Albuquerque Criminal Lawyer Blog

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

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

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

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

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

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

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

www.CollinsAttorneys.com

The New Mexico Supreme Court ruled in City of Las Cruces v. Rogers that the City of Las Cruces has no authority to regulate DWI/DUI on private property under the City's DWI/DUI Code. In order to so regulate drinking and driving on private property, the City would have to gain written consent from the property owner. In the alternative, the driver should be charged under the New Mexico DWI/DUI Statute which is customarily the case. The driver cannot be charged for DWI/DUI on private property under the City Code.

The facts of Rogers are remarkable. The defendant was in a parking lot of a convenience store where she had purchased cigarettes. The police officer had followed her into the parking lot on the suspicion that she had been drinking and driving. As the defendant was preparing to drive away, the officer stopped her while she was still in the parking lot. The officer administered field sobriety tests which Rogers failed. Consequently, she was arrested and charged with DWI/DUI.

The Municipal Court dismissed the DWI/DUI Complaint. The city appealed to District Court which ruled that pursuant to City of Rio Rancho v. Young, and Section NMSA §3-49-1(O), the City could not enforce its traffic code on private property absent a showing of express written consent by the owner of the property. The case wound its way up to the Supreme Court through the Court of Appeals which upheld the District Court ruling.

The New Mexico Supreme Court agreed with the lower court rulings again citing Young and NMSA §3-49-1(O). The Court made the distinction between violations of state statutes and municipal statutes. Las Cruces had failed to charge the defendant under the State statute NMSA 66-8-102. Instead, the defendant was charged under the city ordinance which the Court agreed could not be done without the written consent of the property owner.

Many of the Courts and Prosecutors around New Mexico, including Albuquerque and Rio Rancho have Pre Prosecution programs for certain felony offenders. These programs are restricted to first time non-violent, non-drug trafficking offenders.

If you are charged with a non-violent, non-trafficking felony offense, and you have no prior criminal history, you may be eligible for Pre Prosecution Probation. If you are accepted into the program, the charges against you are dismissed, and you are placed on probation for one to two years. These programs are very beneficial to both the offender and to the State. The program saves the offender from consequences of a felony conviction. The program saves the State the costs of prosecution, supervised probation or imprisonment of qualified first offenders.

The real hurdle to getting into the program for many is that the program requires an admission of guilt or responsibility for the charges. Many individuals have a very hard time with these admissions when they feel that they have been wrongfully accused. The decision is made more difficult by the fact that the admission can later be used against the individual if admission to the program is denied or if the person is expelled from the program for a violation of its terms.

Once admitted, the person must comply with all the conditions of the program including community service, full time employment or school, random drug testing, regular reporting to the probation officer, a prison tour, and payment of all probation costs and drug tests costs. A person faces expulsion from the program for violation of these terms. In addition, a person can be expelled for any felony charge, a charge of DWI/DUI or a charge of Domestic Violence.

Though the terms may seem harsh to some, they are far less severe than a conviction or regular probation. The benefit of escaping a felony conviction for most makes the program worth doing.

The New Mexico Supreme Court in State v. Ochoa clarified the rights of privacy in a car. The New Mexico constitution allows for New Mexico courts to expand on the rights against unlawful search & seizure afforded under federal law.

Under federal law, there is a lower expectation of privacy once a person enters into an automobile. The justification for the lower level of privacy in an automobile under federal law is that the inherent mobility of an automobile creates greater need for an immediate stop to prevent the loss of evidence.

New Mexico acknowledges the reasoning but rejects the conclusions of the U.S Supreme Court in Whren. Instead, Ochoa states that warrantless searches are per se unreasonable. The State bears the burden of proving the stop and the ensuing search were reasonable.

The Court in Ochoa explains that the greater protection from unreasonable search & seizure in an automobile is a distinct characteristic of the laws of New Mexico. Ochoa explicitly rejects the suggestion under Whren that a person's expectation of privacy is lessened in a car.

Finally, the court stated that though there are exceptions to the warrant requirement, the same standard requiring exigent circumstances to conduct a warrantless search are present in a car as in a person's home. Exigent circumstances justifying a warrantless search exist only where delay in obtaining a warrant will jeopardize the legitimate interests of law enforcement.

A mere hunch as present in Ochoa is simply not enough.

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.

The Supreme Court of California announced that the Supreme Court of California, the Courts of Appeal and the Superior Courts would be closing on the third Wednesday of each month. The court closures are the result of California's ongoing budget crisis.

It is estimated that this move will save the state $94.3 million for the State. The amount of projected cost savings suggests the huge costs of running a Court system on a daily basis. The closures will amount to only 12 days of closure per year, putting the daily costs at $7.86 million. These cutbacks will cause ever greater strain on an already burdened court system.

Though the Court system in New Mexico is a small fraction of the size of California's, the costs of the court system is enormous. In addition, the state's budget is only a small fraction of the size of California's. So in relative terms, New Mexico may be facing an even greater burden.

The New Mexico Courts have already begun throughout the state to cut back on the hours for administrative services such as the clerk's offices. The courtrooms have yet to be impacted but it seems that they will at some point.

Yet while the Courts are facing ever more challenging budgets, the practices in the criminal justice system have yet to respond to the looming crisis. Police and prosecutors continue to prosecute DWI/DUI cases that are below the legal limit. Police and prosecutors are regularly bringing cases at .04 to .06 breath alcohol scores, sometimes even below .04. There is a similar policy among some prosecutor's offices of relentlessly pursuing domestic violence actions even when there is a total lack of foundation or merit. These practices, in addition to being manifestly unjust, place a huge burden on the Courts and the taxpayers of New Mexico.

Perhaps the upside of the economic downturn will be that the police and prosecutors will be forced to more honestly and fairly evaluate the merits of their cases before burdening the Courts with frivolous criminal proceedings. Perhaps, police will be less enthusiastic about pursuing these cases when overtime pay is capped and there is no financial incentive to pursue these cases. Perhaps prosecutors will be less inclined to pursue these cases as their own budgets begin to shrink. Perhaps the Courts themselves will hold the prosecutors and police more accountable to the taxpayers and be quicker to dismiss meritless actions. We can hope.

Collins & Collins, P.C.
www.collinsattorneys.com

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

In the past, the federal government did not recognize medical marijuana laws in the 13 states that now have such laws. The result was that the federal government would prosecute aggressively those folks engaged in medical marijuana distribution despite the fact that their state allowed it. Attorney General, Eric Holder, quietly has announced that the federal government would no longer engage in these practices.

Instead, the federal government will now respect the laws of the states and will not preempt local law with federal drug policy. New Mexico and 13 other states have breathed a sigh of relief as their citizens can now rely on the law in their state.

New Mexico now has the first state-licensed medical marijuana farm and distributor. The law has been up and running for 2 years allowing medical marijuana in New Mexico. However, the state has moved cautiously awaiting the announcement of the new production and distribution program.

Despite its youth, the program has been hugely successful. The farm cannot keep up with demand. The farm is generating substantial revenue for the state helping to relieve the enormous budgetary strains that the state now faces. Yet the beat goes on with police and prosecutors continuing to prosecute simple possession of marijuana cases and possession of paraphernalia cases. Lives continue to be ruined through the criminal justice system as the State carves out a cottage industry in the production and sale of marijuana.

If you are charged with a crime and you are not a United States citizen, you could be facing some very serious immigration consequences. If fact, the immigration consequences could be much more serious than the criminal punishment.

On many occasions, a criminal attorney will fail to appropriately consider the immigration consequences of the criminal charges. Many times, the criminal attorney is surprised himself to hear of the severe consequences of seemingly trivial crimes. On still more occasions, the criminal attorney is able to work out would otherwise be a great plea for the client. The plea might even result in the ultimate dismissal of the case, yet the client is still facing deportation for the crime.

The law is fairly complex and common sense does you no good in this area of the law. For instance, in many cases where the chances at trial are not good for the client, an attorney will work out a conditional discharge or a deferred sentence. In each of these situations, the charges are eventually dismissed upon the completion of the terms of probation. Unfortunately, both these deals require that a defendant plead guilty to the charges before the plea will be accepted by the court. The plea of guilty despite the later dismissal is enough to trigger deportation for deportable offenses.

Even more surprising to many defendants, and many attorneys, is the fact that relatively trivial offenses, even petty misdemeanors can trigger deportation. This same result occurs even with residents that have been in the United States for decades, established businesses, purchased homes, raised families and had no other prior legal problems.

It is surprising to learn that a relatively minor charges can result in deportation while far more serious crimes have no immigration consequences at all. The immigration consequences depend on the classification of the crime. The classification of a crime as a crime of moral turpitude carries the most severe and seemingly unfair penalties.

Crimes of moral turpitude can have shocking immigration consequences. Instincts or general impressions of the seriousness of the crime are unreliable. A good and rather common example of a trivial crime classified as a crime of moral turpitude is petty larceny or shoplifting. Even petty shoplifting is a crime of dishonesty which carries the classification of crime of moral turpitude. This means you can be deported for conviction of a shoplifting. Not only that, you can be deported even if you are not technically convicted.

Due to the classification as a crime of moral turpitude, you may have the luxury of many possible common and otherwise favorable pleas. In many cases, a prosecutor would offer a variety of different plea options. Many of these would result in a dismissal of the charges. Unfortunately, a dismissal is not enough. Often the plea itself, in contemplation of an eventual dismissal, requires an admission of guilt to the shoplifting offense. Despite the ultimate dismissal, the admission of guilt alone creates a removable offense. This same outcome occurs in many other otherwise outstanding plea bargains.

There is a long list of crimes of moral turpitude. You must know from the outset if your crime is on that list of deportable offenses. If it is, then the entire defense strategy will change. Unfortunately, you may be forced to go to trial on a case that almost always plea if it involved a United States citizen.

To properly defend you, you must inform your attorney of your immigration status from the first moment you meet. Your citizenship may not be apparent, and the attorney may not think to ask. The defense strategy from the very beginning of your case should properly account for the immigration consequences. Failure to inform your attorney of your immigration status could seriously harm your future in the United States.

So what should you do are not a citizen of the United States and you are charged with a crime? You should inform your attorney of your immigration status the first time you speak. You should remind your attorney of your status throughout the process. Most importantly, you should insist that your attorney thoroughly consider the immigration consequences in the defense strategy and in consideration of any plea offers. If your matter is particularly confusing or complex, then you may need to enlist the services of both a criminal attorney and an immigration attorney.

Don't be in the position where you have won the battle in addressing the criminal charges, while losing the war and everything else you hold dear in this country when you are eventually deported.

Parrish Collins
Collins & Collins, P.C.
Albuquerque, New Mexico
www.collinsattorneys.com

Once a criminal investigation has been concluded, and a felony case has been referred to the prosecutor, the accused will receive a letter indicating that he or she is the target of a grand jury investigation. The letter is called a target letter. The target letter will indicate the date and time of the grand jury hearing.

In the past, the grand jury has been a mere procedural formality prior to the filing of felony charges. It was said that the grand jury would indict a ham sandwich. The prosecutor was able to pick and choose evidence as it saw fit often neglecting to present clearly and readily available exculpatory evidence. There were few if any procedural or evidentiary protections to insure a balanced presentation of the evidence. In addition, the defense had few opportunities to present a defense at this stage. Because of the low standard for indictment of the lack of any procedural or evidentiary protections for the accused, and the virtual certainty of an indictment, the grand jury hearing often went uncontested. Unfortunately, many innocent people were indicted on pretty flimsy evidence. Though these cases might later be dismissed for lack of evidence, the damage to the accused was already done once the charges were filed, and their lives and their reputations were turned upside down.

The Supreme Court of New Mexico addressed the injustice of the grand jury procedure in Jones v. Murdoch (NM 2009). The Court recognized the injustice of the grand jury procedure very succinctly when it stated:

"To allow the prosecutor's screening function to proceed unchecked pre-indictment invites post-indictment inefficiencies into the system. And to assume that all damage flowing from an unjustified indictment can be cured post-indictment is to ignore the lasting injury that even an unsuccessful indictment can inflict."

To correct the procedural imbalance of the grand jury and the enormous harm of a baseless indictment, the Court expanded the accused target's right to have exculpatory evidence presented to the grand jury. To be admissible, the evidence must simply be "lawful, competent, and relevant" and must tend to prove the indictment is unjustified.

There are numerous requirements on the criminal defense attorney to take advantage of the new grand jury defense opportunities now available as a result of Jones v. Murdoch. The challenges at grand jury are still significant. In fact, despite the new protections of Jones v. Murdoch, innocent people will continue to be indicted along with the ham sandwiches. However, there will be many more victories at this stage than in the past. And with each success, it is hoped prosecutors throughout New Mexico will be less inclined to abusive grand jury practices and clearly baseless grand jury proceedings that have been the rule in the past.

Parrish Collins
Collins & Collins, P.C.
Albuquerque, New Mexico
www.collinsattorneys.com

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