Albuquerque Criminal Lawyer Blog

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures without a warrant supported by probable cause. However, the U.S. Supreme Court recently held in Florence v. Board of Chosen Freeholders of County of Burlington that routine comprehensive strip-searches before any arrestee is admitted into the general prison population were constitutional regardless of the arrestee's particular offense or criminal history.

The underlying facts in Florence involved a Defendant arrested for a minor, non-violent offense. Upon arrest and before being introduced into the jail's general population, the Defendant was subjected to the standard inmate intake procedures employed by Burlington County jails.

The procedures employed by the jail included requiring arrestees to shower with a delousing agent and submitting to visual bodily inspection for injuries, scars, marks, gang tattoos, and contraband. Inspection included instructing arrestees to open their mouth, lift their tongue, hold out their arms, lift their genitals, etc. The procedures apply to all arrestees entering the general prison population regardless of offense, behavior, criminal history, or demeanor.

The Defendant argued that this kind of search was a violation of an individual's Fourth and Fourteenth Amendment privacy rights if the corrections officers did not have reason to suspect the particular inmate of concealing contraband, drugs, or weapons.

The Supreme Court disagreed, holding that forcing corrections officers to make a judgment call of the kind placed the entire prison population at risk. On the other hand, the Court held that a uniform policy struck the correct balance between the privacy rights of inmates and the security interests of the prison.

The Court explained that maintaining safety and order in prisons required a particular expertise and experience that a court of law did not possess. In situations where a regulation impinges on the constitutional rights of inmates, courts should defer to the judgment of prison officials if the regulation "is reasonably related to legitimate penological interests." In other words, unless there is evidence that the prison officials have exaggerated their response to the situation, regulations of this kind should be upheld.

To come to this determination, the Court weighed the legitimate interest of prison officials in ensuring safety and order in their institution against the privacy interests of individuals arrested for minor, non-violent offenses.

In the opinion of the Court, jails and prisons have a significant interest in performing a comprehensive strip search of every inmate that comes into contact with the general prison population to prevent the spread of disease, identify the need for immediate medical attention, identify gang members, and detect and deter contraband including drugs and weapons. Considering the information available to officers about the arrestee and the time constraints involved at intake, conducting a less invasive search on certain types of detainees would be unworkable.

The Court cited evidence that the seriousness of an offense is not a good predictor of whether a person is likely to possess contraband or be a dangerous criminal. Additionally, the court determined that it would cause serious difficulties in implementation for prison officials to classify arrestees by their current and prior offenses before an intake search. In effect, it would place prison officers in the position of having to make a legal constitutional determination during the brief intake process with the little information available to them at the time. This would in turn create a larger risk for the entire jail population because officers would be less inclined to conduct thorough searches in debatable cases in order to avoid liability.

Balancing this significant interest of prisons in maintaining order and safety with the privacy interests of inmates, the Court held that uniform comprehensive strip-searches before any arrestee is admitted into the general prison population is not contrary to an individual's Fourth Amendment privacy rights. Considering the risks and logistical problems involved, the Court found this to be true regardless of the severity and nature of the offense or the arrestee's demeanor.

It remains to be seen how this will play out in the jails across the country. It takes little imagination to predict the many abuses that will follow this opinion. Many may view this as a strike against crime. However, one might pause to consider that strip searches of harden gangsters really has no bearing or relationship at all to a strip search of a young woman or man suspected of shoplifting or even a young mother of 3 picked up on warrants for traffic violations.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal.

The time limits come up in a variety of ways from the speedy trial rule to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the New Mexico Court of Appeals ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence.

The underlying case in State v. Leticia T. involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence.

Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence.

In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms."

According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice.

In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code.

To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.

The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the New Mexico Supreme Court can write or rewrite rules of court procedure.

The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner.

The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by criminal defense attorneys. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.

Collins & Collins, P.C.
Albuquerque Attorneys

The U.S. criminal system has largely become a system of pleas. According to the Department of Justice, 98% of federal convictions and 94% of state convictions are the result of guilty pleas, with a large part of these arising from plea bargains between the prosecution and defendant. Consequently, the Supreme Court of the U.S. has extended the Sixth Amendment right to counsel to the plea bargain process. In a recent case, Lafler v. Cooper, the Court addressed the right to counsel in the context of pleas that are rejected by a defendant on the mistaken advice of their attorney.

The Defendant in Lafler v. Cooper was charged with assault with the intent to murder and three additional offenses. In exchange for a guilty plea, the prosecution offered to recommend a 51-to-85 month sentence for two of the charges and dismiss the other two. The defendant rejected the offer on the advice of his attorney that the State would not be able to establish his intent to murder the Victim because Defendant shot the Victim below the waist. The Defendant was subsequently found guilty and sentenced to a mandatory minimum of 185-to-360 months.

The Sixth Amendment to the U.S. Constitution guarantees the accused in all criminal trials the effective assistance of counsel. The right to effective assistance of counsel applies to all "critical stages" in a criminal proceeding. Critical stages include arraignment, post indictment line-ups, post indictment interrogation, entering a plea of guilty, and the plea bargaining process.

To analyze whether the ineffective assistance rises to a Sixth Amendment violation, courts must follow a two-part test set out in Strickland v. Washington. Under the Strickland test, a defendant must show that (1) counsel's advice fell below an objective standard of reasonableness, and (2) but for counsel's ineffective advice, the outcome of the case would have been different.

Adapting the Strickland standard to cases in which an offer is rejected due to ineffective advice, the Court announced a new test to prove the second Strickland prong. In cases like this one, once the defendant has proved that counsel offered ineffective advice, a defendant must also prove that but for the advice there is a reasonable probability that (1) the plea offer would have been presented to the court, (2) that the court would have accepted the terms, and (3) that the sentence, conviction, or both would have been less severe under the offer's terms than under the actual judgment or sentence that resulted.

Having established both parts of the Strickland test as modified in this case, the Court went on to address the type of remedy that should be available to a defendant. The Court stated that while the remedy "must neutralize the taint" of the Sixth Amendment violation, it must not give the defendant a bonus or waste the resources invested by the state in prosecuting the case.

To this end, the Court announced that in cases like this, there are several remedies that a court may choose from depending on the particular facts. If the only difference between having accepted and rejected the plea involves sentencing, the court must have an evidentiary hearing where it is determined whether there is a reasonable probability that defendant would have accepted the plea offer. If the court finds the defendant would have taken the plea, it can decide whether to grant the terms of the plea, the sentencing at trial, or a different sentence.

On the other hand, there may be other instances where this remedy would not be sufficient. In cases where the plea offer dismissed counts for which the defendant was later convicted at trial or where there are mandatory sentencing guidelines, the Court held that the remedy might require the prosecution to reoffer the plea. Once the plea is offered again, the court may choose to accept the plea and vacate the conviction, or leave the conviction as-is.

As such, the outcome will depend on the circumstance of each case, and may in large part be dependent upon the particular trial judge. The dissent argued that the case would open a floodgate of challenges. This remains to be seen but rest assured the latitude left the judge in deciding what to do with the defective plea leaves open enormous room for further dispute.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal.

The time limits come up in a variety of ways from the speedy trial rule to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the New Mexico Court of Appeals ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence.

The underlying case in State v. Leticia T. involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence.

Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence.

In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms."

According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice.

In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code.

To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.

The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the New Mexico Supreme Court can write or rewrite rules of court procedure.

The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner.

The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by criminal defense attorneys. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.

Collins & Collins, P.C.
Albuquerque Attorneys

The juvenile criminal process in New Mexico differs in several ways from the adult process. In some ways juveniles are granted more favorable rights than adults, including such procedural an due process protections as the guarantee of a speedy trial. In State v. Castro, the New Mexico Court of Appeals recently discussed the effect of a no bill on dismissal and on speedy trial time limits.

A no bill is a determination by a grand jury that there is not sufficient evidence to return an indictment against an individual. In some courts around the state, a preliminary hearing is used instead of the grand jury process. The juvenile process typically more closely follows the preliminary hearing process in adult felony proceedings. However, in very serious felony cases, the juvenile may be charged as a youthful offender which in some counties will result in a grand jury. Other smaller counties will generally stick with the preliminary hearing process.

In New Mexico juvenile court, a delinquency petition sets forth the charges against the child in much the same way that a criminal complaint operates in adult court. Once the criminal process begins against a child in custody, the Children's Court Rules sets a 30-day time limit within which an adjudicatory hearing must begin. An adjudicatory hearing is one where a judge decides whether there is probably cause to believe the charges against the child have some factual basis, like a preliminary hearing in adult court.

Under the Children's Court Rules, the time for the adjudicatory hearing may be extended by no more than 60 days. If the time limits are not complied with, the court may dismiss the case with prejudice. When a case is dismissed with prejudice, the defendant cannot be recharged.

In State v. Castro, the State filed a delinquency petition against the defendant child chargin him as a youthful offender. The defendant child was served while in custody, triggering the 30-day time limit to commence an adjudicatory hearing. The State presented the grand jury with a list of all the delinquent acts contained in the delinquency petition. The grand jury, however, returned a no bill, meaning that it did not find probable cause to charge the Defendant.

The court did not hold an adjudicatory hearing within the 30-day limit, but instead held a hearing to entertain a motion from the State requesting an extension and a motion from the Defendant to deny the extension. At the hearing, the court dismissed the delinquency petition with prejudice for failure to comply with the 30-day time limit.

On appeal, the New Mexico Court of Appeals found that the return of a no-bill from the grand jury operated as a dismissal of all the charges against the defendant without prejudice, meaning that the State is free to re-charge the defendant with the same crimes. Since the return of the no-bill operated as a dismissal, the Court continued, there were no pending charges against the Defendant at the time of the motion hearing. Therefore, the 30-day time limit was not applicable, and the lower court lacked the authority to dismiss the case with prejudice.

What the holding in this case comes down to is that when a grand jury returns a no bill, even though the case is dismissed and the charges are no longer pending against the Defendant, the State is free to re-file charges against the Defendant for the same offense once it has gathered more evidence.

The time limits were put in place so that once the State begins the criminal process against an individual, the accused is guaranteed a speedy trial. This ensures that the State will gather necessary evidence before it files charges and that citizens will not be unnecessarily harassed. However, it seems that this ruling effectively stops the clock in favor of the State, allowing it to charge an individual again if it did not achieve its goals the first time around.

As one might gather from reading the above, this is a complex process and one would be wise to seek the counsel of a criminal defense attorney from the outset. If you cannot afford a private attorney, there many very capable public offenders that are there to assist you.

Collins & Collins, P.C.
Albuquerque Attorneys

Travel restrictions are a standard condition of release in criminal cases. Travel restrictions are often imposed on defendants even in minor misdemeanor cases. These restrictions are often routinely set as a condition of release even when there is no need for them. In some cases, restrictions on travel can have very harmful and unnecessary consequences for the defendant and his or her family.

It is very important to address travel restrictions at the earliest opportunity which may be at the first appearance or arraignment depending upon the circumstances. It is also very important to inform your attorney if travel restrictions will pose problems. These problems can arise in a variety of ways.

Job duties and family duties are the most common basis for modifying the conditions of release to lessen travel restrictions. Many New Mexicans must travel outside the restricted areas for a variety of job and family related reasons.

The travel restrictions often limit travel to the county of the defendant's residence. Sometimes, the travel restrictions will be less strict allowing travel to adjacent counties or even the State of New Mexico as a whole. Travel limitations which restrict travel to the county of residence or adjacent counties can cause enormous work and family related problems.

Because New Mexico is fairly spread out, people often work in counties other than where they reside. In addition, kids often go to school, have doctor's appointments, daycare, family support structures and so on outside the county of residence or even beyond adjacent counties. In addition, there are many defendants that must travel outside New Mexico for work.

Other issues can arise as well such as the need to care for sick parents or other family members that are outside the county or even the state. There may also be training and education requirements that require travel. In short, there are countless reasons a defendant might be required to travel outside his or her county or New Mexico.

Travel restrictions can cause severe burdens on the defendant and the family. At worst, the defendant could lose his or her job or the kids cannot get to school on time or perhaps at all due to the inability to travel. At best, unnecessary travel restrictions are a burden that serve neither the alleged victim or the public.

Depending upon the circumstances, the nature of the charges, the defendants criminal history, the defendant's record of attending all required hearings and so on, many judges will entertain modifications to the travel restrictions to minimize harmful and unnecessary burdens on the defendant and his or her family.

Work and family duties will be considered carefully by most judges as it is clearly to the benefit of none for the defendant to lose his job, the family to lose financial resources, or the family to suffer unnecessary burdens and losses. On the other hand, judges are less likely to entertain vacation and recreational travel though in some cases even these may be accommodated so long as the prosecutor does not oppose.

The most important thing to take from this is that the court needs to know the burdens that travel restrictions will cause the defendant. This means informing your attorney if you have one, or telling the court directly if you do not. Otherwise, the conditions are imposed as a matter of course. Once in place, it is much harder to get them modified and will require a motion and likely a hearing with the defendant present in court.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of State v. Trevizo addressed the statute of limitations on first time DWI and reckless driving in New Mexico. The court concluded both first time DWI and reckless driving are petty misdemeanors under New Mexico law and therefore subject to a one year statute of limitations.

The facts are pretty straightforward. The defendant was arrested on October 13, 2005. The criminal complaint for DWI and reckless driving was not filed until April 12, 2007, one day short of 18 months from the date of arrest.

The defendant filed a motion to dismiss in Albuquerque Metropolitan Court for violation for one year statute of limitations on petty misdemeanors. The motion was denied and the defendant was convicted on both counts. The defendant appealed to District Court which reversed the Metro Court decision. The State then appealed the District Court ruling.

The relevant statutes as set forth by the Court of Appeals provide the following statute of limitations:

C. for a misdemeanor, within two years from the time the crime was committed; D. for a petty misdemeanor, within one year from the time the crime was committed; G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed.

The State argued under paragraph C, D and G of NMSA §30-1-8 (now paragraphs C, D & H under 2009 Amendments) resulted in either a 2 or 3 year statute of limitations. The State argued that because the offenses were in the MVD code and not the criminal code, they should be covered by the catchall 3 year provision in paragraph G. In the alternative, the State argued that because the MVD code stated that all MVD code violations were classified as misdemeanors in the absence of contrary language in the code.

The Court of Appeals disagreed pointing out a number of problems with the State's position. The Court noted the absurdity of placing all MVD violations under the 3 year statute of limitations by virtue of the fact that they fall outside the criminal code. The result would be that not only would first time DWI and reckless driving be covered by the 3 year statute, so too would "speeding violations, parking violations, failure to signal, following too closely, and other traffic violations." The result would be that these petty traffic offenses would carry limitations period equal to that to serious felonies.

After a thorough analysis of the case-law and statutes, the Court concluded that the classification of a crime should be determined by the possible penalties. In doing so, the Court also addressed the State's position regarding the classification of all MVD violations not specifically delineated in the code.

Granted the MVD code does have some contradictory language. Section 66-8-7(B) of the Motor Vehicle Code provides "Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both." Thus the MVD sentencing guidelines are consistent with sentencing for a petty misdemeanor despite the language suggesting that the offenses should be classified as misdemeanors.

Consistent with the possible sentencing of only 90 days, the Court concluded that both DWI first offense and reckless driving must be classified as a petty misdemeanor and therefore subject to the one year statute of limitation. For those facing dated DWI charges, keep in mind that the ruling is limited to first time DWI and reckless driving. Repeat DWI offenders face much longer sentences which would bring them under the 2 year misdemeanor statute of limitation or in 4th or subsequent DWI offenses, the felony limitations period.

Due to the inconsistency in the MVD code language, and the seriousness with which DWI is treated in New Mexico, it is likely that this case will be appealed to the New Mexico Supreme Court. In addition or in the alternative, the legislature may address the issue in the next session to lengthen the statute of limitations. As such, if you are faced with a situation like this, be sure to consult with a DWI attorney to identify the limitations period on your case.

Collins & Collins, P.C.
Albuquerque Attorneys

Because computers store such a large volume and variety of documents, a police search and seizure of your computer during is often a far greater intrusion on your privacy than a normal search would be. Computers can hold anything from banking records to e-mails to text documents to photos. Technology is advancing at an astounding rate, and hard drives can now store enough data to fill a warehouse.

A warrant to search your house for specific evidence doesn't give police carte blanche to search every nook and cranny for evidence of unrelated crimes. For example, a warrant to search for illegal firearms doesn't allow police to read your financial documents for evidence of tax evasion. Nor does a warrant to search your computer for specific evidence give police the right to open and examine every file on your hard drive.

This issue is still in debate, so you should consult with an Albuquerque criminal attorney with up-to-date knowledge on the latest case law, but here are some of the main arguments your attorney may wish to present that a computer search was improper.

Police can do searches for specific keywords, and computer forensic experts have advanced tools that can filter files based on different criteria. They do not need to open each file and inspect its contents to look for relevant evidence as they might do when looking through a file cabinet.

Imagine that a search warrant specifies that police can search your computer for e-mails relating to suspected fraud. E-mails stored on your computer have a identifiable file extensions. Police should not review image files or other unrelated file extensions since this would exceed the scope of the warrant. On occasion, law enforcement will stumble on to evidence of other crimes as they unlawfully peruse the contents of a suspect's computer. In cases where the scope of the warrant has been exceeded, a criminal defendant may want to challenge the scope of the search. A search may be unlawful under the 4th Amendment if it exceeds to legal scope of the warrant meriting the suppression of any illegally gathered evidence.

Because these issues are complex both legally and technologically, it may be necessary to obtain expert computer forensics assistance in figuring out exactly what transpired during the search of your computer. In order to determine the scope and legality of a search, it may be necessary to retrace the computer search. This is not a simple process requiring expert assistance which is well beyond the aptitude of most criminal defense attorneys (including this one).

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court case of State v. Guthrie addresses the rights of defendants in probation violation hearings to due process and confrontation of the State's witnesses. The court determined that the rights of probationers in probation violation hearings were measured on a "sliding scale with extremes at either end and much balancing and weighing of competing interests in between."

The facts of the Guthrie case are pretty straightforward. The defendant failed to complete a residential treatment program required under the terms of his probation. The probation officer that filed the probation violation report had been relocated and was unable to attend the hearing. In her place, her supervisor testified to the contents for her report and the contents of the probation file. The supervisor had no direct knowledge of the probation violation and had never met or spoken with the defendant or the residential treatment facility.

The defendant did not dispute that he had not completed treatment and it was taken as an undisputed fact. The defendant's objections at the probation hearing were strictly related to the violation of his right to confront and cross examine his probation officer. The district court found the evidence of violation sufficient for the revocation of defendant's probation. The defendant filed an appeal arguing a violation of due process and his right to confrontation of witnesses.

The Court cited the U.S. Supreme Court Morrissey v. Brewer for the proposition that probation revocation hearings are rather informal depriving a defendant not of an absolute liberty but only a conditional liberty under the terms of probation. Because revocation of probation addresses on conditional liberties, the Court reasoned that the full spectrum of criminal trial rights do not apply.

Under Morrissey, live testimony of probation officers is not always required. Instead, the court may rely on a variety of hearsay evidence such as affidavits, depositions, and documentary evidence. The Court stated further that it had no intention of preventing the State "from developing other creative solutions" suggesting ever greater latitude for courts and prosecutors in probation violation settings.

In short, the Court in Guthrie found that the live testimony of the defendant's probation officer was not necessary. The Court also emphasized that whether or not defendant completed treatment was a simple factual determination not susceptible to subjective interpretation. The failure of the defendant to offer any rebuttal evidence to suggest otherwise weighed heavily on the Court's ruling. The Court suggested that due process and the right to confrontation might require live testimony where the violation of probation was in dispute and/or relied on more subjective criteria.

The specific findings of the case are not so troubling as the broad parameters the Court set forth for probation violations. As it stands, the due process and confrontation rights of probationers are tenuous at best. After all, a sliding scale of justice with creative prosecution is not where a defendant would like to be.

Collins & Collins, P.C.
Albuquerque Attorneys

Rule 5-503 of New Mexico District Court Rules of Criminal Procedure requires that any State witnesses be made available for pretrial interview by the defense. There are comparable rules for both Metropolitan Court and Magistrate Court. The New Mexico Court of Appeals case of State v. Curtis Harper lays down some guidelines on the application of the Rule. In so doing, it also added a significant level of confusion.

The Harper case involved charges of criminal sexual penetration of a minor. Among the State's witnesses was an expert psychologist. The State failed to make the expert available for interview by the defense despite several direct orders from the district court judge to do so. The State's reason for refusing the interview was that the defense had failed to pay the doctor's expert witness fees. The district court judge determined that Rule 5-503 overrode any such considerations and ultimately suppressed the testimony of the State's expert. The State appealed the suppression of the expert.

The Court of Appeals ruled that the State did have duty to provide the witness for interview. The Court ruled that the requirements of Rule 5-503 were unconditional. The Court ruled that once the State undertakes the duty to provide interviews, those interviews must be provided. The Court suggested that the State obtains some advantage by taking on responsibility for the interviews since the State is then present and can hear the questions asked by the defense and prepare accordingly. The State cannot both insist on participation in the pretrial interview process and refuse to make its witnesses available.

The Court specifically addressed the State's position that an expert could be withheld from the defense until expert witness fees were paid. The Court stated that this position was unacceptable and that the prosecutor could not stand as a "preemptive guarantor of the fee." The Court then stated that any prosecutor engaging in this conduct would see its case suffer the consequences.

So far so good for the defendant's 6th Amendment rights to confrontation of witnesses. It appeared the Court was moving toward a ruling that would disallow hoisting the expense of the State's experts on to the defense and that such behavior would result in the suppression of the expert's testimony. Unfortunately, the Court declined to do either.

Instead, the Court suggested that the defense could and would in fact be compelled to pay expert witness fees in order to interview the State's expert witnesses in a criminal case. In the end, the Court also stated that the failure of the State to provide the interviews in direct violation of the district court's orders to do so was not so prejudicial to the defendant as to merit suppression.

In the end, the whole judicial exercise was rendered rather meaningless. The Court in essence stated that the rules requiring the State to make witnesses available to the defense were unconditional; that an expert could not be withheld for failure to pay fees; and that the State's case would suffer in the event that it failed to abide by the rule.

After saying all this, the Court then ruled such behavior would not result in suppression. The ruling is quite puzzling as it is hard to see how the State's case has suffered despite clear violation of both the rules of procedure and the Court's own dictates. The ruling in fact simply added confusion to an already confusing area of criminal procedure.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals has drawn strict parameters around appeals of grand jury indictments. In so doing, it appears that the reach of Jones v. Murdoch has been sharply curtailed.

In State v. Yaw, the defendants through their attorneys issued a "Murdoch letter" to the prosecutor requested certain exculpatory information be presented to the grand jury under Jones v. Murdoch. The prosecutor did not comply with the request of the defendant.

Under Jones v. Murdoch, a hearing was held by the district court judge to determine whether the evidence should be presented. The district court judge determined that the evidence need not be presented to the grand jury.

The grand jury hearing was held. The proposed exculpatory evidence was not presented. The defendants were indicted. Following the indictment, the defendants appealed.

State v. Yaw sets forth some interesting and important guidelines regarding the operation and effect of Jones v. Murdoch. The Court of Appeals drew a distinction between appeals of grand jury process and reviews of grand jury evidence.

The Court asserted that violations of grand jury process are always appealable citing such improprieties as improper persons in the grand jury room or failure to instruct on the elements of the offense. To the contrary, the Court ruled that evidentiary findings by the grand jury would not be reviewed.

This seems to be a rather odd ruling in light of Jones v. Murdoch since by definition, failure to present exculpatory evidence suggests a review of the evidence. To resolve this apparent contradiction, the Court distinguished between pre-indictment appeal and post indictment appeal then basically rules their are no rights to appeal on either.

Interestingly, the Court stated that Jones v. Murdoch provided for no appeal of the district court's ruling except under extreme circumstances on the filing of an extraordinary writ. These cases appear from the Court's ruling to be limited to cases of prosecutorial misconduct. The Court stated that the defendant must show bad faith on the part of the prosecutor in its failure to present the exculpatory evidence. Unfortunately, the Court failed to define precisely what it meant by bad faith or prosecutorial misconduct.

In light of the great deference provided to the district court in ruling on the admission of Murdoch letter evidence, the hurdle seems almost insurmountable. For all practical purposes, except in the most extreme cases, the ruling of the district court is final under State v. Yaw. Hopefully, the case will be taken up by the New Mexico Supreme Court. As it stands under Yaw, defendants are left with pretty no remedy for violations of their grand jury rights under Jones v. Murdoch.

A Nolle Prosequi or simply Nolle is considered a good outcome in a criminal case. However, this must be qualified since the Nolle is not necessarily the end of the case.

A Nolle is usually entered without prejudice. This means that the district attorney or prosecutor can re-file the charges at a later date. The Nolle will not generally toll the speedy trial rule which at the metropolitan and magistrate court levels is construed to be six months. As such, the prosecutor must re-file within the six month period.

Nolle's are typically entered when the prosecutor has been unable to make the state's witnesses available for pre-trial interview by the defense. Likewise, the prosecutor may be unable to get the state's witnesses to trial. This situation is not uncommon. It may occur in DWI cases when the officers are not available for interview and or trial. The incidence of dismissal in DWI cases has gone down significantly since the Albuquerque Police Department discontinued the DWI team concept. In the past, there would typically be two officers involved, one that made the traffic stop and another DWI unit officer who conducted the DWI investigation. The team concept required both officers presence for pre-trial interviews and for trial. If either was unavailable, the case would be dismissed.

On other occasions, critical evidence may be missing or otherwise unavailable such as police reports, witness statements, lab or test results and so on. This last situation is fairly rare but does occur on occasion. A missing police report is hard for the prosecutor to overcome. Missing witness statements may provide grounds for a dismissal or at least suppression of certain evidence. Missing lab or test results in some cases may be insurmountable for the prosecution. However, in DWI cases, missing breath or blood alcohol scores are a mere nuisance to the prosecution due to the impaired to the slightest degree standard. The breath score is simply unnecessary for a conviction if there is any admission of alcohol.

Though the Nolle is never a bad thing, it likewise is not a permanent thing until the six month speedy trial run has run. Often, upon entering a Nolle, the prosecutor will be able to collect missing evidence and locate missing witnesses. If done in a timely manner, the prosecutor can then re-file. There are those instances where the case is re-filed at the last minute just before the speedy trial rule runs. There are some judges that will not allow this practice due to the severely prejudicial effect it has on defendants. There are others that will let it slide. Unfortunately, short of appeal, the outcome may rest entirely on pure luck of the draw.

Collins & Collins, P.C.
Albuquerque Attorneys

The first and among the most serious consequences a person arrested for DWI/DUI will face is the revocation of their driving privileges through Motor Vehicles Division (MVD). In fact, a DWI driver has only 10 days from the date of arrest to send in a Request for License Revocation Hearing to MVD. Failure to send in the request results in automatic revocation.

There is much confusion with DWI drivers about the jurisdictional issues between the MVD revocation and the criminal DWI proceeding. In fact, the two are completely separate. In other words, you can win at the MVD hearing and still lose at trial in the criminal proceeding. Likewise, you can lose at the MVD hearing and win at trial.

Both MVD and the criminal court have the authority to revoke the DWI offender's driving privileges. The length of the revocation depends on the number of DWI convictions and whether the charge was aggravated DWI.

In addition to the overlapping jurisdiction over driving privileges, the period of revocation may be different between MVD and the criminal court. For example, on a first time simple DWI (non-aggravated DWI), the revocation by MVD is 6 months. Upon conviction in the criminal proceeding, there is a mandatory one year interlock requirement.

With both the MVD revocation and the interlock requirement imposed as a result of the criminal conviction, driving without an interlock and an interlock license results in criminal charges for driving on a revoked license. A conviction for driving on a revoked license carries up to one year in jail.

The criminal court may impose he revocation from the time of the conviction. The MVD hearing often occurs much earlier than the criminal trial since it must be set by law within 90 days of the arrest. The court may, but does not have to, allow for credit for the MVD interlock period. Therefore, the actual revocation and interlock period may stretch beyond one year even on a simple first DWI.

Finally, the burdens of proof are different between the two hearings. The recent case of Glenn v. MVD has significantly lessened the burdens at the MVD hearing. Under the Glenn case, the state need not even prove the stop was legal. As a result of this case, the MVD hearing is even more formality than before since the State need only show the hearing was held within 90 days of arrest and the driver blew .08 or above or refused to blow.

The burdens are no better in the criminal proceeding. The State need only show (argue) that the driver's ability to drive was "impaired to the slightest degree" by alcohol. This is really no standard at all. On the upside, the State is supposed to show that the driver was legally stopped. This again is a fairly low burden since a reason can always almost always be found for pulling over a driver.

The bottom line is that a DWI seriously jeopardizes driving privileges. The driver and his or her attorney must run a gauntlet of hearings where the burdens are seriously stacked against them. In fact, it is pretty rare that a DWI arrest will not result in the revocation of driving privileges in some fashion unless the officers simply do not show up to fight.

And the moral to the story is "Don't Drink and Drive." It is not worth it.

Collins & Collins, P.C.
Albuquerque Attorneys

Under New Mexico law, the courts maintain jurisdiction over criminal cases for the duration of the probationary period. It was made clear in the New Mexico Court of Appeals case of State v. Jose Alfredo Ordunez that once the probationary period has lapsed, the court loses jurisdiction over the defendant.

The Ordunez case held that any action by the state for violations of probation must be filed within the probationary period. As such, once the probationary period has lapsed, the State is barred from filing for a revocation of probation. In fact, this is what occurred in Ordunez. The State failed to file for revocation of probation prior to the end of the defendant's probationary period thereby defeating the court's jurisdiction.

Though not pivotal to the outcome of the case, the court also addressed the issue of tolling of the jurisdictional limits when a defendant absconds from justice. In other words, the court addressed what happens when the defendant disappears following a probation violation for which revocation could be filed.

As an aside, disappearing while on probation is typically itself a violation of probation. More often, a separate violation of probation precipitates the disappearance due to defendant's knowledge of the coming probation revocation and possible incarceration. There are defendants who mistakenly believe that if they disappear long enough for their probation to end, they are somehow off the hook.

The Court in Ordunez cited both statute and case law to the contrary. NMSA §31-21-15(C) states:

"if it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that he has violated the provisions of his release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation."

It is clear from the language of the statute as well as the Court's language in Ordunez among other cases that "a probationer cannot defeat the district court's jurisdiction merely by remaining a fugitive from justice until he probation period has run."

In short, as unpleasant as it may be, a violation of probation must be dealt with by a defendant. In fact, as many have found, the consequences of running from the violation are often more serious than the violation itself.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of criminal charges in New Mexico, a conditional discharge is often a very positive outcome. A conditional discharge will result in the eventual dismissal of the charges.

A conditional discharge allows for the disposition of the criminal charges without an adjudication of guilt. This means that the defendant is never found guilty of any crime so long as all conditions of probation are met.

However, to get a conditional discharge, the defendant must enter a plea of guilty or no-contest. In the event of a violation of the terms of the conditional discharge, the plea then turns into a conviction.

The conditional discharge does not wipe the record clean. Though there is no conviction, there will always remain a record of the charges and the proceedings. As such, anyone doing a background check on the defendant will see that the charges were filed and dismissed.

Because there was no conviction, many defendants believe that the record should be expunged. The mere fact of the charges can have very serious consequences in the future. Unfortunately, despite the fact of the dismissal, the New Mexico Courts have held consistently the right to expungement to be very limited.

The issue came up most recently in State v. C.L. State v. C.L. addressed in depth the right to an expungement. In State v. C.L., a showing of adverse employment consequences due to the court record was expressly held to be insufficient for an expungement. Under the New Mexico Court of Appeals ruling in C.L., an expungement is possible only in case of a finding of unlawful arrest or unlawful conviction.

Unfortunately, a conditional discharge meets neither of these criteria. The conditional discharge is meant as a second chance of sorts. However, a conditional discharge will not completely wipe the record clean. This is possible only through expungement which is difficult and rare to put it mildly.

Collins & Collins, P.C.
Albuquerque Attorneys