Albuquerque Criminal Lawyer Blog

DWI roadblocks or sobriety checkpoints have become commonplace in New Mexico, particularly in Albuquerque. Those caught in the roadblock often have questions regarding the legality of the roadblock.

The 4th Amendment protects citizens from unlawful searches and seizures without probable cause of a crime. Clearly, everybody traveling through a roadblock is not under suspicion of having committed a crime. These roadblocks are clearly trolling for DWI drivers.

From a 4th Amendment perspective, these roadblocks just do not sit well with those concerned with the right to privacy and the right against unlawful search and seizure. As objectionable as the DWI roadblocks might be, the constitutionality of roadblocks under the 4th Amendment search and seizure provisions has long been established.

The legal precedent governing this area of law is complicated and expansive. There are a number of United States Supreme Court cases that have addressed the issue, Michigan v. Sitz, Indianapolis v. Edmond, and Illinois v. Lidster. These cases, in order to skirt the issue of trolling for criminal activities simply reframed the argument. The common thread coming from the cases is that roadblocks intended to fish for criminal activity are unconstitutional. However, the court ruled that it was not unconstitutional if the roadblock was not simply a means of detecting criminal activity but a means to promote public safety.

In short, roadblocks are legal despite the fact that they are clearly intended to detect criminal activity. Of course, there is a public safety argument but the same could be argued for any random search of a citizen. After all, if by chance a criminal is caught during random searches, whether on the road, in the mall, or door to door, then the community is slightly safer.

The New Mexico courts have ruled consistently that roadblocks are not unconstitutional. The seminal New Mexico case of Las Cruces v. Betancourt (NMCA 1987), has long established the legality of DWI roadblocks in New Mexico. Betancourt and its progeny have established acceptable purposes and and procedures necessary for a legal roadblock. Suffice it it to say that it is not a high bar for law enforcement. However, there are minimal procedural requirements that must be met. In the absence of these procedural protections, the roadblock will be rendered unconstitutional.

Challenging a roadblock is no trivial matter. It takes a lot of work and investigation to determine whether the police followed all of the procedural safeguards. The fact is that for the most part they do. However, there are those rare occasions where they did not and it is worth the effort to find out. Invalidation of the roadblock will typically result in a dismissal of the DWI charges unless there were some other grounds for the traffic stop.

Again, it is relatively rare that a roadblock is found unconstitutional. Roadblocks are growing in frequency around New Mexico as is the seriousness with which DWI is treated. Don't drink and drive and you will not have to worry about either. If you do get caught and arrested for DWI in a roadblock, consult with a DWI attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent case of State v. Almeida illustrates the gravity of an illegal search and seizure in New Mexico. The case did not involve any deliberate wrongdoing by the officer. Rather, the case involved a stop of a vehicle based upon the officer's mistaken understanding of the traffic code.

The defendant, Rafael Almeida, had a couple of run-ins with the law on the day in question. First, he was stopped for running a stop sign. He provided false identification, was cited, and was allowed to continue on his way. Mr. Almeida later was stopped by another officer for what the officer believed to be an illegal execution of a left hand turn when he failed to complete his turn in the left most lane out of the intersection.

The officer questioned a very nervous and trembling Mr. Almeida. The officer noticed that the steering column was damaged with the ignition switch hanging from it. This indicated to the officer that the car might be stolen. Mr. Almeida was unable to produce a driver's license. The officer then asked Mr. Almeida to step out of the car at which time the officer noticed a gun on the floor of the vehicle.

Mr. Almeida was arrested and charged for a number of misdemeanors and felonies including felon in possession of a firearm and perhaps most notably under the circumstances the violation of the New Mexico Motor Vehicle Code for the presumed illegal turn.

Mr. Almeida filed a motion to suppress which was denied by the trial court. Consequently, he entered a conditional plea reserving his right to appeal on the issue of the legality of the initial stop. The New Mexico Court of Appeals reversed the trial court's ruling on the suppression motion.

The Court of Appeals, upon review of the traffic statute in question, found that there is no requirement that a motorist turn into the left-most lane on a left hand turn. The court found that the relevant "section simply does not specify a particular lane that the driver must end up in once the turn is completed." As a result, Mr. Almeida had violated no traffic laws and the officer had no right to stop him.

The Court of Appeals had previously held in State v. Anaya that a mistaken belief that a traffic offense has occurred cannot supply the reasonable suspicion necessary for a traffic stop. As such, the stop was illegal and all evidenced discovered after the illegal stop was suppressed. In other words, Mr. Almeida, at least on this occasion, is a very lucky felon.

In this case, there will be those that are taken back by the ruling. However, one might consider the consequences of allowing officer's to stop vehicles or initiate other types of searches and seizures under a mistaken belief in the law. Not only would this encourage ignorance of the law by officers, it would open up significant potential avenues for abuse by officers inclined to engage in illegal search and seizure. Fortunately, the New Mexico Court of Appeals will not go down that road.

Collins & Collins, P.C.
Albuquerque Attorneys

An aggravated DWI carries very serious consequences in New Mexico including mandatory jail time. Aggravated DWI carries all the same elements as a simple DWI along with a number of possible additional elements.

A simple DWI involves driving under the influence of alcohol, driving under the influence of drugs, and/or driving with a breath or blood alcohol level above .08. Keep in mind that the .08 mark in New Mexico is not necessary for a conviction for DWI. The .08 mark simply leads to a presumption of driving while intoxicated. Many drivers to their surprise and dismay are convicted at lower levels. In addition, the presumptive level goes down to .04 for drivers of commercial vehicles.

Aggravated DWI carries additional elements in addition to those listed above. These elements are deemed to be more egregious than the standard elements of a simple DWI warranting more severe penalties. There are a number of possible circumstances that will lead to a charge of aggravated DWI.

Perhaps the most common aggravating factor in DWI is a breath or blood alcohol score of .16 or above. In essence, a score of twice the legal limit will result in a charge of aggravated DWI. A close second to the high breath/blood alcohol score as an aggravating factor is a refusal to take the breath alcohol test. The Implied Consent Act results in an automatic aggravation of the DWI charges for a refusal. A refusal will be found even in situation where a driver delays or otherwise waivers in the consent. In short, a driver must take the breath alcohol test and must take it in short order or risk a charge of aggravated DWI as evidenced under State v. Suazo.

A less common, though often far more serious aggravating factor, is DWI involving bodily harm. These cases involve DWI auto accidents resulting in injuries. The injuries may occur to the driver, the passengers, other drivers or pedestrians. These cases are taken very seriously as one might expect from a glimpse at the tragic DWI accidents that occur each year in New Mexico.

A conviction for aggravated DWI carries a number of possible more serious consequences beyond the mandatory 48 hour jail time. Much of DWI sentencing is discretionary with the judge. The sentences must simply fall between the mandatory minimums and the maximums allowed by law. There is a great deal of latitude with the court between the minimum and the maximum sentencing.

Judges and prosecutors alike do not look kindly on aggravated DWI. This is particularly so with very high breath alcohol scores or accidents involving injuries. Not only will the original sentencing be more severe, judges are often very hard on those that violate probation under an aggravated DWI. This may be so even with seemingly minor technical probation violations. This can make probation very unpleasant as if it were not unpleasant enough.

In short, DWI is taken seriously in New Mexico. Aggravated DWI, as the term suggests, is taken even more seriously. It is simply not worth it. After all, even if you beat the charges, you still spent a night or two in jail, spent a minimum of 6 months going through the court process, and parted with a great deal of hard earned income paying me or some other DWI attorney to get through a very stressful and difficult process.

Collins & Collins, P.C.
Albuquerque Attorneys

When you are pulled over on suspicion of DWI in New Mexico, the police will not launch straight into performing a field sobriety test; they will question you first. What you may not realize is that this is not mere chit chat. These questions are a test in themselves,

Though not as formal as the field sobriety tests you will take, these tests, referred to a pre-exit tests, are used for a number of purposes. They provide grounds for the subsequent standardized field sobriety tests. The driver's performance on these "pre-exit" tests will also often end up in court. Thus, they are important both for the officer's decision to pursue a DWI investigation, and later to a judge or jury in determining guilt.

As you are answering the officer's questions, he or she will be looking for signs of intoxication such as slurred speech or odor of alcohol. The officer will also look for mental impairment such as confusion about the date and time or why you were pulled over. They will have your perform certain routine tasks such as finding and producing your license and registration. These tests are meant to divide your attention while also testing physical dexterity.

"Divided attention" refers to the brain performing multiple tasks at the same time. Alcohol use can affect your ability to perform divided-attention tasks even at low levels. This inability to multitask makes driving a car very difficult for an intoxicated person because it requires so many things to be done at once--maintaining an appropriate speed, maintaining the lane, steering the car, checking mirrors, etc.

Initial questioning can test for divided attention in three primary ways: asking two questions at once, giving you more than one command at a time, interrupting or distracting you as you are answering a question, or asking unusual questions. The officer may have you recite alphabet backwards, count down from one designated number to another. The officer may fire questions at you pretty rapidly all in an attempt to fluster you.

Some field sobriety tests include divided attention tasks as an element. For example, the one-leg stand test requires you to balance on one foot while counting aloud by thousands and the walk-and-turn test requires touching the heel to the toe while walking in a straight line and counting steps. Officers will sometimes combine more than one test to create a divided attention test, such as requiring a subject to touch his finger to his nose while standing with feet together.

Both the pre-exit tests and the standardized field sobriety tests are difficult under the best of circumstances. A few drinks will make it pretty near impossible. Worse yet, many officers will err on the side of arrest due to the low standard of impaired to the slightest degree. Breathe test or not, the pre-exit testing along with the field sobriety tests may be sufficient to meet this standard.

These tests may provide the probable cause necessary for arrest even at low levels of alcohol. And it simply does not get any better moving through the process. With the low burden placed on the State for a DWI conviction, any alcohol at all with poor pre-exit and field sobriety testing may lead to a conviction.

And the moral is, Don't Drink and Drive!

Collins & Collins, P.C.
Albuquerque Attorneys

Because computers store such a large volume and variety of documents, a police search and seizure of your computer during is often a far greater intrusion on your privacy than a normal search would be. Computers can hold anything from banking records to e-mails to text documents to photos. Technology is advancing at an astounding rate, and hard drives can now store enough data to fill a warehouse.

A warrant to search your house for specific evidence doesn't give police carte blanche to search every nook and cranny for evidence of unrelated crimes. For example, a warrant to search for illegal firearms doesn't allow police to read your financial documents for evidence of tax evasion. Nor does a warrant to search your computer for specific evidence give police the right to open and examine every file on your hard drive.

This issue is still in debate, so you should consult with an Albuquerque criminal attorney with up-to-date knowledge on the latest case law, but here are some of the main arguments your attorney may wish to present that a computer search was improper.

Police can do searches for specific keywords, and computer forensic experts have advanced tools that can filter files based on different criteria. They do not need to open each file and inspect its contents to look for relevant evidence as they might do when looking through a file cabinet.

Imagine that a search warrant specifies that police can search your computer for e-mails relating to suspected fraud. E-mails stored on your computer have a identifiable file extensions. Police should not review image files or other unrelated file extensions since this would exceed the scope of the warrant. On occasion, law enforcement will stumble on to evidence of other crimes as they unlawfully peruse the contents of a suspect's computer. In cases where the scope of the warrant has been exceeded, a criminal defendant may want to challenge the scope of the search. A search may be unlawful under the 4th Amendment if it exceeds to legal scope of the warrant meriting the suppression of any illegally gathered evidence.

Because these issues are complex both legally and technologically, it may be necessary to obtain expert computer forensics assistance in figuring out exactly what transpired during the search of your computer. In order to determine the scope and legality of a search, it may be necessary to retrace the computer search. This is not a simple process requiring expert assistance which is well beyond the aptitude of most criminal defense attorneys (including this one).

Collins & Collins, P.C.
Albuquerque Attorneys