Albuquerque Criminal Lawyer Blog

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