Albuquerque Criminal Lawyer Blog

Conspiracy charges are very common in New Mexico. The word conspiracy sounds may suggest something very serious, sinister and complex but in actuality it is a fairly simple charge to derive in criminal cases involving multiple defendants.

The Mexico Jury instruction is pretty straightforward and from it, it is easy to see why conspiracy charges are often charged where there is more than one defendant. The jury instruction on conspiracy sets forth 3 basic elements: 1) the defendant and another person or persons by words or acts agreed together to commit a crime, 2) the defendant and the other person or persons intended to commit the crime, and 3) it happened in New Mexico.

In short, it is quite easy to get an indictment on conspiracy when 2 or more defendants are allegedly involved in a crime. One defense that may be asserted is "withdrawal" from the conspiracy. It is possible for a defendant to conspire to commit a crime but subsequently withdraw from the conspiracy. In other words, the defendant was no longer involved.

The Supreme Court case of Smith v. United States has implications for those charged with conspiracy in in New Mexico on a number of fronts. The case addressed a situation involving the asserted "withdrawal" defense. The case was made more interesting by the fact that it was also alleged that the statute of limitations had run since the alleged withdrawal. Interestingly, the statute of limitations was 5 years and the defendant had been in prison on other charges for 6.

The Court made a number of important findings regarding "withdrawal" with consequent implications for the statute of limitations. First, the court addressed who bears the burden of proving withdrawal. The Court stated that because withdrawal from a conspiracy is an affirmative defense and affirmative defenses must be proved by the defendant, the burden was on the defendant to prove withdrawal and not upon the prosecutor to disprove it.

The Court also set forth the rule which also governs withdrawal in New Mexico regarding the nature of the withdrawal. In short, the defendant must prove unequivocally by words or deeds that he or she withdrew. Apparently, imprisonment does not quite meet this high standard.

The Court further stated that defendant remains criminally liable for all criminal acts that occurred prior to the withdrawal. So a defendant cannot simply assert that he withdrew, and somehow disavow responsibility for acts occurring before the withdrawal. An effective withdrawal will prevent criminal responsibility for any acts or crimes occurring after the withdrawal. However, there may be issues and problems for a defendant for the natural progression of the conspiracy of which he was apart and failed to stop. That topic is beyond the scope of this article.

Finally, there is a statute of limitations on conspiracy charges. In Smith v. United States, it was 5 years. However, the statute of limitations does not begin to run until the withdrawal. And once again, the defendant must prove the withdrawal and the date of withdrawal in asserting the statute of limitations. If there was an effective withdrawal, and the statute of limitations has run since that withdrawal, then indeed the prosecution would be barred from pursuing charges.

In short, the issues are complicated and require the assistance of an experienced criminal law attorney. If you have been charged, you should not delay in speaking with an attorney. If you cannot afford an attorney, there are many very skilled New Mexico public defenders and you should apply for assistance immediately.

Related Reading:
Speedy Trial Requirement & Six Month Rule on Misdemeanor Cases: Exceptional Circumstances Required for Deviations
Speedy Trial Rights in New Mexico
Speedy Trial Rights Stumble Up from the Mat: Oral Rulings Will Not Extend the Rule in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Both the United States and New Mexico Constitutions protect people in New Mexico from unreasonable searches and seizures by the police. These protections arise under Article II, Section 10 of the New Mexico State Constitution and the 4th Amendment to the U.S. Constitution.

In order for the police to search any place or seize any person, they must obtain a warrant. A warrant requires the police to specifically describe what they want to seize, and it has to include a written description of why the police officer believes he or she has probable cause to believe the search will show criminal activity occurred.

In New Mexico v. Boyse, the New Mexico Court of Appeals determined that a warrant obtained by an officer over the telephone was not permitted. In August 2008, an officer responded to a call about a dead horse smell at the defendant's home. He saw evidence of numerous problems while he was looking around the property, and he decided to obtain a search warrant.

The courts were closed at that point, and the police officer did not attempt to find a judge in person. Instead, the police officer contacted the on-call judge by telephone to obtain verbal approval for the warrant. The judge administered an oath to the police officer, and the officer read him the typed facts in support of the search warrant. The judge approved the warrant and the police officer signed the judge's name to the warrant. Several days later, the judge then signed and initialed the warrant himself.

In New Mexico, the Constitution requires a written showing of probable cause. The fact that a sworn writing exists is not enough to satisfy the requirements of the New Mexico Constitution. The requirement for the existence of a sworn writing indicates that the sworn writing must exist somewhere, but also that it must be shown and considered by the court before the warrant issues. In other words, the judge must physically review the police officer's sworn statement before issuing a warrant. Therefore, the constitutional requirements are not met if the police officer writes out a probable cause statement but does not show it to the judge.

In this case, when the judge approved the warrant, the police officer did not show the writing to the judge. While the police officer read the written statement to the judge, the judge had no way of knowing whether the written statement even existed. Furthermore, the judge did not have any way of knowing if it was modified between the phone conversation and the time the judge signed the warrant. The possibility of error or abuse is simply too great. The warrant was invalid, and the evidence obtained from the search could not be used against the defendant.

The protections of the 4th Amendment and Article II, Section 10 of the New Mexico State Constitution provide significant protections to the public. This is particularly true for those charged with crimes in the State. In fact, search and seizure violations and the suppression of illegally obtained evidence are in many cases the best and/or only line of defense in a criminal case.

If you have been charged with a crime, it is important to speak with an attorney with knowledge of search and seizure issues. It is particularly important to discuss the facts surrounding any search of your property as well as the circumstances of arrest. It may be that your best defense is on search and seizure grounds.

More Reading on Search & Seizure:
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Under the Fourth Amendment of the U.S. Constitution, individuals are protected from unreasonable searches and seizures that are not accompanied by a warrant or supported by probable cause. There are a small number of exceptions to the warrant requirement when police can conduct a search and seizure. A 2011 Supreme Court case, Kentucky v. King, explained the limits of the exigent circumstances exception to the warrant requirement when officers search a private residence.

In Kentucky v. King, police officers followed a suspected drug dealer to an apartment complex where they smelled marijuana coming from one of the apartment doors. Officers knocked on the door and announced their presence. Officers at the scene testified that when they began knocking they could hear movement within the apartment that sounded like the occupants were destroying evidence. Law enforcement officers kicked the door in and found marijuana and cocaine in plain view during a protective sweep of the apartment.

The Defendant claimed that the warrantless entry and search of the apartment was in violation of the Fourth Amendment and that the exigent circumstances exception did not apply because police created the exigency. Essentially, the defendant argued that by loudly knocking on the door, police created a situation where there was a danger of destruction of evidence. The Supreme Court disagreed.

A warrantless search of a private residence is generally considered unreasonable and therefore prohibited by the Fourth Amendment. However, law enforcement officers may enter and search a private home without a warrant if there are exigent circumstances present. Exigent circumstances are present when there is an eminent danger of harm to an individual, a suspect is escaping, or evidence may be destroyed.

Under the "police-created exigency" rule, the exigent circumstances exception does not apply if law enforcement officers "manufactured" or created the exigency. However, lower courts have come up with different tests to determine whether an exigency was created by police officers. The Supreme Court in Kentucky v. King announced the correct test to determine whether the exigency was "police-created."

Under this ruling, police create an exigency only when they "engage or threaten to engage in conduct violating the Fourth Amendment." Simply put, the exigent circumstances exception to the warrant requirement applies even if the police officers' actions caused the exigency, as long as the officers were acting lawfully and reasonably.

In this case, police knocked loudly and announced their presence. Neither knocking nor announcing the presence of law enforcement, according to the Court, is in violation of a residence's occupants' Fourth Amendment rights. According to the majority, police may need to knock forcefully and announce themselves loudly in order to let a residence's occupants know that they are at the door. In this case, officers did not enter the apartment or make any demands to enter the apartment or otherwise suggest an eminent search. They entered he residence only once they heard people moving inside and feared that evidence would be destroyed.

Therefore, even when police create a situation where a suspect may destroy evidence by knocking at their door, as long as police are acting reasonably and lawfully, they may enter the residence without a warrant. Of course, the officers must have a legitimate and lawful reason to knock on the door to begin with. Likewise, there must be an exigency meriting a warrantless entry. For this determination, the Supreme Court send the case back to the Kentucky courts.

Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

In State v. Olson, the New Mexico Supreme Court recently reversed a Court of Appeals decision, addressing a police officer's authority to question a person about unrelated crimes after pulling him over for a traffic violation.

An officer filling out paperwork noticed Defendant driving suspiciously. After following the defendant, the officer noticed that the car's temporary tags were expired and pulled him over. When he approached the vehicle, the officer recognized the passenger in the front seat as a prostitute. The officer then asked Defendant to step out of the car. Defendant was holding a fanny pack and the officer asked him to place it on the hood of car, as a safety precaution. When asked for identification, Defendant reached for his fanny pack. The officer asked to look inside the fanny pack, to make sure no weapons were inside and the defendant agreed.

Inside the fanny pack the officer discovered three crack pipes. Defendant then admitted that he used the pipes to smoke cocaine. The officer arrested and handcuffed Defendant, asking him where the cocaine was located, and he directed the officer to five crack rocks in his front pocket.

Defendant was charged with possession of a controlled substance. He moved to suppress the evidence as an unlawful search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The 4th Amendment and Article II, Section 10 of the New Mexico Constitution are intended to prevent the police from engaging in unreasonable searches and seizures. An automobile stop, with detention of its occupants, is considered a seizure under the law. Under New Mexico law the officer must have a valid reason for the traffic stop, and any questions asked during the stop must be reasonably related to the reason for the stop. However, the officer may expand the questioning where he has reasonable suspicion that other criminal activity has been or is occurring.

After a suppression hearing, the district court denied the motion to suppress. The Court of Appeals then reversed on the grounds that the officer could not expand the traffic stop into an investigation of prostitution solicitation, tainting the fanny pack search.

The NM Supreme Court noted that normally the mere presence of a suspected prostitute would not be enough to allow the officer to expand his questioning beyond the traffic search. However, in this case, the officer described several specific instances of Defendant's suspicious behavior. The Court elected to defer to the training and experience of the officer with regard to what constituted suspicious behavior. While recognizing that police officers should not be permitted to stop and harass individuals just because they associate with known criminals, the Court determined that was not the case here because the officer properly pulled Defendant over for the expired tags.

The defense of criminal charges often turns on the admission of evidence. Often the best defense is a good offense in seeking to have the evidence suppressed under illegal search and seizure grounds. It is important to discuss these matters with an experienced criminal defense attorney as this is often the best line of defense.

Related Reading:
4th Amendment and the Plain View Doctrine
Police in New Mexico Have Wide Latitude in Questioning During Traffic Stops
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals recently issued a ruling in Farmington v. Pinon-Garcia regarding the proper scope and standard of review for an appeal from a lower court that is not of record.

The Court held that the proper standard of review for decisions by a municipal court or any other court that is not of record is de novo, and that the scope includes a de novo review of all pretrial proceedings and preliminary matters raised by both parties. De novo review is a standard of appellate review where the reviewing court analyses the facts of a case as if it were considering the issues for the first time, regardless of the lower court's findings.

The facts of Farmington v. Pinon-Garcia involved a Defendant charged with several traffic violations, including DWI. Defendant was arraigned in municipal court and the arresting officer failed to appear as the prosecution's witness on the day set for trial. Accordingly, since the prosecution failed to secure the presence of a witness for trial, the municipal court dismissed with prejudice. When a case is dismissed with prejudice it usually cannot be refiled.

The City of Farmington appealed the dismissal to the district court. The district court conducted a de novo trial on the merits of the case and the Defendant was convicted. On appeal, the New Mexico Court of Appeals found that the district court should have conducted a de novo hearing on whether the municipal court properly dismissed the issue before engaging in a de novo trial on the merits of the case.

The Court went on to explain the proper standard of review for rulings from a magistrate court, including whether it was proper to dismiss without prejudice, was de novo because the magistrate court was not a court of record. A court not of record is an inferior court where proceedings are not memorialized in the same way as those in courts of record. Since the district court was reviewing matters that are not part of a record, the proper standard of review is de novo.

According to the Court, the district court erred because it should have conducted a de novo review of all pretrial proceedings and preliminary matters, including the Defendant's motion to dismiss and whether he was being put in double jeopardy, before going on to hold a new trial.

In this case, the district court did not address whether the municipal court properly dismissed the charges against the defendant, did not take any additional evidence, or hold a hearing on the matter, but instead issued a ruling denying the Defendant's motion to dismiss. In doing so, the district court did not question whether dismissal by the municipal court was appropriate, whether a new trial on the merits was appropriate, or whether it put the Defendant in double jeopardy.

For these reasons, the case was reversed and remanded to the district court to perform a de novo review on whether the municipal court's dismissal for the prosecution's failure to secure the presence of a witness was appropriate. The Court also stated that the district court must specifically address double jeopardy issues in its review as well.

Issues of double jeopardy and standards of review can be very complicated. If you are faced with a situation like this, an experienced criminal attorney can explain your rights and options.

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

The "plain view doctrine" applies to searches and seizures under the Fourth Amendment of the U.S. Constitution. In simple terms, the plain view doctrine allows an officer to seize evidence without a warrant if it is in plain view of the officer.

For the plain view doctrine to apply, the seizure must meet the following three requirements: (1) the officer must have been legally on the premises, (2) the object must have been in plain view, and (3) it must have been immediately apparent that the object was incriminating.

An officer has to be legally on the premises for the plain view doctrine to apply. If the evidence was viewed from a public space, the officer was legally allowed to be on the premises. This would apply when an officer views a gun inside an open window of a house from a public sidewalk or when an officer sees a bag of narcotics on the dashboard of a vehicle at a routine traffic stop.

If, on the other hand, the officer is inside a private residence or place of business, the officer is required to have probable cause or a warrant to be on the premises in the first place. Officers can also legally be inside a private residence or place of business when there is consent or when exigent circumstances require it.

The object must be in plain view. An officer is not allowed to move objects to get a better view of an object. For example, a police officer is not allowed to move the curtains in an open window of a residence to get a better view of the home. Officers are also prohibited from moving an object to get a better view of the serial number unless they have a warrant to do so.

Similarly, officers are not allowed to open closed containers unless there is a warrant to search for an object that is likely to fit in said container. For example, if an officer has a warrant to search a suspect's home for a stolen television, the officer is not allowed to open the suspect's purse.

The incriminating character of the evidence must be apparent immediately. Incriminating character of evidence usually involves objects that are likely to be stolen, items used to commit crimes, illegal items, or other evidence of criminal activity.

For example, if police are serving a search warrant for an unrelated crime and find a table with hundreds of different credit cards from different banks and under different names, it is likely that they are stolen and therefore the plain view doctrine applies.

Items used to commit crimes include all types of weapons as well as gadgets like prohibited credit card scanners. Illegal items often involve drugs. The illegal items might also relate to instrumentalities of crime under investigation. For example, if police are serving a search warrant for evidence of weapons used in a bank robbery and an officer sees a black ski mask on a chair like the one worn by the suspect at the scene, the mask may be taken into evidence.

Officers and prosecutors may try to take advantage of the plain view doctrine in order to admit otherwise inadmissible evidence. They may venture into areas where they are not legally authorized to be. They may enter a home or business without the proper consent. They may move items in order to bring an item into plain view. They may seize evidence that is not particularly indicative of criminal activity.

The 4th Amendment is among the greatest protections afforded citizens. If evidence has been seized from your home, business, car or other private property, it is important to consult with an experienced criminal law attorney to ensure that your Fourth Amendment rights are protected.

Collins & Collins, P.C.
Albuquerque Attorneys

False imprisonment is a fourth degree felony. As a felony, it has very serious felony consequences for the defendant. A true case of false imprisonment is a very serious matter deserving of serious treatment by the prosecutor. However, the charge of false imprisonment is often thrown in on the most whimsical evidence.

The New Mexico criminal statutes define false imprisonment as "intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so." Though the statute is intended to address very serious and specific behavior, the broadness of the language allows it to be applied in a fairly arbitrary manner.

The most common incidence of overcharging a defendant for false imprisonment arises in domestic settings. The charge is often coupled with domestic violence charges such as assault or battery on a household member. The creativity with which it is applied to the facts often comes as a surprise to both the defendant and the alleged victim.

For instance, and not uncommonly, the alleged victim will tell the police that the defendant was blocking a doorway so she could not get out of a room. The alleged victim may give this statement with little consideration, not knowing, and not intending to suggest the crime of false imprisonment. There are countless variations on this theme where the alleged victim suggests in some small way that her right of ingress or egress was inhibited.

Due to the broad language in the statute, prosecutors have a great deal of latitude in bringing the charge of false imprisonment. Unfortunately, the charges are brought far too often on fairly innocuous behavior and well beyond the intended grievance of the alleged victim. The defendant rightfully will be very alarmed by the felony domestic violence charges. Frequently, the alleged victim is equally outraged by the hyped up charges.

Because of the serious potential consequences of a felony conviction, it is important to address these types of charges early. On occasion, depending on the circumstances, it is possible to avoid indictment on false imprisonment charges if the charges are addressed early enough. Once the indictment is issued, there are still some though fewer options to avoid a felony conviction.

Anyone facing false imprisonment and felony domestic violence charges should contact a attorney experienced in criminal and domestic violence charges as soon as possible. Delay in addressing the problem may seriously impede possible defenses.

Collins & Collins, P.C.
Albuquerque Attorneys

Sentencing is New Mexico felony criminal cases can be pretty tricky as both the prosecution and defense argue their positions to the judge. The State typically argues that the defendant should spend time in prison while Defense counsel argues against prison time.

Sentencing is greatly complicated when there is a firearm involved with the felony charges. When the defendant is convicted of a felony and a firearm is used, there really is no opportunity for the Defense to argue for deferred jail time. In other words, the defendant, if convicted, is going to prison. Prison time is mandatory.

When a defendant is convicted of a non-capital felony and through a separate finding of fact by the jury it is determined that a firearm was used, the judge shall increase the sentence by one year. For a second felony conviction where a firearm is used the sentencing is enhanced by three years.

It is important to realize that a firearm is defined as a weapon designed to propel an object by an explosion. There is a significant distinction between a firearm and a deadly weapon. Many objects may be used as deadly weapons. Much of the classification of a deadly weapon depends upon intent. As such, a lamp if used with deadly intent constitutes a deadly weapon. Firearm classification is more restrictive. For instance, a bb gun or even a C-O2 air gun may constitute deadly weapons depending upon the intent and use, but neither are considered firearms.

The Defendant is looking at mandatory jail time for firearm sentencing because the Judge is mandated by law to enhance the sentence. Moreover, the defendant must spend the entire firearm enhanced sentence in prison. "Good time" reduction in sentencing is not allowed.

There are a few defense strategies that may avoid the felony firearm enhancements. One possible strategy used by Defense Counsel to avoid jail time is to negotiate with the state and plea bargain the underlying felony offense to a misdemeanor. When the felony is pled down to a misdemeanor, the firearm enhancement is taken out of the equation in determining sentencing.

Another possible approach is through the jury instructions issued to the jury at trial. The goal is to include a lesser misdemeanor offense in the jury instructions. This will allow the jury to consider the less serious offense. If the jury finds guilt on only misdemeanor offenses, the felony firearm enhancement is not in play because the underlying charge is a misdemeanor and not a felony.

Firearm charges are extremely serious. They take many possible defense and plea options off the table. Anyone facing a firearm related charges would be well advised to contact an experienced New Mexico criminal law attorney as early in the criminal process as possible.

Collins & Collins, P.C.
Albuquerque Attorneys

There can be both civil or criminal domestic violence no-contact orders against an accused. Violation of either the Family Violence Protection Act Order of Protection or a no-contact order in a criminal domestic violence action is very serious. Violation of the Order of Protection can result in a number of penalties including orders of contempt and bench warrants. Violation of a no-contact order in a criminal domestic violence action results in additional criminal charges. Repeated or aggravated violations can result in aggravated stalking and other felony charges.

Unfortunately, these results may occur even in cases of inadvertent or innocent violations. Innocent violations such as contact through marital or family counseling and/or exchanges of the children can result in criminal charges for violations of the no-contact provisions in criminal cases. Worse yet, charges may result even if the alleged victim initiated the contact. This often happens when the alleged victim invites contact and then calls the police on contact or upon receiving a text or phone call from the accused. This may happen for any number of reasons. It may be malicious. At times, it could be that the alleged victim is simply confused or conflicted. The defendant may have a defense to the violation in cases where the alleged victim initiated the contact, but it will not prevent the criminal charges, and the stress and costs associated with those charges.

On many occasions, the alleged victim is confused or concerned about the process. The alleged victim may not want to pursue the case but be concerned about the calls or subpoenas from the district attorney's office. Many times, the alleged victim will actually call the accused for advice in these situations. The alleged victim should be seeking independent legal counsel. The accused should not be talking with the alleged victim at all. Certainly, the accused should not be weighing in on issues related to the alleged victim's cooperation in the criminal proceeding.

The accused in these situations should have no contact with the alleged victim. In fact, the accused should have absolutely no contact with the alleged victim under any circumstance when there is an order of protection or no-contact order in place. This includes receiving or returning calls or texts. The accused should under no circumstances advise or direct the alleged victim on how to proceed in the case. It is not uncommon that the alleged victim solicits the advice from the defendant and then passes the advice on to the prosecutor. At this point, an aggressive prosecutor may file charges for tampering or intimidation of a witness. Intimidation of a witness may be charged as a 3rd degree felony carrying felony sentencing. This is so even when where the accused is genuinely concerned about the alleged victim and sincerely trying to help.

If an alleged victim is confused about the process or his or her rights in the process, he or she should contact a criminal defense attorney for advice. The reality is that the process can be just as confusing and frightening to an alleged victim as it is for the accused. This is particularly so in cases that have been blown out of proportion by law enforcement or prosecutors, which at times seems the rule rather than the exception. Unfortunately, alleged victims have little input and no control over the process once it begins. However, they do have rights and a criminal defense attorney will be able to explain those rights along with any legal duties on the alleged victim as the process moves along.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The law in New Mexico regarding the validity of breath alcohol tests (BAC) in DWI/DUI cases has been recently modified by statute. The modification has severely curtailed the use of expert testimony by the defense to attack the validity of the breath alcohol scores. These issues were addressed in the 2009 New Mexico Court of Appeals case of State v. Jenita Chavez.

In the past, DWI/DUI defendants would often bring expert testimony to address the possibility that the blood alcohol levels at the time of driving were different than the levels at the time of BAC. The arguments were based on the absorption rates of alcohol into the blood stream, or retrograde extrapolation. For example, if one were to take a shot of tequila and jump in the car for a quick drive home, it is possible that the alcohol would not have absorbed during the short drive and the driver would suffer no impairment. If the driver is pulled over and later tested at a substation, sometimes hours later, there was an argument that the alcohol had more time to absorb so that the blood alcohol levels at the time of the test were higher than at the time of driving.

The New Mexico legislature took this line of defense away by amendment to the DWI/DUI statute NMSA 66-08-102(C) to read "It is unlawful for ... a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle." Expert testimony on the absorption rates is now largely prohibited in DWI/DUI trials.

However, the court in State v. Chavez recognized that expert testimony may still be available to attack other aspects of the breath alcohol test. In that particular case, the court upheld the exclusion of the expert testimony because the defendant had failed to show the relevance of the testimony for any legitimate line of defense.

The court, citing the 2007 New Mexico Supreme Court case of State v. Martinez, specifically allowed for DWI/DUI expert testimony to attack the accuracy and reliability of the breath alcohol scores. In State v. Chavez, the defendant attempted to admit expert evidence on how the outcome of the test might be impacted by the person giving the sample. The Court stated that the defendant failed to explain the relevance of this testimony other than for purposes of the now prohibited retrograde extrapolation.

In short, there is now a pretty significant burden on the defense to show the relevance of the DWI/DUI expert testimony for purposes of attacking the reliability of the breath alcohol test. And the attack on the BAC cannot have as its basis alcohol absorption and elimination rates.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, a person has a right to defend himself and his home against harm. The long cherished rights of self-defense are clearly established in New Mexico under the State's Uniform Jury Instructions.

New Mexico General Jury Instruction on Self-Defense UJI 14-5190 states that "A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." New Mexico UJI 14-5180, related to defense of one's property, states that a person may use force that he deems reasonable and necessary to defend his or her property. Of course, the issue will be whether a jury believes the force was reasonable and necessary.

The issue of self-defense will certainly be an issue in the case reported yesterday about the Johns Hopkins University Student who killed an apparent burglar with a samurai sword. The burglar had broken into the student's apartment where he lived with several other students. Upon being confronted by the students, the burglar lunged at the students whereupon he was struck down by the samurai sword.

There is no jury instruction in New Mexico dealing with the flair or style in which one defends his or herself. It seems that this cannot be counted for or against you. So the use of a samurai sword should be deemed irrelevant without more. The Uniform Jury Instructions would seem to indicate that the student not be charged. Unfortunately, there is more to it than that and it is possible that the student will be charged with something, and something quite serious such as homicide or intentional manslaughter, and it will be left to him to assert his defenses. In New Mexico, the outcome would likely be much the same. Fortunately, the student will be armed with the long standing and rather sacred right to defend oneself and one's home from harm.

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