Albuquerque Criminal Lawyer Blog

In every criminal domestic violence case such as battery or assault on a household member, the court will issue a no-contact order. The no-contact order prohibits contact between the defendant and the alleged victim. There can be very harsh penalties for violation of the no-contact order.

Violation of the no-contact order can result in a bench warrant for violation of the conditions of release. In the alternative, the judge may order a hearing to review the conditions of release. The judge can revoke the conditions of release and take the defendant into custody pending trial. The violation typically also results in new charges for the violation of the no-contact order. Repeated violations can result in felony charges.

Due to the severity of the possible consequences for violating a no-contact order, it is highly inadvisable to violate the order. This is the case even when the alleged victim wants contact. The fact is that the alleged victim will frequently want contact following domestic violence charges. However, judges are highly intolerant of violations of the no-contact order no matter what the wishes of the alleged victim. To avoid the wrath of the judge, the defendant must get the no-contact order lifted. To do this, the defendant must file a motion to modify the conditions of release to allow contact between the parties. The alleged victim must be present at the hearing on the motion to modify the conditions of release. Neither the court nor the prosecutor will allow modification in the absence of the alleged victim.

This can be a tricky situation. Cases where the alleged victim wants the no-contact order lifted typically involve very minor incidents. Frequently there was no domestic violence at all which may be why the alleged victim is so anxious to resume contact. The alleged victim in many of these cases called the police in error or for illegitimate reasons. As a result, alleged victims in these cases are often very nervous about going to court or speaking with the prosecutor about the case for fear of reprisals for making a false police report. And in essence, in order for the no-contact order to be lifted, the alleged victim must say that he or she does not fear harm from the defendant. One would think that this strongly suggests that no domestic violence occurred.

Unfortunately, prosecutors do not necessarily see it this way for many legitimate reasons. Then there are those that will not let go of a case no matter what the alleged victim says, even when he or she says unequivocally that there was no domestic violence. Some prosecutors will simply assume the alleged victim is lying. Instead, these prosecutors that will take the opportunity at the hearing on the motion to modify conditions of release to insist that the alleged victim cooperate in the prosecution of the case. It is therefore very important to know the prosecutor in the case before filing the motion to modify conditions of release. Many, if not most, are very reasonable with no time or inclination to prosecute baseless cases. With these, the motion hearing is worth pursuing and in some cases may even result in dismissal of the charges. With overly enthusiastic prosecutors, it may be both pointless and even unwise to file the Motion.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

There was an interesting editorial in the New York Times today about the broken criminal justice system. It was not interesting so much for the recognition of the problem and the fact that there apparently is a bi-partisan effort to study the longstanding problems and to provide solutions. It is far more interesting when viewed in terms of what is happening in New Mexico.

It is well accepted that U.S. prisons are brimming with non-violent offenders, the great majority of whom are drug offenders. It is also well recognized that the costs of housing theses inmates is extremely expensive. In fact, California has put forth a bill to release thousands of prisoners due to the financial strain that it is putting on the state. New Mexico is facing similar pressures.

None of this new and because everyone has heard it time and time again, most have become desensitized to the issues. This is particularly so in New Mexico and apparently acutely so in Albuquerque where the local press seems on a crusade to increase the incarceration rates for everything from first time DWI/DUI to domestic violence to drug offenses to immigration offenses to apparently every crime on the books. There seems to be a law and order movement in Albuquerque and New Mexico generally while much of the rest of the country is seeking less inhumane and oh yes, less expensive solutions to society's woes.

While California is releasing prisoners, Albuquerque Police in particular continue to arrest drivers for DWI/DUI even though they are under the legal limit of .08. They continue to arrest drivers for sleeping intoxicated in their vehicles. They continue to arrest individuals, many of whom are young, for minor possession of marijuana. They continue to arrest people for domestic violence when they come to the scene even when the alleged victim explains there was no domestic violence. And when they bring each of these fundamentally unjust charges, the prosecutors prosecute with little discretion to drop the charges despite the lack of any evidence, or evidence directly contrary to the charges. The prosecutors on the front lines are driven to prosecute by their bosses, who in turn are driven by politics and funding.

And judging by the recent articles and letters to editor, the public wants more it seems. This in turns drives the District Attorneys throughout New Mexico to dig in and push these cases toward trial. After all, District Attorneys are elected officials and they must listen to the masses. These cases have little to do with justice or the protection of society. To the contrary, as prosecutors are forced to push these cases toward trial by their bosses, the media, the new law and order Governor, and ill advised voters, they are pushing New Mexico toward bankruptcy. And the public gleefully cheers them on while at the same time screaming for lower taxes, smaller government, less government intrusion, greater individual rights, and on and on and on.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

It has been widely reported that law school clinics across the country are under attack by corporate interests. It seems that many corporations take offense to the fact that law students are taking on cases against corporate interests. In many cases, these law clinic students take on the causes of the poor that could not afford legal representation otherwise. There has been little support coming from government officials to protect these programs. There are no campaign contributions to gain from that position.

There is on the other hand plenty of money to go around to prosecute the poor. Governor Richardson announced a program complete with $150,000 funding to UNM School of Law to offer law students hands-on training in the prosecution of DWI and Domestic Violence cases. Where funding is under attack for programs to help the poor both in law clinics and public defender programs across the nation, there seems no shortage of money for the prosecution of the poor who are particularly hard hit by domestic violence.

Domestic violence in particular is a large portion of any public defender caseload. Public defenders are grossly underfunded as it is with enormous caseloads of indigent defendants. Now they have the added burden of dealing with students who will receive the full support of their professors, those same professors whose approval may drive excessive zeal in their prosecution of cases, despite the merits of the case. Public defenders are already greatly out-gunned by the resources of the prosecution. It makes perfect sense to now provide free labor and full access to law school resources to further overwhelm them.

Why does this matter? An article in the Albuquerque Journal quotes one individual who laments the day that she was unable to talk an alleged domestic violence offender out of prosecuting her husband. Of course, the article fails to mention the fact that many alleged victims immediately regretted the call to the police. On many occasions, the alleged victim will tell the police on arrival that nothing happened and they called because they were upset, stressed, jealous, angry, insecure, or any number of reasons not suggestive of domestic violence. The police will generally arrest one of the parties anyway as a matter of policy.

Also as a matter of policy, many New Mexico prosecutors will not reassess the case and dismiss the charges once it is apparent that there was no act of domestic violence. They will not dismiss the charges even when the alleged victims tell them in no uncertain terms that they are not victims of domestic violence. They will not dismiss when the alleged victim provides written statements, recorded statement, and even comes to court to explain to the prosecutor in person that there was no domestic violence. They will not dismiss when the victim cries, "I am not a victim."

It is reported that the UNM Law School program will be both beneficial in training budding prosecutors as well as greatly aiding the overburdened prosecutors offices. Here's a thought on the latter, perhaps prosecutors could evaluate the cases and get rid of the cases that clearly have no basis. That might help their caseload?

Not everyone that comes to court is a true victim, and not every named defendant is predator. I'm no genius but it seems a good place in trying to discern the true victim and predator is to ask the alleged victim. Of course, the experts on domestic violence disagree. Instead, the alleged victim needs to be convinced that she is a victim. There really is no better place for learning the art of persuasion than law clinic. We just don't want to waste that art on the poor.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

One of the primary concerns of many facing domestic violence charges is the impact a conviction will have on their right to possess or carry firearms. This concern is particularly serious for those whose employment requires that they be allowed to possess or carry a firearm such as law enforcement, the military, and public or private security. The prohibition against possessing or carrying a firearm for people in these professions can be financially ruinous.

Conviction of a domestic violence offense in criminal court carries with it a lifetime ban on the possession of a firearm. Federal law under 18 U.S.C. § 922(g)(9) provides for a lifetime ban for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence." Violation of the law results in very serious felony charges under federal law.

As a result, a conviction for misdemeanor domestic violence can make an individual ineligible for employment in any occupation requiring the use of a firearm. This not only prevents individuals from pursuing employment in these areas, but can result in the lawful termination of a person's employment for a domestic violence conviction. This may be the case even for those who have been employed for years with that employer.

Of course, victims must be protected from domestic violence. However, there are a number of injustices that arise that are largely ignored under the pretext of protecting victims. First, as has been discussed in previous posts, false domestic violence actions are often filed for illegitimate purposes. Second, the definition of domestic violence is very broad. Prosecutors will often use the broad definition overcharge cases that really have no business being charged as domestic violence. Again, as a result of the incredibly broad definition, prosecutors will often also charge cases as domestic violence when the charge only vaguely resembles domestic violence. For instance, someone who kicks a wall, throws a phone, breaks some dishes or the like is often charged with domestic violence rather than simple destruction of property. Finally, the definition of assault which is part of the domestic violence offense of assault of a household member is really so flexible that anyone of the right mind could come up with charge no matter what the reality of the situation.

For an individual whose very livelihood depends on the outcome of these proceedings, the process is confusing, frustrating, and most of all frightening. Men and women who have spent their entire lives doing the right thing, without a single other blemish on their record, face the possibility of the loss of their gun rights, a right held sacred under our Constitution, and with that loss, a loss of any financially secure future in the profession which they have chosen. It is not infrequent that they face these consequences despite the absence true domestic violence for which the law was meant to protect.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Many times clients are confused on the difference between a criminal domestic violence action and a civil domestic violence action. There are many distinctions between the two, too many to enumerate them all here. In short, however, each is extremely serious and should be treated as such.

A criminal domestic violence action usually begins with a criminal complaint alleging battery on a household member or assault on a household member. In Albuquerque, these are filed in Metropolitan Court. In other areas, including Rio Rancho and Sandoval County, they are filed in magistrate court. In cases involving serious injury or deadly weapons, the cases will be filed as felony domestic violence and the case will eventually be transferred to District Court.

A civil domestic violence action begins with a Petition for Order of Protection Against Domestic Abuse. In most areas of New Mexico including Albuquerque, Rio Rancho and Santa Fe, these cases are heard by a domestic violence hearing officer. These are not criminal in nature. As such, the standard of proof is not as rigorous as in a criminal proceeding and sometimes it seems that the hearing officers are predisposed to make a finding of domestic violence despite the evidence. On the other hand, a finding of domestic violence in a civil hearing will not result in criminal penalties such as probation or jail time.

In both the criminal and civil domestic violence actions, the alleged perpetrator of domestic violence will be ordered to have no contact with the alleged victim. In a criminal case, the "no contact" provision will be in the Order Setting Conditions of Release. In the civil action, a Temporary Order of Protection is issued upon filing the Petition for Order of Protection from Domestic Abuse. This Temporary Order will remain in effect until the hearing which usually is set within 10 days of service of the Order on the Respondent (alleged perpetrator). If there is a finding of domestic violence at the hearing on the Petition for Order of Protection, the Order of Protection will be extended for 6 months. It may be extended an additional 6 months for good cause on a Motion to Extend Order of Protection.

In both the civil and criminal cases, a violation of the "no-contact" provisions have very serious consequences. Violations of these Orders is a crime. In fact, violation can be charged as a felony in the criminal case with very serious penal consequences. In the criminal case, the defendant will be arrested and the judge may order the defendant held in custody until the trial date. In addition, the defendant will likely face new charges including possible felony domestic violence. In the civil case, a violation of the no-contact order can and typically does result in a finding of contempt for which the Respondent can be taken into custody often times for 10 days, though the judge can order a longer time period.

In addition to the distinctions above, the jurisdiction of the court over matters related to the parties is very different. The family court domestic violence officer can address who stays in the home, generally the alleged victim. The domestic violence hearing officer can also address temporary child custody and time-sharing , and child support. The criminal court cannot address these issues as its jurisdiction is limited to criminal prosecution. However, the no-contact order in the Order Setting Conditions of Release often has the effect of awarding the home to the alleged victim.

It is important that you understand the difference in these two proceeding if you have been accused of domestic violence. Though the criminal case may appear much more serious, the reality is that the civil case has much broader consequences addressing property rights, child custody and child support. And of course, a finding of domestic violence in the family court has most of the same negative consequences of a criminal conviction such as immigration consequences, employment consequences and gun ownership to name a few.

In short, in either case, you should contact an attorney immediately upon learning of allegations of domestic violence. The possible consequences are too severe to take these matters lightly.

www.CollinsAttorneys.com

A criminal defendant has a right to confront and cross examine the State's witnesses under the 6th Amendment. This is the chief weapon for domestic violence defendants in Albuquerque and throughout New Mexico. The refusal of the alleged victim to testify is the basis for the great majority of the dismissal of these types of cases. Unfortunately for defendants, this option may be very limited in the future as a result of the New Mexico Court of Appeals ruling in State v. Soliz.

The U.S. Supreme Court of Crawford v. Washington made the right to confrontation of witnesses more explicit when it ruled that a defendant has a right to confront any testimonial witness. The Court stated that when the witness is unavailable, any out of court testimonial statement made by that witness is inadmissible. The question becomes what is "testimonial"? Crawford set out some guidelines with the basic premise being whether or not the statements were given with an eye toward prosecution of the defendant.

The U.S. Supreme Court in Davis v. Washington set further guidelines on the term "testimonial." The Court in Davis stated that statements are non-testimonial if they are given with the primary purpose of assisting the police in an ongoing emergency. They are testimonial when there is no such ongoing emergency, and the primary purpose of the statement is to provide information potentially relevant to a subsequent criminal prosecution.

The New Mexico Court of Appeals in State v. Soliz had an opportunity to address the definition of testimonial witness in a domestic violence setting. State v. Soliz involved a domestic violence call to 911. Soliz girlfriend was frantic and crying when she told the 911 operator that Soliz had just attacked her, he had fled, he had pursued her with the instrument with which he had attacked her, and he was under the influence of drugs or alcohol.

The Court in Soliz followed Davis fining that the statements by Soliz' girlfriend were non-testimonial since made in an emergency situation for the purpose of gaining assistance from the police. Because they were non-testimonial, they were fully admissible at trial despite her unavailability. In fact, the girlfriend refused to testify or otherwise cooperate in the prosecution of Soliz. This frequently occurs in domestic violence cases.

The ruling in Soliz poses some real potential problems for domestic violence defendants in the future. In essence, Soliz will allow the State to go to trial on the back of a 911 call without the necessity of bringing the victim to trial. The lack of a victim has in the past been the primary means for getting these cases dismissed. This option is now severely curtailed by Soliz.

On every criminal charge filed in Albuquerque or anywhere else in New Mexico for that matter, an Order Setting Conditions of Release will be issued. The Order is pretty standard for the most part. The Order will prohibit the possession or consumption of alcohol or illegal drugs, the violation of any laws while out on release, driving without a valid driver's license, or the possession of firearms or other deadly weapons. Finally, the Order will prohibit contact with the alleged victim(s).

These Orders Setting conditions of release are taken very seriously by the judges throughout New Mexico, and especially in Albuquerque. Violation of the conditions can result in arrest and worse a hold until the date of trial. The condition that stings the most in domestic violence cases is the Order prohibiting contact with the alleged victim. Often, the alleged victim does not want to pursue the charges. There are many cases when the alleged victim did not even call the police. Instead, a neighbor may have called in a domestic violence call. Frequently, the alleged victim will flat out explain to the police that nothing happened, and there was no domestic violence.

An arrest is made anyway as a matter of law enforcement policy. The police officer simply will not take the risks of leaving both parties unattended at the scene of a possible domestic violence. There are too many high profile cases where this was done, and one of the parties was badly injured or even killed.

The arrest of course kicks in the criminal process and the no-contact order. The defendant is now prohibited from returning to the home. This places enormous emotional strain on the couple or family. In addition, the financial consequences can be disastrous.

So what should you do? This is a hard question to answer and an even harder decision to make on your part. You can file a Motion to Modify Conditions of Release. This requires both your appearance and the appearance of the alleged victim in court before the judge. Once the alleged victim appears, the District Attorney, and sometimes the Court, will strongly insist that the alleged victim appear for all future court appearances. The prosecutor may even insist on regular contact between the alleged victim and the prosecutor's office. This keeps the alleged victim under the control of the District Attorney and almost insures the alleged victim's appearance in Court on the date of trial.

Why is this a problem? Many of the cases described above get dismissed eventually because the alleged victim does not want to pursue the charges, and will avoid the District Attorney to avoid being forced to proceed on questionable or baseless charges. Once the District Attorney has made contact with the alleged victim, the greater the chances are that the District Attorney will coerce the attendance of the alleged victim even by threat of contempt, or the threat of charges against the alleged victim for making false criminal charges.

Thus, the reluctant alleged victim who knows full well the call to the police and the consequent criminal charges should not have been made will show up for court out of fear of reprisal by the District Attorney for their refusal to cooperate. Thus, in the end, you are faced with the decision of modifying the conditions of release which on the one hand allows you to legally go home while on the other greatly increasing your chances of a full blow trial.

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.

Domestic Violence in Albuquerque is taken very seriously. The District Attorneys in Albuquerque, and many others throughout New Mexico have a very strict policy against dismissing domestic violence cases no matter how weak the evidence. In fact, they rarely dismiss a domestic violence case even when it is perfectly clear that there was no act of domestic violence committed.

This position seems unreasonable to most, particularly those caught up in this policy. The policy is extremely frustrating for those wrongfully accused and forced to endure a wrongful prosecution. Often times, even the alleged victim suffers the severe financial and emotional consequences of these policies. In short, a domestic violence proceeding is extremely stressful, and a even just the charge of domestic violence can have significant consequences.

This is true for U.S. citizens. The consequences for non-citizens can be disastrous. A conviction for domestic violence can result in deportation and inadmissibility of non-citizens. There are few options for domestic violence cases. Typically, the most a district attorney will offer is Early Intervention Program. This program ultimately results in a dismissal. However admission to the program requires an admission of responsibility. Some judges require an admission of guilt.

These admissions can trigger the immigration consequences of deportation and inadmissibility. As a result, Early Intervention Program is probably not an option for the non-citizen. An admission of guilt is simply not an option for the non-citizen. Often, the only option for the non-citizen is a trial. And any trial carries risks due to the unpredictable nature of jury trials, or bench trials for that matter.

If you are not a citizen and you are facing domestic violence charges, you need to be very careful about taking any kind of plea. If you have the resources, you should seek the assistance of both a criminal attorney and an immigration attorney so that you can understand and weigh all of your options. Be careful, or you may feel the fleeting joy of what is seemingly a beneficial outcome of your case, as you soon learn that you are now subject to deportation.

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

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