You have a right to an independent blood alcohol test when you have been arrested for DWI/DUI in New Mexico. This right may prove more theoretical than real if you are unable to locate a facility or provider to take the blood draw.

Any Lab Test Now claims to be available 24/7 at (505) 319-6059. The organization will send out a certified phlebotomist to conduct the test. The test results are fully admissible in a DWI/DUI defense. The results are also admissible for the MVD license revocation hearing. A blood alcohol test is far more reliable than the breath alcohol test utilized by law enforcement which has a acceptable 10% error rate.

The test is free so long as you submit to the State's breath alcohol test If you refuse the State's breath alcohol test, you will be charged for the test. In addition, you will be responsible for all costs associated with getting the testing technician to court at trial.

Take the State's test, then get an independent blood alcohol test to insure accurate results. Insist on the BATDRAW independent blood alcohol test. Be vocal and leave no doubt that you made the request. As seen in State v. Duarte, any doubt in your request for an independent blood alcohol test will likely be construed against you.

You have the right to an independent blood test. You should exercise it if there are any doubts in your mind regarding the results of the law enforcement result. You should most definitely use the service if your results are close to .08 or .16 due to the recognized 10% error rate in the breath test. Clearly, you do not want the test if you are under the limit as the rate of error in the breath alcohol tests swings both ways.

The exercise could prove purely academic anyway due to New Mexico law that allows drivers to be convicted at levels below the legal .08 level, under the "impaired to the slightest degree" standard. However, it is far better to be fighting the "impaired to the slightest degree" than the statutory presumptive impairment above .08. And, anything over .16 puts you at a severe disadvantage due to aggravated DWI/DUI charges for levels over .16. In addition, .08 or higher virtually guarantees a revocation of your license by MVD.

Put this number in your phone., (505) 319-6059. Give to your friends and family. Hopefully, you will not need it, but if you do, you do!

www.CollinsAttorneys.com

The 10th Circuit Court Appeals addressed the 6th Amendment Right to a speedy trial in U.S. v. Seltzer. Though the constitutional protections under New Mexico law are typically more expansive than federal law, the 10th Circuit in the Seltzer case appears more respectful of the 6th Amendment than the recent New Mexico Supreme Court decision of State v. Garza.

In State v. Garza, the court set forth a sliding scale related to a criminal defendant's right to a speedy trial in New Mexico. The court suggested speedy trial parameters as follows: 1) 12 months for simple cases, 2) 15 months for cases with intermediate complexity, and 2) 18 months for complex cases. The New Mexico Supreme Court even allowed for some leeway in the these standards by stating that these time limits were mere thresholds for further inquiry.

The 10th Circuit in U.S. v. Seltzer set forth a number of considerations in the determination of whether or not a defendant's right to a speedy trial have been violated. The Court stated that a delay of more than one year from the date of arrest or indictment, whichever is earlier, was "presumptively prejudicial" to the defense. The court noted that in particularly complex cases, longer delays, even a two year delay might not be unreasonable. The court noted further that in straightforward cases, even a minor delay might be considered prejudicial and unreasonable.

The Court found that the charges against the defendant Seltzer related to counterfeiting, drug possession, and firearm possession by a felon were not complex and a delay of more than one year was presumptively unreasonable. The Court stated that even lesser delays might prove prejudicial in cases involving eyewitness testimony.

Once the presumption of prejudice has been found, it is up to the State to "provide an inculpable explanation for delays in speedy trial claims." The Court cited the 1972 United States Supreme Court case of Barker v. Wingo as follows: "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Thus the burden quickly shifts to the State to show a legitimate reason for any delay impacting the defendant's speedy trial rights. This burden becomes harder to meet in cases involving simple charges.

Unlike the New Mexico Court in State v. Garza, there is a heavy burden on the State to justify any delay impacting the defendant's 6th Amendment right to a speedy trial. New Mexico typically zealously protects the constitutional rights of its citizens. The protections under New Mexico's Constitution are generally much broader than under federal law. In State v. Garza, the burden appears to be on the defendant to prove prejudice, rather than on the State where the burden belongs. Hopefully, the New Mexico Supreme Court will take the lead of the 10th and revisit the 6th Amendment rights that are so important to due process and a fair trial.

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New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

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In the last post, I looked at how New Mexico Senator Michael Sanchez' Senate Bill 151 (SB 151) would eliminate the practice of arresting drivers found sleeping in their vehicles while intoxicated. Fortunately, Senator Sanchez went further to address the routine practice of arresting drivers who are below the legal limit of .08 on what is often referred to as the impaired to the slightest degree standard.

The impaired to the slightest degree standard creates many issues regarding discretionary enforcement of the laws. The standard basically creates absolute discretion on the part of a DWI/DUI officer. The history of civil rights alone should be enough of an argument to prevent this kind of latitude in law enforcement. Even assuming that there are no possible racial, ethnic, sexual, religious, or other possible prejudices in law enforcement, there are other equally pernicious pressures on law enforcement for DWI/DUI convictions.

Most recently, it is has been suggested that the Albuquerque DWI/DUI Unit has quotas that must be met. There are also overtime incentives for these arrests since going to court entails overtime pay. There are broader funding pressures of offices of prosecutors across New Mexico, since funding for DWI/DUI enforcement, which make no mistake is big business, is often tied to prosecution statistics. This pressure is likely to grow in the current budget environment. Finally, the press must always weigh in with an attack every time an officer, prosecutor or judge exercises some rational discretion on DWI/DUI enforcement. The pressures for arrest and conviction are simply too great to have any latitude at all in the enforcement of New Mexico's DWI/DUI laws.

In fact, I can think of no other law that has such a vague standard. "Impaired to the slightest degree?" Really? What does this mean? It has no meaning other than that given to it by the officer at any particular time. So what if the cop needs to meet a quota, just doesn't like the driver, is trying to impress the boss, or is just having a bad day (I assume cops probably have more than their share of stressful days)? Perhaps it is more insidious. Perhaps the cop is looking to book more overtime for a new fishing boat? And most frightening of all for all of us, maybe the cop is prejudice against the driver for race, ethnicity, religion, political affiliation, age, sex or some other grounds that taints his judgment even slightly.

The fact is the law should be precisely written. Citizens should know what to expect. There should be a standard that they can meet. They must be able to avoid violation of the law through thoughtful and responsible conduct. There is no such standard currently in New Mexico's DWI/DUI law enforcement. In fact, most people still believe the standard is .08 blood alcohol level. Many plan their evenings around this belief. Some even buy portable blood alcohol test devices to insure they comply with the law. There are even bars and restaurants that have these devices for their patrons. And the fact is, it simply does not matter. It is left to the cop.

The law should not be drafted for the 99% of law enforcement officers that conscientiously perform their duties. It should be drafted to protect against that very small percentage of those that don't. There should be a standard, any standard will do, .08, .04, .01 or even any alcohol at all. The public has a right to know the law and in its current state, the law is unknowable. There is simply no possible way for citizen to know whether or not they will be arrested for DWI/DUI if they are below .08. Due to the severe consequences of a DWI/DUI conviction, this is unacceptable and more than a little frightening.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

The Albuquerque Journal reports that New Mexico Senator Michael Sanchez has introduced Senate Bill 151 (SB 151) which will address two serious problems in New Mexico DWI/DUI enforcement: 1) under the limits DWI/DUI arrests on the impaired to the slightest degree standard, and 2) the arrest of drivers found sleeping in their vehicles while intoxicated. The latter will be addressed here with a follow up on "impaired to the slightest degree."

Senator Sanchez 's SB 151 would address the practice of arresting drivers who are asleep in their car by inserting language defining driving to mean only those situations where the "person is behind the wheel of a motor vehicle and causing the motor vehicle to move or exercising control over the movement of the vehicle. Exercising control over a motor vehicle alone, without any movement of the vehicle and with no immediate intent to move the vehicle, does not constitute driving." The current DWI/DUI enforcement practices and the law allow drivers to be arrested for sleeping while intoxicated under the theory that they are in control of the vehicle.

Those in opposition to the change in the law argue that a person sleeping his or her car could wake up and decide to drive. Sure, they could. Someone drunk and sleeping in bed could wake up and decide to drive. In fact, that person is probably just or more likely to decide to drive drunk. After all, the person that had the good sense to avoid driving by sleeping in their vehicle at least possesses the conscience or fear of arrest necessary to cause them to avoid driving. Why should it be presumed that they would exercise the good judgment to avoid driving while intoxicated when severely intoxicated then exercise less restraint as the effects of the alcohol begin to wear off?

The fact is that the policy of arresting drivers who are sleeping in their cars to avoid driving under the influence actively encourages them to engage in the very behavior New Mexico's DWI/DUI laws are meant to deter. According to the National Highway Traffic Safety Administration's law enforcement DWI Training materials, for every driver that is arrested for DWI, there are 500 to 2000 drunken drivers that go undetected. If this is so, and one must weigh the risks of getting arrested for sleeping in a vehicle in a public parking lot which are probably pretty high versus getting arrested for DWI which according to NHTSA are extremely low. Due to the severe consequences of a DWI/DUI conviction, an odds oriented driver would drive rather than sleep since driving carries at best according to NHTSA a 1/500 chance of detection. I for one would rather the person sleep off their intoxication before getting behind the wheel drunk and possibley endangering me, my family or other innocent drivers.

The policy of arresting people for trying to do the right thing is wrong on purely a gut level. It makes no sense to punish someone for making a responsible decision. More than that, it endangers the public by more or less forcing people to drive home rather than sleep off their intoxication. New Mexico's DWI/DUI law and policy is irresponsible and dangerous. I am happy to hear that Senator Sanchez is pushing this bill.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

www.CollinsAttorneys.com

The Albuquerque Journal reported today that a bill toughening DWI/DUI penalties for first offenders died in the New Mexico Senate yesterday. The bill was considered a top priority for New Mexico Governor Bill Richardson.

The bill would have established mandatory jail time or community custody for first time DWI/DUI offenders. The bill would have required a minimum 3 day jail sentence or 30 day community custody for first time offenders. Community custody requires electronic monitoring (ankle bracelet) 24 hours a day for those in the program. Both jail time and community custody are very costly. These costs apparently derailed the bill.

Those in opposition to the bill pointed to the unfunded costs in the program. They also pointed to the strain the program would place on already overcrowded jails throughout New Mexico. Finally, at least one senator, Bernadette Sanchez of Albuquerque, addressed the problem of overreliance on penalties and too little emphasis on treatment.

There were 150 DWI/DUI fatalities in New Mexico in 2009. 70 percent of those were caused by first time offenders. Governor Richardson and others have argued that tougher penalties will act as a deterrent. Richardson first proposed the bill when a drunk driver crashed into a carload full of teens in the summer of 2009 killing 4 of the teenagers.

DWI/DUI is a very serious problem in New Mexico. 150 deaths is unacceptable. The real challenge is to address the problem in a manner that effectively reduces drinking and driving. The reality is that every DWI/DUI carries mandatory jail time. The DWI/DUI offender is arrested and jailed pending a first appearance. Often, the timing of the arrest over the weekend will carry 2 or more days in jail before the first hearing is set for release.

Mandatory jail time will likely have no greater deterrent value than the deterrents currently in place which include arrest, jail, courts costs, fines, counseling, probation, community service, loss of driving privileges and vehicle seizure among others. If this is not enough, the attorney fees can be financially crippling for some.

The penalties and costs of DWI/DUI are pretty staggering as the law currently stands. A new approach is needed beyond the customary call for stiffer jail time. What that approach would be remains to be seen.

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Often times when drivers are charged with DWI/DUI in New Mexico, they have prior DWI/DUI convictions from other states. Many times, the charge in New Mexico will be to a DWI/DUI First Offense despite the prior conviction.

Those charged often believe that they were not charged with a subsequent DWI/DUI because the out of state conviction does not count against them. In reality, what typically has happened is that there has been no search of interstate criminal records at the time of the original filing of the complaint.

This does not mean that the complaint cannot be amended once the out of state DWI/DUI conviction(s) are discovered by the District Attorney. Therefore, if there is an out of state conviction for DWI/DUI, it will likely be discovered well before the trial date. If not, it will be discovered at sentencing and factored into the DWI/DUI sentencing where there is a significant amount of latitude allowed the judge.

The use of out of state DWI/DUI is allowed both by statute, NMSA 66-8-102(Q) and by case law, State v. Lewis. NMSA 66-8-102(Q) clearly allows for the use of out of state convictions for consideration of a charge as first or subsequent DWI/DUI. In addition, the New Mexico Court of Appeals determined in State v. Lewis that the use of out of state convictions for enhancement purposes is allowed under New Mexico law. The court ins State v. Lewis ruled that so long as the out of state DWI/DUI statute is substantially equivalent to NMSA 66-8-102, then the conviction can be used as a prior.

It is very important that you discuss your DWI/DUI history honestly with your attorney from the very first meeting. Prior convictions will almost always show at some point during the process. Hiding them from your attorney could severely impact the legal representation as the approaches for dealing with first time DWI/DUI and subsequent DWI/DUI can be very different particularly when it comes to consideration of plea offers. Surprises at trial are never good for you or your attorney. Surprises at sentencing can be extremely detrimental to your freedom.

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A recent article on KOB.com of Albuquerque addresses an important question, why would Albuquerque police officers arrest drivers for DWI/DUI at a breath alcohol level (BAC) of .04 when the legal limit is .08.

The answer that the writer provides is that "It's all about your performance, and it's up to the cops." You would hope as a citizen that the first part of the explanation is correct, that it is about your performance on the field sobriety tests. The problem is that the second part of the explanation is exactly right, it is entirely up to the cop.

The article also rightly points out that the law states that you may be arrested for DWI/DUI when your ability to drive is impaired to the slightest degree by alcohol. It is yet to be determined what precisely this means, "impaired to the slightest degree." The reality is that it is as the writer suggests up to the cop.

This is the problem and it is very serious problem. It is left to the police officer to determine or opine whether a driver's ability to drive is impaired to the slightest degree. The fact is that the field sobriety tests are susceptible to interpretation at best and outright falsification at worst. The turn on the walk and turn test is not performed just right. The heel and toe did not meet on the 5th, 7th and 9th step of the walk and turn. The driver could not keep his hands at his side during the one leg stand. The driver did not appear to understand or follow one of the many directions given during the fields sobriety tests. And the horizontal gaze nystagmus (HGN) test has potential for abuse at every single step of the process. There simply is no way to prove that the cop misconstrued or falsified the test results.

So what's the problem? Perhaps, the officer is under stress to meet DWI/DUI quotas. This is the most innocent offense. Worst case is that the level of subjectivity in these tests allows the officer to target particular kinds or races of people. There is no check on the officer's discretion. It is entirely up to the officer. And judges are under too much pressure to question the credibility of an officer. The prosecutor cannot dismiss a case that lacks merit. The same news outlet, and probably several others, that printed the article on why under the limits DWI/DUI might occur will print an article the morning following a dismissal of a DWI/DUI that attacks the judge, the prosecutor, and even the cop for not being tough enough on DWI/DUI offenders.

Impaired to the slightest degree has too much potential for abuse. There are far too many pressures on judges, prosecutors and police to get these convictions. Impaired to the slightest degree is not standard. What does it mean? It means whatever the cop says it means and that is it. The fact is that most are very surprised to hear that .08 is not the true standard. Citizens have a right to expect laws that are precisely drafted so that they can stay within the bounds of the law. The law should set forth a precise standard for DWI. It should not be left to the cop on the street. It is not fair to the cop and it is not fair to the citizen. There simply is no way to predict or plan for such a vaguely written law.

So why doesn't New Mexico just pass a law outlawing drinking and driving, period? What would happen to restaurants and bars? What would happen to tax revenue for the State? There is your answer. It is more cost effective to pass the burden on to the unlucky driver caught in the vagaries of New Mexico's DWI/DUI laws than to risk the loss of tax revenue with drafting a law that reflects the reality of DWI/DUI enforcement in New Mexico and particularly in Albuquerque where it may or may not be a crime to drink even a sip of alcohol and get behind the wheel.

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The New Mexico Supreme Court addressed expert testimony given by police officer in DWI/DUI trials in State v. Marquez. The case involved an Albuquerque police officer who gave testimony regarding the statistical correlations between a suspect's performance on field sobriety tests and the probability of a blood alcohol score over .08.

The defendant's attorney had argued that the officer was not qualified as an expert to testify on statistical probabilities under the U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals. Interestingly, the State conceded that the testimony given by the officer was improperly admitted. Instead, the State argued that the admission of the evidence was harmless because there was sufficient legally admitted evidence for the conviction.

The case of State v. Marquez is interesting because the New Mexico Supreme Court found that the testimony was unnecessary for the conviction. The Court cited New Mexico Uniform Jury Instruction 14-4501 along with the well established New Mexico case law suggesting that the true standard is whether the defendant's ability to drive was impaired to the slightest degree.

The testimony of the officer undoubtedly would have established this without the statistical testimony. The officer testified that she saw the defendant stumble out of a bar, get in his car, almost strike another vehicle as he backed out of his parking space, and then back 60 feet into oncoming traffic on a congested and dangerous street. In addition, the officer testified that the defendant was slow to respond to questions, fumbled with his identification, was slow getting out of his vehicle, had to brace himself against his vehicle for balance and generally performed poorly on the field sobriety tests.

In light of impaired to the slightest degree standard, the statistical evidence was hardly necessary. However, the prosecutor got a little greedy perhaps and solicited the testimony anyway over the objection of the defense attorney. Basically, the officer gave testimony on statistical studies suggesting that poor performance on the field sobriety tests correlates to a high probability that the defendant's breath score exceeded the .08 limit.

The Court recognized that because of the impaired to the slightest degree standard, the breath alcohol score is not necessary for a DWI/DUI conviction in New Mexico. The Court further recognized that it is common knowledge that a breath score of over .08 is an indication of impairment. Thus, the testimony of the Albuquerque police officer, though unnecessary for a conviction, could have confused and misled the jury. In short, the testimony may have distracted the jury from its role of weighing properly admitted evidence by undue attention to the wrongfully admitted statistical evidence. In essence, the statistical evidence improperly undermined the credibility of the defendant.

Because the evidence was improperly admitted and could have confused or distracted the jury, the defendant's DWI conviction was reversed. The case was remanded for a new trial. In light of the evidence available to the State, and the Court's ruling that the breath alcohol score is unnecessary, the outcome of the new trial is likely to be the same as the first.

The case is somewhat paradoxical that the Court further restricts the bounds of admissible DWI evidence while at the same time reiterating its position that such evidence is unnecessary anyway. However, the case should prove important in cases where the evidence of intoxication is not so overwhelming as was the case here.

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There are often delays in indictment on felony cases in Albuquerque, and throughout New Mexico. We often get questions regarding the legality of the delay in indictment following the first appearance.

When a felony action is commenced in Albuquerque, the case typically begins in the Metropolitan Court on a first appearance. During the first appearance, the court will address the statement of probable cause. The burden for probable cause is pretty low at this stage. The statement of probable cause need only establish that a crime was committed and that logically a jury could find the defendant guilty based upon that statement if true.

It is rare that the court would find probable cause lacking. In cases where probable cause is found, the Albuquerque Metropolitan Court judge will first address bond. Assuming that bond has been satisfied, the judge will set 60 day conditions of release. These conditions are fairly routine such as no further violations of the law, no contact with the alleged victim, no return to the scene of the crime, no deadly weapons, no drugs or alcohol, and no leaving the County without approval of the Court.

Many people accused of crimes believe that once the 60 days is up, the State is barred from taking the case to grand jury. That is not the case. The only consequence of failing to take the case to grand jury within the 60 day conditions of release is that those conditions lapse. The State is still free to bring the charges at a later date, and unfortunately for the defendant over whom the charges are hanging, often a much later date.

The only deadlines for getting the case to grand jury and formal charges filed is the statute of limitations. The statute of limitations for criminal cases in New Mexico are quite lengthy as set forth in by statute as follows:

• • Capital or 1st degree violent felony - no limitation,
• • 2nd degree felony - 6 years from the date of the crime,
• • 3rd or 4th degree felony - 5 years from the date of the crime,
• • Misdemeanor - 2 years from the date of the crime, and
• • Petty Misdemeanor - 1 year from the date of the crime.

These deadlines are pretty lengthy so that a delay generally does not mean much regarding the intentions of the District Attorney. However, in less serious cases, no news is good news. In the meantime, if you are in this situation, you should keep your head down and avoid any contact with law enforcement. This means at a minimum staying out of trouble. It would be unfortunate to raise a red flag on an old case due to subsequent violations of the law.

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A series of articles over the last month point to significant budgetary issues facing law enforcement, the courts, and the District Attorneys offices across New Mexico. Albuquerque will feel the crunch as much as any.

In mid November, it was announced that the State police will be forced to cut back on hiring and training of new officers. The budget issues are so severe that the first 2 police academies for 2010 have been cancelled completely. The State Police was already short on officers. These additional cutbacks will leave the force stretched very thin.

The Second Judicial District Court in Albuquerque is down 23 positions. According to a national study, the court needs an additional 36 staff, and 10 judges to make it work correctly. In response, the clerk is cutting hours back even further to 10 AM to 4 PM. All court activities, including hearings, are being cut back as well. On Fridays, all court activity will close at 4:15 PM.

The DWI/DUI interlock fund for the poor is also running low. Interlock devices are mandatory for all DWI/DUI offenders. For those that refuse the breath alcohol test or blow .08 or over, the license revocation is automatic by Motor Vehicles Division (MVD). In addition, any driver convicted of DWI/DUI will be ordered by the court to have the interlock device for 1 year as a term of probation.

So what does any of this have to do with DWI/DUI enforcement in Albuquerque? It points to overburdened police departments, courts and district attorney's offices. Though I have not yet seen numbers of Albuquerque Police Department, the Metropolitan Court in Albuquerque, or the District Attorney's Office in Albuquerque, the trends are clear. Government budgets are in crisis in New Mexico and across the nation. Albuquerque is not immune.

All the while, Albuquerque Police and the Albuquerque District Attorney's office continue to burden the courts and state budgets with overzealous DWI /DUI enforcement. Albuquerque Police's DWI/DUI Unit continues to carry a 2 arrests per shift quota for its officers. Related to this quota is the continued and common practice of arresting drivers who are below the legal limit of .08 breath alcohol level. And then there are the DWI/DUI arrests of drivers who have not even been driving as with the recent veteran who was sleeping in his car to avoid driving while intoxicated.

Much of the impetus for these overzealous policies has arguably been driven by the quest for state and federal funding for DWI/DUI enforcement. These arrests, no matter how unfair and illogical, and in the case of arresting drivers for sleeping off a drunk contrary to public policy, helped push up the DWI/DUI statistics for Albuquerque and the State of New Mexico. With these statistics, the state was able to tap into federal funding, and Albuquerque was able to tap into both state and federal funding.

The well is running dry. So hopefully, the police will get back to enforcing the DWI/DUI laws in the spirit in which they were written. The State needs to keep drunk drivers off the road. That is the bottom line. A driver under the .08 limit is not legally drunk. If it is the intent to make it otherwise, then rewrite the law, or make it illegal to have any a sip of alcohol before getting in a vehicle. This raises all kinds of taxation issues as neither New Mexico nor Albuquerque can afford the loss of taxes associated with bars and restaurants. Again, it comes down to money.

Finally, don't encourage people to drive drunk by the threat of arrest for trying to do the right thing. Let drivers, encourage drivers to sleep it off. It makes no sense force a decision between driving drunk and being arrested for driving drunk for sleeping in your car. A gambling oriented individual would drive drunk. Thus this ridiculous trend endangers lives Perhaps that is not enough to halt to policy. If reason and logic fail, money never does. These policies are stretching an already overburdened court with cases that should not be there.

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The 10th Circuit Court of Appeals ruled that a common drug supplier does not make a conspiracy. In U.S. v. Caldwell, Michael Caldwell was convicted for conspiracy to distribute marijuana with two other individuals based upon the mere presence of a common supplier to Caldwell and another party. The jury determined that the three men had entered into a single a three party conspiracy to distribute at least 100 kilograms of marijuana over a two-year period.

The defendant admitted to a conspiracy with his supplier but denied the conspiracy with respect to the third party. It may sound like an inconsequential rhetorical argument but the finding of the tri-party conspiracy had significant consequences for Caldwell's sentencing. Because of the jury's erroneous finding of a three party conspiracy, the quantity of marijuana involved in the alleged conspiracy pushed Caldwell into a higher sentencing category.

The facts are pretty straightforward. Caldwell had purchased marijuana from Herrera. Caldwell then sold the marijuana to other users. A friend of Caldwell's, Anderson, source had dried up. Caldwell introduced therefore introduced Anderson to Herrera. Anderson then began buying his marijuana from Herrera. Caldwell received no economic benefit for the introduction nor was he involved in the exchanges between Herrera and Anderson other than the initial introduction.

The 5th Circuit Court of Appeals found that no single tri-party conspiracy existed. Instead, the government had shown only the existence of multiple conspiracies. The court stated that it is often difficult to distinguish between a single large conspiracy and several small conspiracies. However, the Court stated that it would not uphold the finding of large scale conspiracy by "piling inference upon inference...The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt."

Citing United States v. Sells (10th Cir. 2007), the Court set forth the following requirements for a finding of a conspiracy:

(1) two or more persons agreed to violate the law, (2) the defendant was aware of the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily became a part of the conspiracy, and (4) the alleged co-conspirators were interdependent.

The pivotal question according to the court was the existence of interdependence of the parties which is present only where the co-conspirators intended to act in concert for their shared and mutual benefit. Citing U.S. v. Evans (10th Cir.1992).

The court boiled the issue down to the question of whether "the mere introduction of a common supplier, made by one drug dealer to another, is sufficient to create a single conspiracy among all the dealers?" The court concluded that it was not.

The finding of a single large scale conspiracy created an erroneous factual basis for Caldwell's sentence. The court should not have included quantities sold by Herrera to Anderson. The case was therefore remanded to district court for resentencing based purely upon the transactions established at trial between Caldwell and Herrera.

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New Mexico Senator Tom Udall has introduced legislation that would require all states to implement ignition interlock programs modeled after New Mexico DWI program. New Mexico was the first state to require ignition interlock devices for all DWI/DUI offenders.

By law in New Mexico, a driver's license is automatically revoked by the Motor Vehicle Division (MVD) for either driving at or above .08 breath alcohol level or for refusing the breath alcohol test. For first time offenders, the revocation period is up to one year. For those individuals who test at .08 or higher, the first time MVD revocation is for 6 months. For those that refuse the test, the revocation is for one year. For second and subsequent offenses, the revocation is for one year.

During the revocation period, drivers may obtain an interlock license. The interlock license allows the revoked driver to drive so long as the vehicle driven has an interlock license installed. An interlock device will not allow a vehicle to start until the driver has blown into the breath alcohol measurement device. Any detection of alcohol will disable the vehicle. Driving without the interlock is charged as driving on a revoked license which carries up to 1 year in jail.

In addition to the MVD license revocation, the Court will also impose a one year interlock requirement on those convicted of DWI. Often, the court ordered interlock period will extend well beyond the administrative period of revocation. The interlock device is ordered as a part of the probation ordered in all DWI/DUI convictions. Violation of this provision is considered a serious violation of probation which could result in revocation of probation and incarceration for the remainder of the sentence.

New Mexico's DWI laws are pretty stiff. Admittedly, the results have been a significant decrease in the levels of drinking and driving in the state. The Centers for Disease Control has determined that repeat offenses dropped by 73% where the device was in use. These results clearly indicate the success of the program.

On the other hand, New Mexico has taken DWI enforcement to the extreme. People are routinely arrested, particularly in Albuquerque, even when their breath alcohol scores are below .08, sometimes significantly below .08. In addition to arresting and charging drivers below the .08 legal limit, the New Mexico Courts will convict people when they have not even been driving as in the recent case where a veteran was charged with DWI in Albuquerque while sleeping in his vehicle.

If Udall's bill passes, states could lose federal transportation funding for failure to adopt and enforce the act. Let's hope it does not become the race for federal funds that has led to the overzealous and completely irrational enforcement DWI laws that has occurred in New Mexico.

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A case in Ohio's Supreme Court recently set forth a framework for protection against the unlawful search & seizure of a suspect's cell phone. The case hopefully signifies a legal trend that should will across the country, including Albuquerque and the remainder of New Mexico.

The case of State v. Antwuan Smith established a warrant requirement prior to the search of person's cell phone. This marks the first time that the Supreme Court of any state has addressed this issue.

It is well established that searches conducted without a warrant are presumed unreasonable. There are exceptions related to officer safety and preservation of evidence which allow the officer to search the area within the arrestee's immediate control. If there is no issue of officer safety or preservation of evidence, then the exception no longer applies. It is equally well established that an officer may search any containers or articles on the defendant' person such as purses. Law enforcement have attempted to equate a person's cell phone to a purse or in the alternative to argue that search of a cell phone is necessary for the preservation of evidence. The Supreme Court of Ohio has refuted these arguments.

The Court's analysis rested upon the classification of a cell phone. A 5th Circuit Court of Appeals case analogized a cell phone to a closed container in the possession of the accused. However, this ruling partly arose as a result of the defendant's legal theory which in part conceded the analogy. The United States District Court for Northern California suppressed the warrantless search of a cell phone. The court reasoned that cell phones are far more than communication devices. Instead, they store immense volumes of personal information and the court said they were more akin to laptop computers which have far greater privacy protections than do purses.

The Ohio court took the latter position. As a result, the evidence seized from the warrantless search of the cell phone was ordered suppressed. The court's ruling recognized that the defendant's phone was not a smart phone but rather a less sophisticated model with phone, texting and camera capabilities.

The Ohio court stated that the 4th Amendment serves to protect the reasonable and justifiable expectations of privacy. The court found that citizens have reasonable expectation of the privacy of their cell phones. Moreover, there is no issue of officer safety or preservation of evidence that would suggest a warrantless search of a cell phone.

The law often trails behind the development of technology. The Ohio Supreme Court serves notice to law enforcement its own state as well those in other states that the warrantless search of cell phone which has become routine in criminal investigations will likely be challenged under the 4th Amendment. The issue is likely to become even more prevalent as many individuals now possess a variety of devices such as I-Pods, flash drives, and other devices capable of voluminous data storage.

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Federal prosecution for immigration violations reached a record high of 169,612 in 2009. According to the study out of Syracuse University, this number represents more than ½ of all criminal cases brought by the federal government.

Prosecution of immigration violations is up by almost 16% and reflects the Bush era policies of strict and speedy enforcement of the immigration laws. Many of the cases represent illegal reentry cases. Others related relate to crime related bases for removal and deportation. The Bush administration greatly increased the number of I.C.E (Immigration and Customs Enforcement) agents, Border Patrol agents, and federal prosecutors for purposes of enforcement.

Much of the increase is also, according the New York Times, related to the Department of Justice program Operation Streamline which relies on speedy and large-scale processing of plea bargains in immigration cases. It is suggested that the Department of Justice goes after the relatively simple immigration cases since these cases are very rapidly processed and closed compared to other cases. White-collar criminal cases take an average of 460 days for disposition. Narcotics cases take 333 days. By contrast, the immigration cases typically reach disposition in 2 days.

The success of the Operation Streamline program has now met with constitutional challenges particularly in Arizona which accounted for more than 22,000 of the federal criminal immigration cases in 2009. The 9th Circuit Court of Appeals recently ruled in U.S. v. Roblero-Solis that the process of mass pleadings is a violation of Rule 11 of the Federal Rules of Criminal Procedure regarding the taking of pleas in federal court. Interestingly, despite the finding by the court that the plea process was a violation of Rule 11 which fundamentally a Due Process protection, the convictions in the case were upheld since the defendants failed to show that the process affected their decisions to enter the pleas.

The growth in the number of immigration prosecutions shows that the Obama Administration is equally serious about immigration enforcement. In fact, the data from the Syracuse study indicate that the rate of prosecution has accelerated. These numbers appear to conflict with the Administration's public statements regarding immigration reform. Perhaps, the tough position on enforcement is seen as necessary for progress on future reform.

In any event, it is clear that immigration enforcement will remain a high priority at the Department of Justice for some time to come. In addition, though the mass plea process under Operation Streamline is a violation of Rule 11, it appears that the process will stand in light of the ruling in Roblero-Solis.

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DWI/DUI is taken very seriously in New Mexico. Strict DWI/DUI enforcement is intended to deter drunk driving. As such, the laws are very strictly enforced throughout New Mexico and the consequences of a DWI/DUI conviction can be severe. In fact, Albuquerque police go even further arresting and charging people for DWI even when they have not been driving.

Due to the strict enforcement of DWI/DUI laws, people arrested for a 1st time DWI first want to know whether they will be going to jail. The next question often relates to their driver's license. Finally, they typically want or need to know the other penalties and fines associated with DWI/DUI in New Mexico.

For a first time offender, the worst case outcome is generally sentencing to the First Offender Program. As part of the First Offender Program, the defendant's sentencing is deferred for one year. The defendant is placed on supervised probation during this one year period. In addition, following conditions are imposed on the defendant as part of the First Offender Program:

1. DWI School,

2. Alcohol and Drug Abuse Screening,

3. Counseling and Treatment if recommended following screening,

4. Attendance of the Victim Impact Panel,

5. Random drug and alcohol testing if deemed necessary by probation following screening,

6. No consumption or possession of alcohol or illegal drugs,

7. Installation of an ignition interlock device on the defendant's vehicle for 1 year (this allows the defendant to continue to drive while on probation),

8. Community service which is typically 24 hours,

9. Payment of Court Costs, and

10. Payment of probation costs (these are often waived by the Court).

This is the standard sentence for a simple first time DWI/DUI in New Mexico. This sentence is imposed whether or not the defendant enters a plea or loses at trial. Thus, many simple first DWI's will go to trial since there is no difference in the penalties between a conviction on a plea versus conviction at trial.

The decision of whether or not to go to trial is made more difficult in an Aggravated DWI case. Conviction on an Aggravated DWI carries mandatory 48 hour jail time. Aggravated DWI is charged in cases where the driver's breath alcohol score is .16 or higher, the driver refused the breath alcohol test, or there was an accident involving alcohol.

Because of the mandatory 48 jail time, many DWI defendants do not want to risk a conviction of Aggravated DWI at trial. The result is that many, if not most, Aggravated DWI cases plea to a simple first DWI prior to trial which allows the defendant to enter the First Offender Program.

So getting back to the opening, the question is whether a first time DWI defendant will go to jail, and whether he or she will be able to drive following conviction on a DWI. The answer to the first question is that it is very unlikely under the current state of New Mexico law that a first time DWI defendant will go to jail unless he or she is convicted on an Aggravated DWI. The answer to the second question is yes, the defendant will be allowed to drive with an interlock license.

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In U.S. v. Pena-Montes, the 10th Circuit Court of Appeals addressed the legality of questioning under the 4th Amendment of an individual following a traffic stop. The case involved the prosecution of the defendant Jose Luis Pena-Montes for illegal reentry into the United States following his arrest following the traffic stop.

During the course of the traffic stop based upon the officer's belief that the car in which Pena-Montes was a passenger lacked dealer plates. Upon further investigation, the officer determined that the car did have dealer plates. However, he wrongfully believed that the use of dealer plates was restricted to certain times of day. Because there had been auto thefts from Albuquerque car dealers in the recent past, he suspected that the vehicle was stolen.

Due to his suspicions, he continued to question the driver. He then turned his questioning to Pena-Montes questioning him on his identity. Pena-Montes gave false and misleading answers regarding his identify. Due to the false identity provided by Pena-Montes, the officer arrested him for concealing identity.

Upon arrest, Pena-Montes was transported to and identified by Albuquerque Police identification. Upon identification, it was determined through the NCIC national database that he had previously been convicted of a felony in California and subsequently deported.

Based upon these findings, Pena-Montes was indicted on one count of illegal reentry of a removed alien following a felony conviction in violation of 8 U.S.C. §1326(a) and (b). Pena-Montes moved for suppression of all evidence derived from the traffic stop, including his identity. The district court denied his Motion finding that the questioning following the stop was not illegal under the 4th Amendment.

The Court of Appeals reversed the District Court holding that the officer had violated the 4th Amendment by continuing to question the occupants of the vehicle once the basis for the stop, illegal plates, was found to me missing. The Court provided an excellent analysis of search and seizure law in New Mexico

The court began by citing the 2008 10th Circuit case of United States v. Rodriguez-Rodriguez for the assertion that "A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment." Citing United States v. Winder (10th Cir. 2009), the Court set forth the requirements under Terry v. Ohio that the stop must be justified at its inception and the resulting detention must be reasonably related to the basis for the stop.

Under this standard, the Court found that the continuing questioning of both the driver and Pena-Montes did violate the 4th amendment prohibitions against illegal search & seizure since questioning continued following the determination that the basis for the stop proved to be lacking. Unfortunately, this may not have saved Pena-Montes as will be seen in part II of this blog.

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It is estimated that drug violence has claimed over 16,000 lives in Mexico during the past three years. These deaths have resulted from a virtual war between the Mexican government and the drug cartels. The cash crop is marijuana.

The cartels are turning increasingly to child runners. Mexican drug gangs are recruiting children as drug runners and mules. The Texas Department of Public Safety refers to the child recruitment campaign as "scare and awe." The awe comes in the form of the promise of easy money and status while the fear comes in the form of torture and death.

Several states now have medicinal marijuana programs, including New Mexico. It is estimated that California has up to 2000 medical marijuana dispensaries. There is now even a Cannabis University, Oaksterdam University, that teaches people how to grow and dispense weed. Yet New Mexico, and Albuquerque in particular, continues to prosecute possession very aggressively. God forbid, you have over 8 ounces in your possession because you will likely then be charged with distribution.

Lives continue to be ruined on both sides of the border as a result of the war on drugs and the prosecution of marijuana possession. Thousands of lives have been lost, children are exploited and even tortured, immigrants are deported routinely for marijuana possession, people are hauled into court for minor possession, and those with more than 8 ounces can face 2nd degree felony trafficking charges carrying up to 9 years in prison.

No amount of reason has worked thus far to alter the enforcement of the marijuana laws. Perhaps, reason simply lacks the persuasive force of profits. This is particularly so when the insurance industry is involved. Due to the explosive growth of the medical marijuana industry, a new cottage insurance industry catering to the needs of the medical marijuana industry has sprouted up. Insurance is now available for everything from standard worker's compensation to crop theft insurance.

Medical marijuana is becoming big business California leads the country with as many as 2000 medical marijuana dispensaries. Colorado is a distant second with 60. However, the number is growing in the states that have legalized medical marijuana. You can bet the industry is growing when the insurance industry has taken note.

The insurance industry is generally much maligned and for good reason. Maybe, the very greed that is generally so repulsive in the insurance industry will lead to positive social change as the medical marijuana industry takes root. Perhaps, similar profit motives will dictate more enlightened marijuana policies across the board as the insurance industry spots new profit centers. Where the logic of saving lives, saving children from exploitation and torture, saving immigrants from deportation for minor possession, and saving otherwise law abiding citizens from often harsh and inhumane prosecution has fallen on deaf ears, the logic of capitalism will hopefully carry the day. This is a rare occasion when I am pulling for the insurance industry to make more money.

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The felony process can be pretty confusing for accused persons in Albuquerque and throughout New Mexico. In addition, the process differs from county to county. The process below applies to the process followed by the district attorney's office in Albuquerque.

A felony criminal action may begin with an arrest or a felony warrant. If you are arrested, you are taken into custody until your first appearance or until you are able to post bond. If you are able to post bond, then you are released pending the first appearance which will generally occur within a few days of your release.

If you are unable to post bond, then the prosecutor must take the case to the grand jury within 10 days of arrest. Failure to bring the case to grand jury within 10 days will result in release from custody. It does not mean the case goes away. It simply means that the State must release you from custody pending the grand jury investigation.

If you are able to post bond, the case will be set for first appearance. At the first appearance, the prosecutor will present a statement of probable cause outlining the charges against you. The statement of probable cause requires no presentation of evidence. The defendant may dispute probable cause but again the statement is taken at face value and the statements very rarely fail to state adequate probable cause for the arrest. It is simply a statement of the case by the prosecutor or the arresting officer. These are taken at face value by the judge.

Assuming the judge finds probable cause, the judge will then set conditions of release and bail. The conditions of release for felony cases typically include the following terms:

1. The defendant may no possess firearms or dangerous weapons,
2. The Defendant will not return to the location of the alleged incident,
3. The Defendant will not possess or consume alcohol/illegal drugs or enter liquor establishments,
4. The Defendant will not violate federal, state or local criminal law,
5. The Defendant notify the Court of any change of address,
6. The Defendant will not leave the jurisdictional county of the court,
7. The Defendant will maintain contact with his or her attorney,
8. The Defendant will have no contact with the alleged victim or any witnesses,
9. The Defendant will no drive without a valid license.

The conditions of release continue for 60 days or until the date of arraignment if the Defendant is eventually indicted. This does not mean the case goes away after 60 days if the prosecutor has not indicted the Defendant by that time. It simply means the conditions of release lapse.

The prosecutor has very liberal time limits on obtaining the indictment. The only limitation is set by the statute of limitations which are very long in criminal cases. On rare occasions, a Motion to Dismiss for pre-indictment delay may be filed but these are very difficult to win.

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The United States Supreme Court finds that the 6th Amendment right to confrontation requires that an analyst who tested drugs in the lab must testify in court to get those lab results entered into evidence. This important case will impact both drug cases and DWI/DUI cases in Albuquerque and throughout New Mexico.

The United States Supreme Court case of Melendez-Diaz v. Massachusetts involved the introduction of evidence by the prosecution of laboratory certificates from the state laboratory regarding cocaine connected to the defendant. The analyst that conducted the testing of the cocaine was not present at trial.

The defendant objected to the admission of the lab certificate without in-court testimony by the lab analyst. The defendant argued that the practice was a violation of the 6th Amendment confrontation clause as set forth in the 2004 Supreme Court case Crawford v. Washington.

The United States Supreme Court in Melendez-Diaz v. Massachusetts agreed that the practice of admitting lab certificates in lieu of or in the absence of foundational testimony was a violation of the confrontation clause as set forth in Crawford.

The court rejected the prosecution's arguments that these analyst were not accusatory witnesses. The court stated that there was no exemption from the confrontation clause for those witnesses testifying to facts other those observed at the crime scene. The court found any witness who offers his testimony is subject to the confrontation clause.

The court also refused the prosecution's argument that these certificates are excluded from the hearsay rules as official business record. Likewise, the Court refused the argument that these lab analysts are neutral and unbiased simply applying scientific methods to the substance in question. Finally, the court stated that it was immaterial that the defendant himself could have subpoenaed the analyst to court holding that it was the State's burden to bring their witnesses to court for foundational purposes.

The Melendez case could have significant impact on cases throughout the State of New Mexico. It appears that the ruling will cover the admission of lab results from New Mexico's scientific lab division in both drug cases and DWI/DUI cases. The cases are winding their way through the New Mexico courts now as the Courts here attempt to deal with the Melendez-Diaz rulings.

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The recent New Mexico Supreme Court case of State v. Joshua Garcia makes clear that Article II, Section 10 of New Mexico's Constitution extends greater protection from illegal search and seizure than that set forth in the 1991United States Supreme Court case of California v. Hodari D.

State v. Garcia involved a domestic violence call whereby the caller indicated that she wanted an individual named Joshua Garcia removed from her home. Upon responding to the call, the officer saw a man walking across the street near the caller's address. The officer immediately flashed his spot light on the unidentified man and told the man to stop. The officer had no prior knowledge of the identification of the defendant. Garcia continued walking past the patrol car and which point the officer again instructed him to stop. Garcia ignored the instructions of the officer and continued walking. The officer sprayed Garcia twice with pepper spray. As Garcia continued walking, the officer saw something fall from his pocket at which time the officer tackled and handcuffed Garcia. The article that fell from Garcia's pocket was identified as crack cocaine.

Garcia was charged which possession of crack cocaine. The question that arose was whether the evidence of crack cocaine should be excluded from evidence as the fruit of an illegal search and seizure by the officer. The District Court refused to suppress the evidence under the "fruit of the poisonous tree" doctrine. Garcia pled guilty to the charges reserving his right to challenge the court's suppression ruling.

The Court followed the ruling set forth in the 1997 New Mexico Supreme Court case of State v. Gomez. State v. Gomez explicitly recognized that New Mexico's constitutional protections could at times exceed the protections afforded under federal law. Upon applying the law set forth in Gomez, the Court found in Garcia that New Mexico's Constitution, Article II, Section 10 provided greater protection than that set forth in Hodari D.

In Hodari D, officers drove up on a group of youths huddled together. Upon seeing the patrol unit, the youth took flight. The officers pursued the youth on foot. During the pursuit, one of the youth discarded a rock of crack cocaine. The officer tackled the youth and recovered the discarded crack. The United States Supreme Court found that the youth was not seized at the time the crack was discarded. The Court determined that a seizure is defined by the reaction of the suspect. Because the suspect fled, there was no seizure despite the fact that the pursuit lacked any reasonable basis from its inception. Because there was no seizure, the evidence was not illegally seized.

The New Mexico Court in Garcia reverted back to the law as previously set forth by the United States Supreme Court in the 1980 case of U.S. v. Mendenhall. Mendenhall stated that a person is seized when a reasonable person under the circumstance would not feel free to leave. Utilizing the Mendenhall standard, and the protections set forth in Article II, Section 10, the Court found that Joshua Garcia was illegally seized at the moment the officer shown his spot on him and commanded him to stop. Because there was no reasonable suspicion for the stop, the search and seizure that ensued was illegal, and the crack cocaine should have been excluded from evidence.

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In Albuquerque and throughout New Mexico, you can be charged with DWI even when you are under the legal limits. You can even be charged for DWI when you have not been driving at all. In fact, it is illegal to sleep in your truck after drinking. Albuquerque Police will charge you with DWI and the Courts here will convict. This bizarre consequence with potentially disastrous effects is made possible by New Mexico case-law.

A case in Georgia last week found that one could not be charged with auto theft for stealing a lawnmower. Contrast that with cases around the country where people have been charged with DWI for driving a lawnmower drunk. Granted these drivers were driving on the roads, and one was actually making a beer run when he was pulled over. However, in the zealous drive to prosecute people for DWI even when they are not driving, it is only a matter of time that the Albuquerque Police will arrest, and charge someone for mowing drunk. Perhaps, we will have a new category of MWI (Mowing While Intoxicated) to go along with SWI (Sleeping While Intoxicated).

The Georgia case piqued my interest in New Mexico' treatment of mowing while drunk as this seems to be a favorite past-time of many. I could find no case-law addressing the situation. However, if a man can be charged and convicted for DWI for sleeping in his truck, I would be very reluctant to have a beer before jumping on my lawnmower. In fact, the situation posed to the New Mexico Courts by those electing to sleep off a bender in their vehicle poses far greater public safety risks than the lawnmower scenario. This suggests the very real possibility of DWI while mowing the lawn. The math speaks for itself.

According to the National Highway Safety Administration's DWI Training material which is the universal source of DWI training for law enforcement in the United States, for every DWI arrest there are 500 to 2000 DWI violations that go undetected. Contrast this with the odds of detection of sleeping in your vehicle in a bar or restaurant parking lot after drinking. I have found no statistics on this but I would guess that the odds of detection are pretty high due to random patrols of such locations. Looking at the math, an odds driven person might determine that the risks are far greater sleeping off a drunk than driving home.

Thus, the math associated with this calculation would actually encourage drunk driving rather than discouraging it. This is a bizarre outcome of a flawed and overzealous DWI policy throughout New Mexico, and particularly in Albuquerque. This policy is dangerous for both the drunk driver as well as the innocents he or she may encounter on the way home. I can think of no possible victims associated with that same person sleeping off his drunk in his car. We can only hope the Courts will address this anomaly in the near future. If they do not, it is just a matter of time before an innocent victim is badly injured or killed as a result of this bizarre law and policy.

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