The ruling in fact simply added confusion to an already confusing area of criminal procedure.

Collins & Collins, P.C.
Albuquerque Attorneys