Albuquerque Criminal Lawyer Blog

In New Mexico there are several laws that protect victims from domestic violence crimes. These laws set forth specific penalties for certain violent behaviors. Generally, under New Mexico law a crime may be considered a domestic violence crime if it includes a pattern of controlling behavior directed at an intimate partner or that person's property, family members, animals, or associates.

The primary laws most commonly used to address domestic violence in New Mexico include:

1. Family Violence Protection Act,
2. Crimes Against Household Members Act, and
3. Harassment and Stalking Act.

The New Mexico Family Violence Protection Act creates a cause of action that allows a victim of domestic violence to obtain an order of protection against the household member who committed the abuse. The order of protection prohibits the restrained party from having any contact with the victim. Violation of an order of protection is a misdemeanor.

Crimes Against Household Members Act

The New Mexico Crimes Against Household Members Act creates the crimes of assault and battery when violence is committed against a "household member." Under this law a "household member" includes a spouse or former spouse, a family member including a relative or parent, and anyone with whom the abuser has a continuing personal relationship. It is not necessary that the people live together to be considered a "household member"

Potential criminal charges under this law include criminal charges for assault, aggravated assault, assault with intent to commit a violent felony, battery, and aggravated battery. While the criminal penalties available for these crimes are generally the same as the criminal penalties under the general assault and battery statutes, one reason to proceed under this act is that an officer is permitted to make an arrest without a warrant at the scene of a domestic disturbance if the officer has probable cause to believe that the abuser has committed an assault or battery against a household member.

The Harassment and Stalking Act

The New Mexico Harassment and Stalking Act is different from the Family Violence Protection Act and the Crimes Against Household Members Act in that the victim under this act does not have to be a family member or household member. Under the Harassment and Stalking Act harassment is defined as a pattern of conduct intended to annoy, alarm, or terrorize someone so as to cause a reasonable person to suffer substantial emotional distress. A conviction for harassment is a misdemeanor.

Stalking is defined as a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or threatened. Stalking is also a misdemeanor for the first offense but is a fourth degree felony for subsequent offenses.

One can also be convicted of aggravated stalking under the Harassment and Stalking Act if the stalker does any of the following:

1. Knowingly violates a temporary or permanent order of protection,
2. Violates a court order setting conditions of release and bond (i.e. No Contact Order),
3. Possesses a deadly weapon, or
4. Stalks a victim under the age of sixteen.

Domestic Violence is taken very seriously in New Mexico. The consequences can be severe and the penalties escalate rapidly with each subsequent offense. If you have been charged with domestic violence, it is important to contact an experienced criminal defense attorney right away to insure that your rights are fully protected.

Related Reading:
Collateral Consequences of Domestic Violence Findings Can be Worse than Criminal Penalties
Criminal v. Civil Domestic Violence Charges in New Mexico
Domestic Violence Early Intervention Programs in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The 4th Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. The New Mexico Children's Code further protects juveniles and sometimes expands their constitutional rights.

In a recent opinion involving juvenile criminal charges, however, the New Mexico Court of Appeals held that in relation to 4th Amendment searches and seizures, under the Children's Code minors have no greater rights than adults. Specifically, an officer is not required to advise a minor of his right to refuse consent to a search of his vehicle.

The underlying case in State v. Carlos A. involved a routine traffic stop for a non-functioning license plate light. The Defendant driver was seventeen years old at the time. When the officer pulled the Defendant over, he noticed a strong odor of marijuana and asked Defendant if he would consent to a search of his person.

The driver consented. Upon finding nothing suspicious from the search, the officer called for backup and when backup arrived asked Defendant whether he would consent to a search of his car. Defendant agreed to the search whereupon marijuana and other paraphernalia were found. The defendant was then placed under arrest and charges were brought against him. The time between the stop and the end of the automobile search was no more than ten minutes and the entire exchange was non-threatening and cordial at all times.

At trial, the Defendant filed a motion to suppress the evidence from the search of his car. The Defendant argued that his consent was involuntary because officers were required to inform him of his right to deny consent to the search due to his status as a minor under the New Mexico Children's Code. The district court and the New Mexico Court of Appeals both disagreed.

Under the 4th Amendment, any unreasonable search or seizure by government agents requires a search warrant unless there is a recognized exception. Consent is one of the exceptions to the warrant requirement. To demonstrate consent, the prosecution must show that under the totality of the circumstances, the consent was voluntary and not the product of intimidation or coercion.

To assess the totality of the circumstances, a court must evaluate all of the factors involved, including the particular situation of the person giving consent, the circumstances of the detention, and the behavior of the government agents requesting consent. One of the factors considered is whether the defendant was advised of his or her right to refuse consent. However, being advised of the right to refuse consent is only one factor to consider and not dispositive of the question of whether consent was voluntary under the totality of the circumstances analysis.

Having established that the 4th Amendment does not require a police officer to advise an adult of their right to refuse consent to a search, the Court of Appeals went on to analyze whether the New Mexico Children's Code required it when the person giving consent was a juvenile.

Under Section 32A-2-14(C) of the Children's Code any juvenile interrogated by police must first be advised of his or her rights. This provision basically mirrors the 5th Amendment right to remain silent and a warning that anything said will be used against them. However, the Court in this case refused to expand this protection to 4th Amendment searches and seizures making the distinction between a consensual search and a custodial interrogation.
Therefore, as the law in New Mexico stands, a juvenile's 4th Amendment rights are not violated if he or she is not advised of the right to refuse consent to a search if the consent was otherwise voluntary. While the fact that the juvenile was not made aware of their right to refuse consent will be a factor in determining whether the consent was voluntary, it is not dispositive. If, as in this case, the detention was brief, in public, and the officers showed no signs of intimidation, it is likely that consent will be deemed voluntary even if the juvenile was not advised of his right to refuse.

Each case is unique and requires individual analysis. Moreover, the case does nothing that would allow a nonconsensual search. In any case where the search was non-consensual or perhaps unknowing, it is important to raise these issues with your child's criminal defense attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not unusual for a person to be arrested but never charged. It is also not unusual to be arrested and charged, but not convicted. When either of these situations arises, among the first concerns is the effect that the arrest will have on future employment.

The case-law and the EEOC make clear that with few exceptions employers are prohibited from blanket discrimination on the basis of arrests records alone. Such discrimination would constitute a violation of Title VII of the Civil Rights Act of 1964. The reasoning behind this is clear.

It is has been well established that arrest records alone are not a reliable indicator that the person has actually committed a crime. In addition, and related to the first, it is clear also that discrimination based upon arrest records alone has a highly discriminatory impact on minorities, particularly blacks and Hispanics. As such, these practices are highly discouraged.

There are some exceptions to this prohibition. However, the exceptions are fairly narrow and the burdens are on the employer to prove a legitimate basis for using an arrest record to justify a hiring or other employment decision. The EEOC sets forth the business justification exception with a thorough discussion in its report, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964."

Though business justifications may justify consideration of arrests records in hiring or other employment decisions, the burden is on the employer to show that the practice is necessary for its business operations. The employer must both show that the arrest indicates culpability and that the basis for the arrest has some rational relationship to the employment position at issue. If either is missing, then an arrest alone cannot form the basis of an adverse employment decision.

In New Mexico, the second criterion is perhaps the most problematic since many jobs here require certain levels of security clearance. However, other jobs might pose problems as well such as cashiering, banking, bookkeeping, accounting or other such jobs where the arrest was for theft or other crimes of dishonesty. There are certainly many other situations where the arrest if indicative of guilt would fall within the second prong of the business justification exceptions.

Though consideration of arrest in employment decisions may fall within the exception, there remain limitations. First, and foremost, there cannot be a blanket policy of excluding employment for anyone with an arrest record. This would most certainly violate the law. Instead, the employer must make additional inquiries into the circumstances of the arrest. The employer must then determine that the arrest in fact indicates guilt and that guilt of such an offense has some bearing on job performance. The burden is on the employer to prove both these elements.

All this being said (i.e. employers cannot have a blanket policy against hiring those with arrest records, the burden is on the employer, the burden is high and so on) the problem for employees in this position is that it may be hard to prove. More to the point, it may be very expensive to prove which may make obtaining an attorney quite difficult in the absence of some very compelling circumstances.

Collins & Collins, P.C.
Albuquerque Attorneys

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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