Albuquerque Criminal Lawyer Blog

The New Mexico Court of Appeals again addressed the issue of evidence of driving in a DWI case. The recent case of State v. Cotton is a bit hard to reconcile with the Court's other recent opinion in State v. Owelicio.

The Cotton case, like Owelicio, involved an immobile vehicle. Like Owelicio, the investigating officer found a vehicle beside the road. In Cotton, unlike Owelicio, the officer found an individual behind the wheel of the car. Along with the driver, the officer in Cotton found a female with a bloody lip, possibly a victim of domestic violence which was the impetus for the investigation to begin with. In addition, the officer found 4 small children in the car. Cotton failed the field sobriety tests. He refused the breath alcohol test which resulted in a charge of aggravated DWI. He was also charged with negligent child abuse.

Like Owelicio, the defendant made certain confessions. He confessed to drinking where Owelicio had confessed to driving despite evidence to the contrary. Cotton was convicted and appealed the verdict arguing the evidence was insufficient to support the DWI conviction. Specifically, he argued that the State had not proven that he was driving.

The State argued that it could be inferred that Cotton had been driving from the fact that the car was next to the road and Cotton neither lived in the car on the side of the road nor was it "placed there by aliens." The Court basically stated that the location of the vehicle next to the road did not prove that Cotton had been driving. He could have drank after pulling the car over. A finding of guilt required speculation on the part of the jury to find that he had been driving while intoxicated which the Court refused to allow.

The 2010 New Mexico Supreme Court case State v. Sims set forth requirements for a conviction where there was no witness to the driving but the defendant is in the vehicle. Basically, Sims requires that it be proven that defendant intended to drive the vehicle as evidenced by physical control over the vehicle. Sims makes clear that it applies only to cases premised on intent to drive, not cases such as Cotton where it is alleged that the defendant had driven in the immediate past.

Instead, the Court found the relevant case to be State v. Mailman, another 2010 New Mexico Supreme Court case. Remarkably, in the Mailman case, the officer found the defendant in the driver's seat. The car was not running and the keys were not in the ignition. However, the defendant admitted that he had been drinking and that he had thrown empty beer cans out of the vehicle while he was driving. Essentially, Mailman admitted to drinking and driving. He refused the breath alcohol test stating he was too drunk to pass. He was charged and convicted for aggravated DWI.

In Mailman, and in Cotton, the courts found that there was insufficient evidence of driving to support the DWI conviction. The Court in Mailman stated "[a]ctual physical control is not necessary to prove DWI unless there are no witnesses to the vehicle's motion and insufficient circumstantial evidence to infer that the accused actually drove while intoxicated." The Court in Mailman stated that the defendant might have been convicted based upon actual physical control and intent to drive but this had not been proven at trial. Nor had the State proven that he had driven. As result, the conviction was remanded for a new trial for the sole determination of whether he had driven in the immediate past.

The Court in Cotton, applying Mailman, found that the State had failed to prove the defendant had been driving. In addition, the State had not even attempted to prove control and intent to drive under Sims. Consequently, Cotton's conviction was reversed.

This decision is interesting in its own right. However, it is perhaps more interesting in comparison to the same Court of Appeals prior holding in State v. Owelicio. In that case, the car was on the side of the road, there was an intoxicated man changing two flat tires, and there was the defendant in the passenger seat. The passenger confessed to the DWI under protests from both the intoxicated man, who claimed a third party had been driving, and the officer who believed and told her she was lying.

The Court in Owelicio recognized that a confession alone without the corpus delicti (the act of driving while intoxicated) was insufficient. Yet the Court went to great lengths to find that the corpus delicti was established through corroborating evidence (the vehicle next to the road with 2 flat tires and 2 intoxicated individuals). The Court did not entertain the possibility that it could have been the same group of aliens that dropped Mr. Cotton's car next to the road had done likewise with the car in which witnesses had seen Owelicio traveling as a passenger? What about 2 flat tires changes the level of presumption or speculation necessary to show that Owelicio had been driving or that any DWI had occurred at all? The sequel is sure to come.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals revisited the issue of whether a confession by a defendant standing alone is sufficient for a conviction. State v. Owelicio is the first opportunity the Court has had to address the rules regarding confessions in a DWI case. The Court took some great logical leaps in order to uphold the DWI conviction.

The facts of the case were somewhat muddled but can be boiled down pretty succinctly. Basically, an Albuquerque police officer came upon a car on the side of the road with 2 flat tires and a man changing the tires. The officer pulled over and upon smelling alcohol on the man's breath asked if he had been drinking and driving. The man denied drinking and driving and said his friend had been driving and had left the scene to go get assistance. There was also a female present who was in the passenger seat. The dash-cam video showed her getting into the passenger seat as the officer approached. The female claimed that she had been driving. The man and the cop both told her she was lying, but she insisted. Finally, she was arrested, charged and convicted for DWI.

The rule is generally that a confession alone is not enough in the absence of other evidence of the crime. The Court addressed cases both from New Mexico and beyond regarding the circumstances under which a confession must be corroborated to stand alone.

The Court went through a rather lengthy analysis of the corpus delicti rule. Basically, the corpus delicti rule will allow the confession to stand in the absence of corroborating evidence because the existence of the crime itself is enough corroboration without necessarily identifying the perpetrator of the crime. The examples used by the court, and a common application of the rule, included homicide cases where the circumstances of the death and the condition of the corpse made it apparent that there had been a homicide. In these cases, the existence of the crime was clear and certain. The confession of the defendant was therefore supported by the clear existence of a crime.

To the contrary, the court noted a U.S. Supreme Court case where it found no such corpus delecti in a tax evasion case. In the 1954 US Supreme Court case of Smith v. United States, the court found the corpus delecti missing because the crime of tax evasion has no " "tangible injury which can be isolated as a corpus delicti."The same holds true of DWI in most cases in the absence of an accident.

The Court in Owelicio went to great lengths to uphold the DWI conviction first stating no corroboration was needed due to corpus delecti and then suggesting that there was other corroborating evidence standing in place of the corpus delicti. In conclusion, the Court stated that it was clear that the crime of DWI had been committed by someone and thus provided the foundation upon which to admit the defendant's confession in the absence of other corroborating evidence.

The Court in fact repeatedly suggested that there was corroborating evidence. The Court alluded to a corroborating witness who was the defendant's sister. However, it is later stated by the Court that the sister saw the defendant leave the bar where they had been drinking in the passenger seat. She stated further that she had been following the car in which her sister was traveling until they became separated. Thus, she provided no corroborating evidence at all that her sister had been the driver.

To the contrary, the sister, the man changing the blown tires, and even the cop provided evidence that she had not been driving. The Court ignored this and instead hung its argument on the corpus delicti rule saying it was obvious that someone had committed DWI. But the facts do not support this conclusion. DWI is far different matter than murder where there is a dead body involved. DWI is very different and there is nothing that would suggest a DWI in this case or most others in the absence of an intoxicated driver behind the wheel of a car.

What is it exactly about this case that made it obvious that someone had committed DWI? Two flat tires? A man who smelled of alcohol changing the tires? A denial by the man that he had been driving? A suggestion that someone else had been driving and left the scene? A clearly intoxicated female in the passenger seat taking responsibility for the DWI with no other evidence that she had ever been in the driver's seat? The cop who suggested she was lying and that he did not believe her? The man changing the tire who said she was lying? The sister saying she last saw her traveling in the car in the passenger seat?

None of these provide the corpus delicti required under prior caselaw. Instead, the Court redefined corpus delecti in order to uphold the conviction. After all, somebody needs to be punished for the DWI even if it is the wrong person. Let's hope this case sees its way to the New Mexico Supreme Court.

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established in New Mexico that a law enforcement officer cannot extend the scope of a traffic stop beyond the initial basis for the stop in the absence of fairly restrictive circumstances. However, the issue of a passenger's right to challenge the scope of the ensuing investigation had not been specifically addressed until the recent New Mexico Court of Appeals case of State v. Portillo.

Portillo involved a routine traffic stop. The defendant, Portillo, was a passenger in the car. The officer went through the standard procedure of requesting the driver's license, insurance and registration. As he was conducting the investigation, the officer noticed that the defendant passenger "remained looking straight ahead with his hands in his lap, avoiding eye contact with Officer Thatcher and only glancing furtively at him once when Officer Thatcher moved." The officer found this behavior suspicious thereby expanding the scope of the traffic stop asking the driver and later the passenger whether there were drugs or weapons in the car and for consent to search the vehicle.

Both the driver and the defendant denied the presence of drugs or weapons but both consented to the search. Naturally, drugs were found and the defendant was charged with possession of narcotics. The defendant entered a conditional plea reserving his right to appeal the constitutionality of the search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

There were a number of interesting points addressed in the case. First, the Court noted that the alleged suspicious behavior was insufficient basis for expanding the investigation beyond the speeding investigation. The court noted a number of cases in New Mexico that clearly state that nervous behavior alone does not give rise to the reasonable suspicion necessary to expand the scope of a traffic stop.

Second, the Court addressed the defendant's standing to challenge the search of the vehicle. It is well established that a passenger has no legal standing to challenge the search of a vehicle. In short, the passenger has no expectation of privacy in this situation. However, the passenger can challenge both the stop and the subsequent expansion of the investigation beyond the scope of the stop since it effectively results in a seizure of the passenger by law enforcement. The passenger has an equal right to be free of illegal search and seizure as does the driver.

The Court noted that Article II, Section 10 provide greater protection than the 4th Amendment under federal law. Under federal case-law including United States Supreme Court precedent, law enforcement is given significantly greater latitude in extending the length and scope of a traffic stop. The officer may extend the scope of the investigation if reasonable suspicion of other crimes surfaces during the routine traffic investigation. The Court noted that under Fourth Amendment analysis, the scope of investigation and questioning may be expanded so along as the length of the stop is no longer than "the time required to conduct a reasonable investigation into the initial justification for the stop". In other words, under the 4th Amendment, the officer is given significant leeway in the scope of his "traffic" investigation.

As in many situations, the New Mexico Constitution provides greater protection that does the 4th Amendment. Under Article II, Section 10, there is no such latitude defined by the amount of time or inconvenience to the defendant which is inherently vague and susceptible to abuse. Unrelated questions beyond the scope of the traffic stop may be asked only when there is independent reasonable suspicion for the questioning, issues of officer safety suggest further questioning, or where the interaction has developed into a consensual encounter. Again, nervous behavior is not enough. Nor was there any reasonable basis for believing there were weapons or threats to officer safety. Finally, the defendant was already seized and therefore the encounter could not by definition be consensual since there was nothing suggesting that he was free to leave.

Collins & Collins, P.C.
Albuquerque Attorneys