Albuquerque Criminal Lawyer Blog

On every criminal charge filed in Albuquerque or anywhere else in New Mexico for that matter, an Order Setting Conditions of Release will be issued. The Order is pretty standard for the most part. The Order will prohibit the possession or consumption of alcohol or illegal drugs, the violation of any laws while out on release, driving without a valid driver's license, or the possession of firearms or other deadly weapons. Finally, the Order will prohibit contact with the alleged victim(s).

These Orders Setting conditions of release are taken very seriously by the judges throughout New Mexico, and especially in Albuquerque. Violation of the conditions can result in arrest and worse a hold until the date of trial. The condition that stings the most in domestic violence cases is the Order prohibiting contact with the alleged victim. Often, the alleged victim does not want to pursue the charges. There are many cases when the alleged victim did not even call the police. Instead, a neighbor may have called in a domestic violence call. Frequently, the alleged victim will flat out explain to the police that nothing happened, and there was no domestic violence.

An arrest is made anyway as a matter of law enforcement policy. The police officer simply will not take the risks of leaving both parties unattended at the scene of a possible domestic violence. There are too many high profile cases where this was done, and one of the parties was badly injured or even killed.

The arrest of course kicks in the criminal process and the no-contact order. The defendant is now prohibited from returning to the home. This places enormous emotional strain on the couple or family. In addition, the financial consequences can be disastrous.

So what should you do? This is a hard question to answer and an even harder decision to make on your part. You can file a Motion to Modify Conditions of Release. This requires both your appearance and the appearance of the alleged victim in court before the judge. Once the alleged victim appears, the District Attorney, and sometimes the Court, will strongly insist that the alleged victim appear for all future court appearances. The prosecutor may even insist on regular contact between the alleged victim and the prosecutor's office. This keeps the alleged victim under the control of the District Attorney and almost insures the alleged victim's appearance in Court on the date of trial.

Why is this a problem? Many of the cases described above get dismissed eventually because the alleged victim does not want to pursue the charges, and will avoid the District Attorney to avoid being forced to proceed on questionable or baseless charges. Once the District Attorney has made contact with the alleged victim, the greater the chances are that the District Attorney will coerce the attendance of the alleged victim even by threat of contempt, or the threat of charges against the alleged victim for making false criminal charges.

Thus, the reluctant alleged victim who knows full well the call to the police and the consequent criminal charges should not have been made will show up for court out of fear of reprisal by the District Attorney for their refusal to cooperate. Thus, in the end, you are faced with the decision of modifying the conditions of release which on the one hand allows you to legally go home while on the other greatly increasing your chances of a full blow trial.

Domestic Violence can be very serious, and often it requires immediate law enforcement intervention to protect the parties. The police, the courts and prosecutors take it very seriously as well. Often, however, the person making the call does not realize how seriously it is taken. It happens all the time. During the heat of an argument, one of the parties calls the for a any number of reasons other than a real threat to his or her safety. Frequently, there is no violence, threats, or harm of any kind other than hurt feelings. No act of domestic violence has in fact occurred under the Statutory Definitions of Domestic Violence in New Mexico. The party calling the police has called for the wrong reasons whatever those reasons may be.

Immediately, the caller realizes the mistake that he or she has made. Typically, the other party is arrested. On occasion, the caller is arrested. Inevitably, somebody is arrested. Police officers do not make courtesy calls for domestic disputes. They don't show up to help the parties talk out their problems. Somebody is leaving the home in handcuffs. It often does not matter that the caller recants sometimes begging the police not to arrest their partner or spouse. It doesn't matter later when the caller contacts the prosecutor explaining that he or she does not wish to prosecute. The criminal justice system has been set in motion and the couple is in for a long, stressful and often expensive ride.

I get the call all the time where my client explains that his or her partner does not wish to pursue the charges. In fact, these are generally the first words from my clients mouth in cases of domestic violence. Despite the lack of reason or rationality, and even in the face of clear evidence that there was no domestic violence, prosecutors generally will not drop the charges. Instead, my client and his or her partner or spouse must endure the long and often frustrating criminal justice process as the case makes its way through the system.

This is the bad news. The good news is that eventually these types of case generally get dismissed. In the end, the prosecutor cannot prosecute a case without a cooperative victim. Typically, these cases will get dismissed due to the refusal or failure of the alleged victim to appear in court. The prosecutor can, and will in serious cases of domestic violence, subpoena the victim to court. However, if it does go to trial, and the victim testifies that there was no act of domestic violence, then the client will be found not guilty.

The problem is that this process takes up to 6 months before the case is finally dismissed or taken to trial. In the meantime, the client and the partner or spouse must suffer the emotional and financial stresses of court. Worse yet, the parties may be prohibited from contact during this entire time period placing enormous financial and emotional strain on the parties and their family.

So what is the lesson here? Don't call the cops unless you really need them. If you need marital counseling, get it. Cops are a very poor and expensive alternative to counseling.

Parrish Collins
Collins & Collins, P.C.
http://www.collinsattorneys.com