Albuquerque Criminal Lawyer Blog

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