Albuquerque Criminal Lawyer Blog

There a variety of factors that come together during the holidays that far too often end with trip to jail and a journey through the courts. Sadly, the holiday season brings with it a significant increase in incidents of domestic violence. One need not look far to figure out the causes for this.

Alcohol is perhaps the chief culprit. Generally, alcohol is a significant contributor to incidents of domestic violence. This is well recognized and is one reason alcohol use is strictly prohibited as a condition of release in domestic violence cases. Violations of the prohibition on alcohol use have serious consequences for the defendant not infrequently resulting in confinement while a criminal domestic violence case is pending.

Unfortunately, use of alcohol increases substantially during the holidays. Most every party and get together will have alcohol. In addition, there are the alcohol fueled football game watching activities. Alcohol is often even served at company parties and holiday functions. It would be hard to avoid alcohol even if one were inclined to do so. And, many are predisposed in the other direction due to any number of circumstances.

Stress during the holidays can add significant pressures to a relationship. There are too many holiday stressors to enumerate here. Suffice it to say that stress coupled with alcohol can lead to some unfortunate outcomes.

Alcohol and stress cannot used to explain away domestic violence. Nor can it be used as an excuse. Domestic violence is a very serious issue with much deeper and complex explanations than a mix of alcohol and stress. On the hand, it is fairly well established that many people do not handle alcohol very well. They do things under the influence of alcohol that they would not otherwise do.

It is clear that stress and the lack of control or inhibitions brought on by alcohol can lead to escalation of situations that would not otherwise occur. The stress and emotions of the holidays can put everyone on edge. Throw in alcohol and the inhibitions may come down completely. As does the judgment.

What might otherwise be a rational conversation can quickly escalate to the point that the police are called by one of the parties, frightened children, friends or neighbors. Once the police are called out on a domestic violence call, even when the call itself may have been an overreaction fueled by alcohol, one of the parties is going to jail.

On occasion, it seems as if who goes to jail is simply a coin toss. One way or the other, the event can have extremely costly consequences for the family. Honestly, the attorney fees alone should be a deterrent. However, there are far more serious and lasting consequences beyond attorney fees such as the possibility of permanent criminal record and lifetime domestic violence offender registration.

In addition, and as a result of the finding of domestic violence, there can be severe employment consequences. In fact, a domestic violence conviction will make one ineligible for many jobs. In New Mexico, one chief concern is the loss of security clearances. And these are not all. There are several other consequences of a domestic violence finding including extremely severe immigration consequences.

The best way to avoid these outcomes is to avoid one of the primary causes which is over-drinking. If you cannot drink without over-drinking, then don't drink. And don't put yourself and your loved ones in a situation where this might even remotely become a problem.

In other words, if you cannot control yourself around an open bar, then stay away from parties. If you cannot go out with friends to watch football without overdoing it, then watch football at home. If tensions and stress are already high around your home, then don't throw gasoline on the fire. If you cannot resist the urge to drink even though you know drinking might lead to problems, then seek counseling. And understand that if you don't go voluntarily, the court will sternly nudge you in that direction.

The holidays can be trying. The aftermath can be even more difficult. This is particularly so if you are facing domestic violence charges. The stress of the holidays will not be alleviated one bit by a criminal prosecution in the new year. In the unfortunate event that domestic violence charges are a part of your holiday season, seek the guidance of an attorney before further harm is done.

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

There are some widely held misconceptions regarding a defendant's Miranda rights. Defendants often complain that police questioned them without the presence of an attorney. What they do not understand is that a police officer may question them without an attorney so long as they are not in custody.

"In custody" is in fact fairly narrowly construed. A suspect is considered to be in custody if there was no freedom to leave. If the suspect was not free to leave and the police continue to question him or her, then this would be considered a custodial interrogation.

There is a careful distinction made by the courts between a custodial interrogation and investigative questioning. Police officers are free to ask an individual questions, even when that person is a suspect, so long as the questioning is voluntary. Once the questioning passes into the domain of involuntary questioning, Miranda rights kick in. At that point, the suspect must be read his or her rights which include the right to an attorney.

Whether or not the questioning is involuntary thereby constituting a custodial interrogation is measured by whether a reasonable person would believe he is free to terminate the questioning. In some cases, this matter is quite easily resolved. In others, the "reasonable man" would have to quite bold to simply leave the scene.

For instance, in the 2009 New Mexico Court of Appeals case of State v. Smile, the defendant pulled up voluntarily in his vehicle, voluntarily left his vehicle, and then voluntarily walked 50 feet toward the officers yelling out that he heard the officers were looking for him. He then commenced to confess a number of acts, including suggestions of future violence, sufficient for conviction for felony domestic violence under the aggravated stalking statutes. All of this was done voluntarily by the defendant almost in a bragging tone as if to say "look at all the hell I have put her through and the hell to come if she does not come around." Needless to say Mr. Smile was convicted of aggravated stalking and his Miranda appeal was denied.

Contrast this to the 1998 New Mexico Supreme Court case of State v. Munoz. In that case, the defendant, as a suspect in a murder case, was taken by FBI investigators from his home in an officer's vehicle. The defendant was driven a mile or so from his home and questioned for an hour and forty minutes by the FBI officers. He ultimately confessed to the crime. The Court in Munoz found that despite the nature of the questioning, it remained strictly voluntary. The defendant was free to terminate the questioning and exit the vehicle or in the alternative not get in the vehicle to begin with. As such, the questioning was voluntary and not a custodial interrogation. There was therefore no obligation to advise the defendant of his Miranda rights and his confession was fully admissible.

In either case, the defendants in both the Smile and Munoz cases would have done well to shut up and ask for an attorney. In fact, any suspect or defendant would be well to shut up and ask for an attorney. It is a risky gamble to assume that confessions made to police will somehow be excluded due to Miranda violations. In fact, such evidentiary exclusions are rare. So once again, defendants should "shut up and ask for an attorney." There is certainly no harm there. It is a constitutionally protected right!

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

A charge of domestic violence in New Mexico is always very serious. There are numerous and severe consequences for a domestic violence conviction. A charge of for felony domestic violence steps up the seriousness and the possible consequences.

Most domestic violence is charged as a misdemeanor. As a misdemeanor, the maximum possible jail time is one year. Once a case is charged as felony domestic violence, the penalties are greatly enhanced beginning at 18 months possible prison time on a 4th degree felony, 3 years on a 3rd degree felony, 9 years on a 2nd and 18 years on a 1st degree felony.

As a felony, the prosecutors are typically much more aggressive in prosecution as well. For instance, in minor misdemeanor domestic violence where there are no injuries or weapons, the prosecutor will not pursue the alleged victim's cooperation quite as aggressively as in a felony. In a felony domestic violence where there are injuries, weapons or other felonies involved, the prosecutor or district attorney will often be significantly more persistent in tracking down the alleged victim and getting the alleged victim to court for trial.

There are a number of ways to charge felony domestic violence. Perhaps the most common is aggravated assault against a household member which is classified as a fourth degree felony. This charge requires, "(1) unlawfully assaulting or striking at a household member with a deadly weapon; or (2) willfully and intentionally assaulting a household member with intent to commit any felony."

The weapons portion seems straightforward enough. However, this language can be broadly construed by the prosecutor. The mere presence of some deadly weapons such as a knives or guns even in the absence of a threat may trigger this charge. In addition, the term deadly weapon itself may be stretched to include otherwise innocuous items depending on the circumstances and the alleged intent of the defendant. And then of course the construction of "intent" is always a slippery matter.

The second part of the definition of the offense can be even more perplexing and frustrating to defendants. The "intent to commit any felony" covers a lot of ground. It is not uncommon to see the alleged facts stretched to logical extreme in order to meet the requirements of this element. Though there are countless ways this charge might arise, the most frequent are kidnapping and false imprisonment. These are topics unto themselves but suffice it to say that the commonly held definition of these terms is frequently only remotely related to the facts of a particular case.

In short, there are countless ways to arrive at felony domestic violence charges. The basis for a felony domestic violence charge is most often clear from the alleged facts. On other occasions, the charge can be quite a stretch from the facts. Unfortunately, however one gets there, the charges are very serious and the possible consequences quite severe.

Collins & Collins, P.C.
Albuquerque Attorneys

Stalking is a common domestic violence charge in New Mexico. The definition of stalking under the New Mexico statutes is fairly broad allowing prosecutors great latitude in bringing stalking charges.

Under the statute, stalking is defined to include any of the following acts on more than one occasion:

1) following a person in a place other than the residence of the alleged stalker, 2) placing another under surveillance by being present outside the person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence e of the alleged stalker, or 3) harassing another person.

Each and every element of the definition can be read very broadly to include some fairly innocuous behavior. A first time stalking offense is a misdemeanor. Under the prior law, a 3rd offense was a 4th degree felony.

However, due to the growing concern with domestic violence, the law was amended in 1997 to make a second offense a 4th degree felony. In addition, aggravated stalking may be charged for knowingly violating a protective order or no contact order.

Aggravated stalking is also a 4th degree felony. Aggravated stalking consists of knowingly violating protective order, violating a no contact order under conditions of release, stalking while in possession of a deadly weapon, or stalking a person under 16 years of age.

A 4th degree felony carries very serious penalties with possible jail time of 18 months and fines up to $5000 for each count. Most prosecutors will charge the offense of aggravated stalking only in cases involving real and serious danger to a victim. Others may err on the side of caution and charge it whenever the statute allows. Then there are those prosecutors that will charge everything conceivably possible under the alleged facts in order to gain strategic advantage. And felony charges most definitely place enormous plea pressure on a defendant due to the great risks associated with conviction.

To avoid any risk of charges for aggravated stalking, a person under a protective order or no contact order should have absolutely no contact with the alleged victim of any kind. This means avoiding contact even when the alleged victim initiates the contact. Charges under these circumstances are far too common.

The statute reads that a mutual violation "may" constitute a defense. Thus, a mutual violation is not an absolute defense. Nor does a mutual violation prevent the charges from being filed.

In short, it is highly inadvisable to test the boundaries of the statute. In a case of alleged domestic violence or stalking, the defendant should either stay away from the victim, or get the protective order or no contact order lifted. Any other course of action is extremely risky carrying very serious felony consequences.

Collins & Collins, P.C.
Albuquerque Attorneys

Many New Mexico courts, including Albuquerque's Metropolitan Court, offer a domestic violence early intervention program for first time offenders. In order for a candidate to enter the program, the defendant, district attorney and presiding judge must all agree to a referral to the Early Intervention Program.

Assuming that the case is referred to the Early Intervention Program, the criminal case is stayed and is now basically in limbo. The case is taken off the presiding judge's criminal docket and transferred to the judge who oversees the Early Intervention Program.

An Early Intervention Program staff member interviews the candidate to ensure that the program is a good fit. The staff member is interviewing the person for two primary reasons. First, it must be determined that the person is voluntarily entering the program. Second, the defendant must admit some wrongdoing and that counseling would be beneficial.

An admission of wrongdoing is not the same as admitting guilt. Neither is it admitting to the allegations of the alleged victim. It is simply an admission of some wrongful behavior which would indicate and benefit from counseling.

On the other hand, a person who denies any wrongdoing at all is not a good candidates for the program. In the absence of some admission of wrongful behavior and the need to change the behavior, the defendant will not be admitted to the program.

Admission to the program carries with it a minimum of 6 month of supervised probation. While on probation, the person must comply with the a number terms. The standard terms include no further violations of law, no new domestic violence charges, no drugs or alcohol, and the completion of counseling. In addition, the individual must meet with his or her probation officer twice a month for the first 90 days. Depending on progress, this may be reduced to once a month after 90 days.

The goal of the program is for people to develop new relationship skills. As such, the most important part of the program is the completion of counseling. Counseling is provided by private sector domestic violence counseling programs authorized by the Court.

It is said that Domestic Violence is based on power and control not necessarily anger management. Physical abuse, manipulation, verbal abuse and demeaning comments are all forms of degrading and abusive uses of power and control often indicating the presence of and/or risk of domestic violence. Students are taught empathy, personal boundaries and communication skills to prevent future incidents.

The program has a high success rate due in part to the admission requirements. The program has a graduation rate of about 90% and a recidivism rate of only 8%. Not only does the individual benefit from counseling thereby avoiding future charges of domestic violence, completion of the program results in a dismissal of the charges. The value of avoiding conviction and the consequences of a domestic conviction cannot be overstated.

Collins & Collins, P.C.
Albuquerque Attorneys

The 6th Amendment's confrontation clause is crucial in criminal trials because it allows defendants to have a fair trial which the framers spelled out in the Constitution of the United States. The 6th Amendment of the Constitution protects an individual's right to confront their accuser at trial in a criminal case.

The confrontation clause bars the admission of hearsay evidence unless the out of court declarant testifies at trial. In other words, the statements of a witness or alleged victim cannot be admitted into court without the witness' or alleged victim's in-court testimony.

This is particularly important in domestic violence cases. When an alleged victim accuses a person of domestic violence, the alleged victim's and any other witness' statements can only be used against the defendant if they show up to court and testify. There are few exceptions to the rules prohibiting hearsay testimony. These rules would rarely apply in the typical domestic violence case.

At trial, the defendant has a right to cross examine the alleged victim and other State witnesses to determine the truthfulness of their statements. When an alleged victim does not show up to trial, the State usually does not have the necessary evidence to present their case.

By only presenting evidence of a crime without actually having a victim appear in court, the prosecution is attempting evidence based prosecution. Evidence based prosecution which is often attempted by prosecutors in domestic violence cases faces many challenges due to hearsay objections and confrontation issues under the 6th Amendment.

For example, prosecutors will frequently obtain the alleged victim's 911 call. As part of evidence based prosecution, the State may attempt to use the 911 tapes to prove that the defendant committed the alleged act of domestic violence such as battery or assault on a household member. In doing so, the State may argue that this is public record and try to admit this evidence.

The State is attempting to recreate the drama of the alleged incident to a jury through the 911 call. The State is also attempting to illicit statements from the 911 call which may implicate the defendant in wrong-doing. However, once the 911 operator begins to engage in any type of questioning, the statements are then testimonial hearsay and the confrontation clause bars this evidence from use at trial. Perhaps just as problematic is the identification of the caller. This issue would be raised as an objection for failure to authenticate the caller's identification.

If the State's only case is evidence based prosecution without eyewitness testimony, the State has an uphill battle when presenting its case. The prosecution will have a hard time overcoming the evidentiary objections to hearsay and authentication.

Collins & Collins, P.C.
Albuquerque Attorneys

Legal situations like domestic violence or DWI can have far-reaching consequences. Aside from the attorneys fees, court costs, fines and possible jail time, a potential military recruit may be denied enlistment in the armed forces if they are currently dealing with or have been involved in certain legal situations.

The military is not meant to be rehabilitative in nature. Gone are the days when the military was a possible escape from criminal prosecution. Prior to entry into the military, an initial screening process is conducted in an attempt to minimize the likelihood of receiving recruits who are disciplinary problems or who may become security risks. What's more, there are some legal situations, including domestic violence, which may exclude a potential recruit from the ownership and use of firearms. Consequently, the recruit would not be able to perform job functions requiring the use of weaponry.

Military recruiting offices may run background checks on potential recruits, including police and court checks. It is best to disclose any legal situation, past or present, up front. Failure to fully disclose may itself be grounds for denial.

During the interview process, the recruiter will ask about arrests, current or dismissed charges or convictions, as well as probation, incarceration or parole periods. In addition, they will ask about juvenile criminal histories, including proceedings that were either sealed or expunged. They will even ask about traffic violations.

In some cases, a waiting period may be required before a recruit can enlist. In other situations, a waiver can be requested that might permit enlistment despite the potential disqualification. Each applicant is considered on a case by case basis.

Each branch of the armed forces may have slightly different regulations; however, some of the regulations that the U.S. Army follows involve:

• considering an unpaid paid parking ticket a disqualification as a pending charge;

• considering multiple charges for the same event individually;

• requiring a waiver in several situations regardless of how the case was decided, including domestic violence situations and serious criminal misconduct, even when the case was decided in the potential recruit's favor;

• discharging anyone who conceals a legal situation that requires a waiver, considering this "fraudulent enlistment".

In situations where a waiver may be permitted, it is up to the applicant to provide proof that they have overcome the disqualification and that being accepted would be in the best interest of the military. Court documents, evidence of rehabilitation and even letters of recommendation may be required.

There are certain legal disqualifications that cannot be overcome by a waiver. Some of these include intoxication at the time of application, ongoing alcoholism or drug abuse and a history of psychotic disorders. However, recruiters are more than willing to sit down with an applicant and review any potential legal disqualifications. Again, each applicant is considered on a case by case basis.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

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