Albuquerque Criminal Lawyer Blog

Two recent cases from New Mexico's Supreme Court apply the recent United States Supreme Court decision of Melendez-Diaz v. Massachusetts to DWI/DUI blood draws, and chemical testing in controlled substance cases.

The first case of State v. Bullcoming involved a felony aggravated DWI/DUI conviction. The State introduced a blood alcohol test (blood draw) that was taken from the defendant under a search warrant issued following his refusal of the breath alcohol test. The court made some interesting and somewhat contradictory findings regarding the admissibility of the report and the defendant's 6th Amendment right of confrontation of witnesses.

First, in light of the Melendez-Diaz decision, the Court reversed its prior position in State v. Dedman that had ruled that forensic tests were public records and therefore not subject to 6th Amendment confrontation protections set forth in the United States Supreme Court case of Crawford v. Washington. Dedman found that these reports were non-testimonial in nature since they were public records. Under Crawford, only testimonial evidence prepared in anticipation of trial is subject to 6th Amendment protection.

Melendez-Diaz ruled that these reports are "quite plainly affidavits" and that "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause and Crawford. To bring New Mexico law in line with the United States Supreme Court, the Court in Bullcoming ruled that these reports are testimonial, they do not fall within the business records exception to the hearsay rule, and therefore they are subject to cross examination.

Then remarkably, the Court found that the analyst preparing the report was a "mere scrivener" simply transcribing the results from the gas chromatograph. As such, the analyst/scrivener was unnecessary in court to meet the demands of Melendez-Diaz, Crawford and the 6th Amendment right to confrontation of witnesses. Instead, the Court allowed for the presence in court of any other qualified analyst to testify to the results of the testing analyst/scrivener.

It is unclear where this case will go from here. However, it seems that the second part of the ruling renders the first part impotent. The second part of the holding ignores much of the analysis in Melendez-Diaz which makes clear that these types of reports are prepared in anticipation of trial. The court in Melendez-Diaz addressed the pressures on analysts to provide results helpful to the prosecution. The court in Bullcoming ignores this possibility leaving the analyst/scrivener free of cross examination on possible errors in the testing instrument or processes, or even the outright fabrication of the results contemplated in Melendez-Diaz.

Bullcoming takes a step in the right direction. At least, blood draw results will no longer simply be admitted as gospel with no testimony from a representative from the state lab. However, the right to confrontation and cross examination has taken a blow when the testing analyst can escape cross examination on his or her experience, expertise, testing procedures, background, history, biases, and prior work product to name only a few possible sources impacting credibility.

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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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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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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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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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The 4th Amendment to the United States Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment protections against unlawful search and seizure rests on the right to privacy proving protection against unlawful and abusive law enforcement practices that would invade that right to privacy. The protections of the 4th Amendment are broad and complex. Entire books are written on the 4th Amendment, and there are legal scholars that spend much of their careers studying and writing about the 4th Amendment. Many of the most important cases in criminal law and criminal procedure derive from the 4th Amendment as do the rights of criminal defendants.

The importance of the protections afforded under the 4th Amendment cannot be over-stated. The 4th Amendment protects at every stage of a criminal case from the initial stop by the officer, to the search of the suspect's vehicle, home, property or other belongings both before, during or after the arrest, and of course to the arrest itself.

The 4th Amendment provides protection in all variety of encounters with law enforcement. The protections stretch from the petty shoplifting offense, to DWI/DUI stops and investigations to the most serious felony offenses. Violations of the 4th Amendment have serious consequences including the exclusion of evidence seized illegally. Often, the exclusion of illegally seized evidence will result in the dismissal of the charges in whole or in part. Should the prosecutor refuse to dismiss based upon the lack of evidence, the exclusion of the illegally seized evidence can be an insurmountable obstacle for the prosecution at trial.

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The Supreme Court of New Mexico overruled the New Mexico Court of Appeals in State v. Anaya. The Court of Appeals had ruled that evasion of a DWI/DUI Checkpoint was not an illegal act and therefore could not provide the reasonable suspicion necessary for an investigatory stop. The New Mexico Supreme Court ruled that the surrounding circumstances and the evasion of the a checkpoint itself gave rise to a reasonable suspicion of DWI/DUI and thus was sufficient foundation for the investigatory stop.

State v. Anaya involved a DWI checkpoint set up outside of Farmington. The highway leading up to the checkpoint was well marked with cones, droplights, emergency lights, and signs indicating to approaching motorist the presence of the checkpoint. The defendant, Anaya, upon seeing the checkpoint, made a legal u-turn to avoid the checkpoint. She was pulled over by a police officer who was stationed nearby for these very purposes.

Anaya attempted to suppress the evidence gathered during the stop arguing that the stop constituted an illegal search and seizure in violation of the 4th Amendment. The trial court denied the motion. Anaya entered a no contest plea reserving the right to challenge the constitutionality of the stop.

The New Mexico Court of Appeals sided with Anaya finding that the u-turn was not a violation of law, nor was evasion of a DWI/DUI checkpoint without more a violation of law. As such, the u-turn and evasion of the checkpoint was insufficient for the investigatory stop. The Court also found that the checkpoint was constitutionally unreasonable under Las Cruces v. Betancourt (NMCA 1987). The Supreme Court found otherwise finding that the checkpoint was indeed reasonable and legal under the law, and further that evasion of the checkpoint itself provides reasonable suspicion for a investigatory stop.

Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest. The recent New Mexico Court of Appeals decision in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls. Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant's phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant's attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant's Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody. The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

The lesson here is clear: Stop Talking and Hang Up the Phone. It is exceedingly unwise to voluntarily give incriminating statements to a police officer over the phone particularly when you initiated the call. Miranda will not protect you here.

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington. The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.

A criminal defendant has a right to confront and cross examine the State's witnesses under the 6th Amendment. This is the chief weapon for domestic violence defendants in Albuquerque and throughout New Mexico. The refusal of the alleged victim to testify is the basis for the great majority of the dismissal of these types of cases. Unfortunately for defendants, this option may be very limited in the future as a result of the New Mexico Court of Appeals ruling in State v. Soliz.

The U.S. Supreme Court of Crawford v. Washington made the right to confrontation of witnesses more explicit when it ruled that a defendant has a right to confront any testimonial witness. The Court stated that when the witness is unavailable, any out of court testimonial statement made by that witness is inadmissible. The question becomes what is "testimonial"? Crawford set out some guidelines with the basic premise being whether or not the statements were given with an eye toward prosecution of the defendant.

The U.S. Supreme Court in Davis v. Washington set further guidelines on the term "testimonial." The Court in Davis stated that statements are non-testimonial if they are given with the primary purpose of assisting the police in an ongoing emergency. They are testimonial when there is no such ongoing emergency, and the primary purpose of the statement is to provide information potentially relevant to a subsequent criminal prosecution.

The New Mexico Court of Appeals in State v. Soliz had an opportunity to address the definition of testimonial witness in a domestic violence setting. State v. Soliz involved a domestic violence call to 911. Soliz girlfriend was frantic and crying when she told the 911 operator that Soliz had just attacked her, he had fled, he had pursued her with the instrument with which he had attacked her, and he was under the influence of drugs or alcohol.

The Court in Soliz followed Davis fining that the statements by Soliz' girlfriend were non-testimonial since made in an emergency situation for the purpose of gaining assistance from the police. Because they were non-testimonial, they were fully admissible at trial despite her unavailability. In fact, the girlfriend refused to testify or otherwise cooperate in the prosecution of Soliz. This frequently occurs in domestic violence cases.

The ruling in Soliz poses some real potential problems for domestic violence defendants in the future. In essence, Soliz will allow the State to go to trial on the back of a 911 call without the necessity of bringing the victim to trial. The lack of a victim has in the past been the primary means for getting these cases dismissed. This option is now severely curtailed by Soliz.

Continued Assault on the Rights Against Unlawful Search & Seizure

The 10th Circuit Court issued another remarkable ruling that continues the assault on the rights of individuals to be free of unlawful search and seizure. In U.S. v. Roach (10th Cir. 2009), the court ruled that although a warrant lacked probable cause, the evidence seized during the unlawful search is admissible so long as the officers acted in good faith.

An affidavit was issued in support of the warrant from the federal magistrate. The affidavit failed to establish probable cause that the defendant was a member of the gang under investigation. The affidavit also failed to establish that the defendant even lived at the residence that was to be searched. In fact, the residence was the defendant's girlfriend's residence.

The unlawful search unsupported by probable cause for the warrant resulted in the seizure of a variety of drugs and firearms. The defendant moved to suppress the illegally obtained evidence. The motion to suppress was denied.

In U.S. v. Roach, the 10th Circuit Court of Appeals upheld the denial of the suppression motion. In doing so, the court acknowledged a warrant should issue only on probable cause. The Court further stated that there must be probable cause to believe that a crime has been committed, the defendant committed the crime and that the place to be searched has some connection to the crime. The court stated that probable cause could not be built upon hunches.

Then despite the very clear state of the law the Court ruled that suppression of the evidence must be refused if the officers executing the warrant relied in good faith on the authorization of the magistrate.

This is pretty remarkable circuitous reasoning clearly directed toward further restrictions on the rights against unlawful search and seizure. After all, did the officers themselves not provide the magistrate with the affidavit upon which the warrant was issued? So the officers are relying upon the magistrate who issued the warrant who relied upon the affidavit provided by the officers. In short, the officers have relied upon their own faulty affidavit which failed to establish probable cause. How can this ever be construed as good faith?

It is unlawful in New Mexico for a police officer to stop you under the pretext of a traffic violation for the purposes of investigating another unrelated crime. The law of New Mexico goes further in protecting its citizens against unlawful search and seizure under these circumstances than federal law under the U.S. Supreme Court decision of Whren v. United States.

Under Whren, it is allowable for a police officer to stop someone under the pretext of a traffic stop in order to investigate them for something entirely different, such as possession or distribution of narcotics. New Mexico through State v. Ochoa recognizes the danger of allowing such searches. In the Ochoa case, the police officer suspected an individual of possession of narcotics. He lacked any verifiable proof, and he lacked a valid warrant to search the vehicle. Due to his hunch, and despite the lack of a warrant or other evidence of possession, he called the vehicle in on a traffic violation, and the car was stopped by another officer. Indeed, there were drugs in the vehicle.

The Court in Ochoa recognizes that due to the huge volume of possible traffic offenses, we are all in violation of at least one traffic law at any given time. Allowing a police officer to stop someone to investigate an unrelated crime under the pretext of a traffic violation would basically nullify our rights against illegal search and seizure while in our cars. We would be at the mercy of the whim of any particular officer while in our vehicles. Police officers would be free to search our vehicles at their leisure since they would need only articulate any one of hundreds of possible traffic violations. It would not take much of an imagination to come up with a reason to stop a vehicle. There would be no protection at all from the search of our vehicles. Every citizen, both guilty and innocent, would be subject to abusive police practices. The right to privacy in our vehicles would have little meaning.

Fortunately, the Supreme Court of New Mexico recognized the potential for abusive police practices under Whren. The court laid out some guidelines. The Court in Ochoa stated that in determining whether or not the stop was pretextual, the Courts should consider the totality of the circumstances, the credibility of witnesses, and the weight of the evidence. The totality of the circumstances includes a consideration of the both the objective reasonableness of the officer's actions and the subjective intent or what the Court described as the "real reason" for the stop.

The burden of proving pretext is on the defendant. However, if it is found that the stop was not reasonable from its inception, any evidence discovered during the illegal stop will be excluded.

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

Last year, the New Mexico Court of appeals ruled in State v. Anaya ruled that a legal U-turn prior to a DWI/DUI checkpoint at a sign announcing the checkpoint provides no more than a generalized suspicion of DWI/DUI. Without more, the Court of Appeals determined that a U-turn alone prior to a checkpoint is insufficient to create reasonable suspicion for the stop of the driver, and an ensuing DWI/DUI investigation. As a result, the DWI/DUI conviction in the case was reversed.

The Supreme Court of New Mexico has now overturned that ruling. The Court ruled that the circumstances surrounding the U-turn suggested evasion of the checkpoint and provided the reasonable suspicion for the stop. As a result, the conviction was reinstated.

The state of the law after the Supreme Court ruling in State v. Anaya is that making a U-turn in proximity to a DWI/DUI checkpoint is grounds for a stop. In fact, it should be assumed that any discernible evasive action to avoid a checkpoint will result in the stop of your vehicle.

The Supreme Court's ruling coupled with the new mapping technology for more effectively establishing DWI/DUI checkpoints makes drinking and driving a very high risk endeavor. The new technology will allow law enforcement to identify the highest yielding checkpoints. The new level of effectiveness of these checkpoints will make avoiding them even more difficult. Avoiding them at the scene will result in a stop.

A DWI/DUI conviction in New Mexico has severe consequences. The DWI/DUI process is long and stressful even if you do win your case. Do yourself a favor and find a designated driver. It just is not worth it.

Often times, if you are suspected of a crime, a criminal investigation will begin. In some cases, particularly in cases of economic crimes, the case will not be referred to the prosecutor until the investigation has been completed. These investigations can be very lengthy so there is time to act prior to the referral to the prosecutor.

In the case where a criminal investigation is started against you, a law enforcement investigator will typically contact you for purposes of an interview. The request may come by a phone call or even a letter. This situation can be very stressful. It can also be hazardous for your rights. You should proceed very cautiously in this situation, and you should immediately contact an attorney.

You do not want to ignore the investigator if there is possible resolution of the case prior to referral to the prosecutor. This could result in an immediate referral of the case to the prosecutor. Once the case gets to the prosecutor, you have an entirely new set of problems. If there is any chance of stopping the referral of the case to the prosecutor, then you should consider hiring an attorney for purposes of working out a resolution of the case with the investigator.

It is typically unwise to attempt this on your own since during the course of the "negotiations", you may make harmful admissions that will later be used against you should the case be referred to the prosecutor. You should understand that these cases are typically going on the prosecutor and the investigation is purely for purposes of building the case against you. You do not want to contribute to the evidence against you by making ill-advised statements to the investigator.

If you are contacted by an investigator concerning possible criminal charges against you, you would be wise to contact an attorney. If you cannot afford an attorney, then you should politely decline to give a statement to the investigator. You should make it clear to the investigator that you do not want to speak with the investigator and make it clear that any statements if any will be made through an attorney which eventually you will have you private counsel or the public defender's office.

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

When the police contact you for an interview, you need to understand the seriousness of your situation. The situation can be extremely stressful even when you know you are innocent of any wrongdoing. Many innocent people are charged with crimes every day. Those that have committed a criminal act will often make their situation worse through their statements. Worse yet, the accused whether guiltily or innocent will often provide the pivotal evidence against them.

Police investigators are masterful interviewers. Their sole purpose is to build full-proof criminal cases for referral to the district attorney. They are judged by their success in achieving this goal. Most take great pride in their effectiveness in building cases. Their success often turns on their interviewing skills, and their ability to extract confessions or other damaging statements against the accused.

The investigators will use a variety of interviewing or questioning tactics to get you to make damaging statements. These tactics are beyond the scope of this article but suffice it to say that speaking to the police without an attorney is rarely if ever in your best interests. You may make statements that you could not possibly anticipate could be used against you.

You do not have to talk to the police. You have the right to remain silent. Your 5th Amendment right against self-incriminations is among the most important rights that you have in criminal case. This right applies at every state of a criminal case from the criminal investigation all the way through trial. You should exercise this right.

The only thing that can hurt you more than giving damaging statements is giving false statements. Giving false statements to an investigator is itself a very serious crime punishable by imprisonment. A false statement may even be made inadvertently and these too may make a bad situation much much worse. Exercise your 5th Amendment right and decline to give a statement. To do otherwise poses too many risks.

Not surprisingly, people accused or suspected of a crime, believe that cooperating with the police will somehow help their case. Police and prosecutors pursue nice folks just as aggressively as they do the rude. Do not make the mistake of believing the investigator when he or she tells you that they are there to help clear things up, and that they can help you if you just make their job easier. You soon feel the acute sense of betrayal when you find the cop is not your friend, and is instead sitting before the jury testifying against you. Much of the basis of this testimony will be taken from your own statements.

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