Albuquerque Criminal Lawyer Blog

The first and among the most serious consequences a person arrested for DWI/DUI will face is the revocation of their driving privileges through Motor Vehicles Division (MVD). In fact, a DWI driver has only 10 days from the date of arrest to send in a Request for License Revocation Hearing to MVD. Failure to send in the request results in automatic revocation.

There is much confusion with DWI drivers about the jurisdictional issues between the MVD revocation and the criminal DWI proceeding. In fact, the two are completely separate. In other words, you can win at the MVD hearing and still lose at trial in the criminal proceeding. Likewise, you can lose at the MVD hearing and win at trial.

Both MVD and the criminal court have the authority to revoke the DWI offender's driving privileges. The length of the revocation depends on the number of DWI convictions and whether the charge was aggravated DWI.

In addition to the overlapping jurisdiction over driving privileges, the period of revocation may be different between MVD and the criminal court. For example, on a first time simple DWI (non-aggravated DWI), the revocation by MVD is 6 months. Upon conviction in the criminal proceeding, there is a mandatory one year interlock requirement.

With both the MVD revocation and the interlock requirement imposed as a result of the criminal conviction, driving without an interlock and an interlock license results in criminal charges for driving on a revoked license. A conviction for driving on a revoked license carries up to one year in jail.

The criminal court may impose he revocation from the time of the conviction. The MVD hearing often occurs much earlier than the criminal trial since it must be set by law within 90 days of the arrest. The court may, but does not have to, allow for credit for the MVD interlock period. Therefore, the actual revocation and interlock period may stretch beyond one year even on a simple first DWI.

Finally, the burdens of proof are different between the two hearings. The recent case of Glenn v. MVD has significantly lessened the burdens at the MVD hearing. Under the Glenn case, the state need not even prove the stop was legal. As a result of this case, the MVD hearing is even more formality than before since the State need only show the hearing was held within 90 days of arrest and the driver blew .08 or above or refused to blow.

The burdens are no better in the criminal proceeding. The State need only show (argue) that the driver's ability to drive was "impaired to the slightest degree" by alcohol. This is really no standard at all. On the upside, the State is supposed to show that the driver was legally stopped. This again is a fairly low burden since a reason can always almost always be found for pulling over a driver.

The bottom line is that a DWI seriously jeopardizes driving privileges. The driver and his or her attorney must run a gauntlet of hearings where the burdens are seriously stacked against them. In fact, it is pretty rare that a DWI arrest will not result in the revocation of driving privileges in some fashion unless the officers simply do not show up to fight.

And the moral to the story is "Don't Drink and Drive." It is not worth it.

Collins & Collins, P.C.
Albuquerque Attorneys

The holiday season is a joyous time of year when people get together and celebrate. It's important to remember if you're going to drink, do it responsibly. New Mexico is serious about keeping drunk drivers off the road. Law enforcement is aware people will be drinking and driving during this time of year so they are quite busy, by performing super blitzes and added DWI checkpoints.

This is something to keep in mind this holiday season as it happens far too frequently good people get arrested for DWI. When going to holiday parties make sure there is a designated driver if you plan to consume alcohol. Any alcohol!

This is especially important if you bring the kids to the holiday party. When a person is charged with DWI and a child is in the car, the driver will routinely face a charge of negligent child abuse in addition to the DWI charge.

Negligent child abuse is a third degree felony. Typically officers will charge one count of felony child abuse if there are one or more children in the vehicle. However, it is possible that a separate count of felony child abuse could be charged for each child.

DWI charges are disastrous in their own right. Felony child abuse is far worse. For first time offenders, it is a third degree felony. For second and subsequent offenses, it is a second degree felony. In the event the child is injured, it's a first degree felony.

If convicted of DWI, it is fairly simple to get a conviction of felony child abuse. The reasoning behind the charge is adults are putting children in a situation that may endanger the child's safety. The consequences of a felony conviction are severe. A basic sentence for a third degree felony is imprisonment for three (3) years and a fine not to exceed five thousand dollars ($5,000). It gets far worse for 2nd and 3rd degree felonies. These charges and penalties are in addition to the DWI fees and fines which are steep in themselves.

Have a happy and safe holiday season with your family. If you drink, do not drive!

Collins & Collins, P.C.
Albuquerque Attorneys

A recent study from from the Office of Applied Studies of the United States Department of Health and Human Services shows that drinking and driving in New Mexico has declined by 3.5% in recent years. The National Survey on Drug Use and Health found that 10.4% of those New Mexico drivers surveyed admitted to driving while intoxicated (DWI) during the period of 2006 to 2009.

The number of admitted New Mexico drunk drivers fell from 13.9% for the last survey period of 2002 to 2005. This is a significant drop. An Albuquerque Police Department spokesperson attributed the decrease to continued public education on the issues of New Mexico DWI. The constant messaging from New Mexico Law Enforcement and the Department of Transportation clearly have had an effect. The "You Drink, You Drive, You Lose" campaign certainly must have gotten the attention of many.

Due to the limitations on television time and perhaps viewer attention, the television campaign does not fully set forth the many ways in which drunk drivers lose. The consequences of DWI are severe. Indeed, there are at least 10 really good reasons why you should not drink and drive:

1. Arrest and a at least one night in jail.
2. Automatic loss of New Mexico driving privileges for a minimum of 6 months.
3. Mandatory use of ignition interlock device for a minimum of 6 months even if not convicted for the DWI.
4. Automobile seizure in many localities such as Albuquerque.
5. Mandatory one year criminal probation which includes at a minimum of counseling, community service, alcohol and drug abuse screening, DWI school, Victim Impact Panel and again, an ignition interlock device.
6. Mandatory jail time for repeat DWI and/or Aggravated DWI.
7. Fines, court costs, and very expensive attorney fees that increase with each successive DWI.
8. Minimum of 6 months in jail and up to 18 months in prison time for a 4th DWI charged as felony DWI. It gets much worse from there.
9. Felony child abuse charges if you have your children or other minors in the car. A minor is an individual under the age of 18. This might include the 17 year old girl or boyfriend of your 18 year old child. No kidding!
10. Last but not least, you get your not too flattering portrait published in the Albuquerque Journal.

There are many other reasons as well depending on the individual including possible consequences for employment, security clearances, child custody and time-sharing and immigration status.

So when they say "You Drink, You Drive, You Lose," it seems they really mean it.

Collins & Collins, P.C.
Albuquerque Attorneys

Many mistakenly believe it is in their best interests to refuse the breath alcohol test (breathalyzer) on a New Mexico DWI stop. The fact is that refusal has some pretty serious consequences with little possible trial benefits.

Refusal to take the breathalyzer results in some rather harsh consequences. First, a refusal results in an automatic one year drivers license revocation for a first time DWI under the New Mexico Implied Consent Act. Second, a refusal results in a charge for aggravated DWI which carries mandatory jail time for conviction. The mandatory jail time varies with the number of prior DWI convictions. For a first time DWI offender, an aggravated DWI carries 48 hours mandatory jail. It gets increasingly more severe for subsequent convictions.

So why the misconception about the refusal's benefits at trial? A .08 breath alcohol score results in a presumption of driving while intoxicated which is hard to overcome. A .16 or above is aggravated. Some believe that if there is no breath score, then it is harder to prove driving while intoxicated. This would make much more sense if the standard in New Mexico was not "impaired to the slightest degree." In other words, the true standard for the prosecutor to meet is whether or not alcohol impaired the driver's ability even to the slightest degree. This provision was in fact inserted in the statutes to address those drivers that refuse the breathalyzer. Unfortunately, its use has been significantly broadened and is used now routinely on drivers below .08.

So now the driver who has refused has suffered much more serious consequences. In addition, the standard is impaired to the slightest degree which is a very low standard if any standard at all. The jury is presented with testimony that the driver was in fact drinking which is typically not too hard to prove. The jury is also presented with a defendant driver who refused the breath alcohol test. Jurors who often assume guilt from the outset of trial expecting the defendant to prove his or her innocence now have a fairly easy logical conclusion on which to hang their prejudice. They might and do ask, if he wasn't drunk then why did he refuse the test?

Don't forget that the State still has the field sobriety tests on which to base their arguments. Police officers now often video the field sobriety tests, and this video is crucial evidence in the case. Even without the video, the officers will document each and every misstep on the field sobriety tests. Make no mistake, these tests are a challenge under the best of circumstances. The circumstances are hardly ideal in most DWI stops.

In conclusion, refusing the breathalyzer carries substantial risks with questionable value. Despite the myths, there is no fool proof strategy to beat a DWI charge except to avoid drinking and driving in the first place.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico continues its crackdown on DWI. In keeping with its goals, the consequences for DWI conviction are growing increasingly harsh in New Mexico. This is so for all levels of offenders, including first time DWI offenders.

In the past, and under sentencing for most crimes other than DWI offenses, a person placed on probation is given credit against his or her total sentence for all time served on probation. In other words, if a person is placed on one year of probation and violates 6 months in, he or she is exposed only to 6 months jail time on the remaining term of the sentence.

In the case of DWI offenders, the State of New Mexico has taken a fairly harsh position. For DWI offenders, there is no credit against the total deferred or suspended sentence for time spent on probation. As such, in the prior example, if a person violates 6 months in on a one year term of probation for a DWI offense, he or she is facing the full one year jail sentence.

The statutory language of NMSA §66-8-102(S) is clear stating in part, "the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation." The statute applies to all levels of DWI offenders including first time offenders. Lest anyone believe otherwise, the New Mexico Court of Appeals in State v. Ordunez states "Subsection (S)...is applicable to all levels of DWI offenders who violate probation..."

Subsection (S) was addressed in the State v. Ordunez in the context of jurisdiction following the lapse of probation. The primary concern in Ordunez was whether or not the court had lost jurisdiction over the defendant to implement the harsh provisions of Subsection (S).

In Ordunez, the defendant pled guilty to felony DWI. He was sentenced to 2 ½ years, with all but two suspended. This means he was only to serve 6 months in jail with 2 years of probation following release.

Mr. Ordunez violated his probation in the last month of the 2 year probationary period. The State moved to revoke his probation seeking the full two year sentence term. Fortunately for Mr. Ordunez the case did not get to court prior to the expiration of his 2 year probation period.

Because his probationary period had lapsed prior to the probation revocation hearing, the district court held that the court had lost jurisdiction over Mr. Ordunez. The New Mexico Court of Appeals in State v. Ordunez agreed. As such, Mr. Ordunez was spared the consequences of the application of Subsection (S) to his violation of probation.

Mr. Ordunez dodged a bullet through sheer luck, overloaded district attorneys and overcrowded court dockets. In light of the ever increasing penalties for DWI, a DWI offender would do well to avoid even the smallest technical violations of probation. It is not worth the risks. And, it is unlikely that most will be so lucky as Mr. Ordunez in the case of motivated prosecutor and a receptive judge.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent New Mexico Court of Appeals case portends possible targeting of DWI/DUI passengers for prosecution in DWI/DUI cases, particularly those involving accidents with injuries.

In State v. Patrick Marquez, the defendant was charged with and pleaded to 2 counts of homicide by vehicle and 3 counts of injury by vehicle. Remarkably, Mr. Marquez was not the driver of the car but the passenger. Mr. Marquez entered a conditional plea filing an appeal on whether or not there was any such crime as accessory to homicide by vehicle. The Court in Marquez found that there was.

The facts are pretty straightforward. Mr. Marquez and his friend Leo Lucero spent the night drinking together going from one bar to the next as bars successively refused service due to their high levels of intoxication. Finally, Mr. Marquez purchased a 12 pack of beer and the two took to the road to continue their evening of drinking. Mr. Lucero plowed into the back of a passenger van killing 2 and badly injuring 5 of the occupants of the van.

DWI/DUI resulting in death or injury has always carried possible charges for homicide by vehicle or great bodily harm by vehicle. However, this is the first case that has reached the appellate court where a passenger has been charged as an accessory under the Motor Vehicle Code §66-8-120 which reads in part:

"Every person who commits, attempts to commit, conspire to commit or aids or abets in the commission of any act declared herein to be a crime, whether individually or in connection with one or more persons or as a principal, agent or accessory, shall be guilty of such offense..."

It remains to be seen whether this case spells a trend for prosecution of DWI/DUI passengers in cases of injuries or death. The scope of §66-8-120 is also unclear. The facts in this case and the behavior of the defendant were pretty egregious. However, the basic fact pattern is not that uncommon with a passenger knowingly getting into a vehicle with an intoxicated driver. The language of §66-8-120 does not limit its scope to cases of death or great bodily harm. Instead, the language says that a passenger who knowingly gets in a car with a drunken driver is guilty of all offenses under the Motor Vehicle code committed by the driver. This could arguably include the simple DWI/DUI charge even in the absence of an accident.

In a state where prosecutors and police formerly charged drivers for DWI while they were sleeping in their vehicles prior to intervention of the New Mexico Supreme Court, it might be expected that there will be prosecutors that push the bounds of this ruling. Until we hear from the Supreme Court on this case or the legislature places some limitations on the language of §66-8-120, would be passengers to a DWI would be well advised to find alternate transportation and to encourage their drunken friend to do the same. As a matter of fact, that might just be a good policy generally.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The State Department has recently dramatically redefined grounds of inadmissibility for mental and medical disorders. The new State Department guidelines could result in admissibility of those convicted of DUI/DWI. Thus, as is many criminal matters, the immigration consequences may now greatly outweigh the penal consequences. The results may be particularly harsh for first time simple DUI/DWI offenders who in New Mexico face no jail time at all.

The changes in the guidelines focus on substance-related disorders and physical or mental disorders associated with harmful behavior. Mere existence of a physical or mental disorder will not alone trigger inadmissibility. The disorder must be accompanied by associated harmful behavior.

The harmful behavior fitting the criteria for inadmissibility has been broadened to include DUI/DWI. In the past, DUI/DWI did not affect immigration status since it constituted neither an aggravated felony or a crime of moral turpitude. The redefined guidelines have vastly worsened the possible immigration consequences of a DUI/DWI.

Alcohol abuse is expressly defined as a medical condition that could lead to inadmissibility. Though alcohol abuse alone does not necessarily make a visa applicant inadmissible, alcohol abuse associated with other harmful behavior may. Associated harmful behavior would include any threat to the property, safety or welfare of the foreign national or others. DUI/DWI is specifically included within the definition of harmful behavior.

As a result, any visa applicant will now be referred to panel physicians for evaluation if the applicant has been arrested once within the past 5 years, or twice within the past 10 years for an alcohol related offense. This would include arrests for DUI/DWI. It could also include other alcohol related arrests.

Visa applicants would be well advised to seek the services of an immigration attorney prior to seeking admission to the United States. Perhaps more importantly, any immigrant with prior DUI/DWI or other alcohol related convictions should consult with an attorney prior to any trips outside the U.S. since reentry may be barred under the new State Department guidelines.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

New Mexico takes DWI extremely seriously and for good reason. New Mexico has for years ranked among the national leaders in DWI accidents and fatalities. Unfortunately, many DWI fatalities in New Mexico and other states involve child passengers.

There is a growing trend in New Mexico and other states to charge DWI drivers with child abuse when children are present in the car at the time of the DWI offense. In New Mexico, parents charged with DWI with their children present often find themselves charged with Abandonment or Abuse of a Child, a third degree felony carrying up to 3 years in prison for the first offense.

The law is intended to protect children from the dangers of drunken driving. The law is admirable in its intentions. However, the way the law is enforced can lead to some rather draconian results. For instance, there is a trend across New Mexico, particularly in Albuquerque, to charge drivers with DWI at breath alcohol levels below, often well below .08. Not only are drivers being charged at these levels, they are regularly being convicted. The conviction of DWI at these levels would carry with it possible conviction for Abandonment or Abuse of Child when children were present.

It is impossible to identify any standard in DWI arrests and prosecution in cases involving breath alcohol levels below .08. instead, the prosecutor need only show that the driver's ability to drive was "impaired to the slightest degree." Your guess is as good as mine as to what the this means other than you are impaired if the officer, sometimes right out of the police academy, says you are impaired. This is no standard at all and when New Mexico parents may face felony prosecution for child abuse for a glass of wine or two with dinner, lack of standards is unacceptable.

There was legislation presented in the last legislative session to redress the problems with such a vague standard. Unfortunately, no action was taken on the bill. Worse still until the standard is addressed, families could be torn apart by overly aggressive and misguided enforcement of DWI laws. Many would argue that no alcohol at all is acceptable before driving. Perhaps this is a valid position but it is not the law. The law is meant to deter driving impaired by alcohol.

If New Mexico's intent is to completely prohibit alcohol and driving, then pass a law to that effect. At least then drivers will know that it is against the law to drink even a little and get behind the wheel. What is not acceptable is leaving it at the sole discretion of the officer to decide whether or not you are impaired despite a low breath alcohol level, exposing law abiding citizens to DWI and child abuse charges. The legislature needs to act one way or the other and it needs to hear your voice no matter which side you are on. Contact them now.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Though New Mexico Motor Vehicle Division has no authority to revoke an out of state drivers license, a New Mexico DWI may still impact an out of state license. Many states such as Arizona will give the New Mexico order of license revocation full faith and credit for the period of revocation. As a result, an out of state driver may lose driving privileges in his or her own state as result of a New Mexico DWI.

New Mexico MVD will often, though not always, report the DWI to those states that recognize its orders of revocation. As a result, the out of state driver though still in possession of his or her license may find that their driving privileges have been revoked or suspended in their own state. The issue most often comes up when the driver has to renew his or license.

In order to reinstate their license in their home state, they must jump through some hurdles at the New Mexico MVD. However, the hurdles are substantially less for out of state drivers than New Mexico drivers. Under New Mexico DWI laws, a revocation carries a mandatory 6 month interlock license and interlock device on the driver's vehicle. The interlock laws do not typically apply to other states as most other states have no comparable laws. This is changing with National Ignition Interlock legislation gaining support.

Since the interlock laws do not apply to most other states at this time, once the 6 month revocation period has expired, the out of state driver need not prove the 6 month interlock requirement has been met as is required of New Mexico drivers. The driver need only provide proof to New Mexico MVD that he or she is a resident of another state and pay a $100.00 reinstatement fee to New Mexico MVD. This should provide clearance of the out of state license so that it will be unrestricted in the home state.

Keep in mind that the MVD hearing and license revocation is completely separate from the DWI criminal case. Therefore, even if the driver wins his or her criminal case or the case gets dismissed, the MVD penalties still fully apply. This comes as a great disappointment to many no matter how many times it is explained as it just seems manifestly unfair and unjust that the MVD revocation stands despite the dismissal of the underlying DWI. Unfortunately, it is simply the way the law works.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Ron Bell was arrested and charged with DWI on a blood alcohol score of 0.0. That is not a typo. He was charged under New Mexico's impaired to the slightest degree standard despite the fact that he had no alcohol in his system.

The charges have been dismissed against Ron Bell. The fact is the charges should have never been filed to begin with. Nor should the many under the limits DWI/DUI cases that are routinely charged in New Mexico exposing the under the limits drivers to the full consequences of a DWI/DUI conviction despite the fact that they were under the .08 legal limits. The case against Ron Bell perfectly illustrates the possible problems with the impaired to the slightest degree standard.

Ron Bell's face is etched in the minds of every man, woman and child in the Albuquerque metropolitan area. You can hardly leave your home without seeing one of his advertisements. The arresting officer most certainly knew Ron Bell. A 0.0 blood alcohol reading resulting in a DWI arrest suggest something other than a legitimate suspicion of DWI.

Perhaps the officer doesn't like Ron Bell or his advertisements. Perhaps he doesn't like lawyers. Lots of people don't. There are a number of illegitimate reasons that could have led to the arrest of Ron Bell on a 0.0 blood alcohol reading. Impaired to the slightest degree gives officers absolute discretion in making an arrest, for both legitimate and illegitimate reasons. The lack of any real standard can lead to abuse. An arrest on 0.0 at the very least raises the question of motive.

The question of motive could and does come up frequently in below the .08 limits DWI arrests. What if it is not lawyers an officer does not like but blacks, Hispanics, whites, women, gay men or women, people with the wrong bumper stickers, people that voted for Obama, people who voted McCain, people with purple hair or people that just plain rub the cop the wrong way. In any of those cases as happened here, the officer can make a DWI arrest despite the lack of any real impairment based upon any number of contrived basis. Unfortunately, unlike Ron Bell, most people faced with a similar wrongful arrest lack the resources to fight the charges. Instead, the courts routinely convict these people. After all, we live in a state where the supreme court had to stop the practice of arresting people for sleeping while intoxicated.

In short, impaired to the slightest degree is no legal standard at all. It is whatever the officer says it is. In the best light, it is not fair to officers to force them to make these decisions. In the worst, it is most unfair to subject drivers to the whims of each individual officer. The great majority of officers are honest. Well defined legal standards govern those few on both sides of the law who are not.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court reversed the Courts of Appeals ruling from last year which legitimated DWI/DUI charges against individuals who were sleeping in their vehicles effectively taking the driving out of drinking and driving. The Supreme Court in State v. Simms recognized the absurdity of the prior ruling.

The New Mexico Court of Appeals in State v. Simms had found that a defendant was in control of the vehicle and therefore subject to charges of DWI/DUI. The court found this despite the fact that the defendant was asleep in the vehicle and the keys were not in the ignition. The court reasoned that the defendant could have awoken and drove the car at any time. The court ignored the fact that he had gone to sleep for the very purpose of avoiding driving while intoxicated.

The prior ruling had a number of problems for both well intentioned drivers and the public at large. First, there was no intent requirement to show that the driver in fact had the intention to drive the vehicle. To the contrary, the facts suggested the opposite that the driver was sleeping off the alcohol to avoid driving. This raises the more important point which is that the law as construed by the district court and the appellate court actually had the affect of encouraging drinking and driving. After all, the risks of being detected and arrested in a bar parking lot while sleeping in a vehicle are exponentially higher than the odds of getting pulled over while drinking and driving. In addition, the prior interpretation could have disastrous consequences during the New Mexico winters when a driver is forced with the decision of sleeping outside the vehicle or driving home intoxicated. The prior interpretation and execution of the law was ludicrously opposed to public safety.

The Supreme Court in State v. Simms stated that there must be intent to drive. In effect, there can no longer be a generalized intent to drive as evidenced by proximity to the vehicle. Neither can the issue be couched entirely in the terms of control of the vehicle. Instead, it must be shown that the driver intended to drive the vehicle while intoxicated. The Court in essence adopted the public policy rationale of allowing drivers to sleep off their intoxication. The court stated that the DWI/DUI laws did not have the intention of prohibiting people from simply entering their vehicles. This is particularly the case when a driver is taking shelter from the elements and from the risks of driving intoxicated.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Driving privileges can be revoked or suspended in New Mexico for a variety of reasons. The two most common are DWI/DUI and non-payment of child support. A DWI/DUI arrest almost inevitably results in the revocation of a DWI/DUI offender's New Mexico driving privileges. The revocation is virtually automatic with minimal requirements of the state at the MVD License Revocation Hearing. In the case of first time DWI/DUI, the MVD driver's license revocation is for 6 months. For subsequent DWI/DUI offenses, the revocation is for 1 year. Suspension for non-payment of child support is not as common but used frequently in cases of habitual child support delinquency.

Driving on a Revoked or Suspended License is taken very seriously in New Mexico no matter what the basis for the revocation or suspension. By way of example, a first time DWI/DUI conviction carries a maximum of 90 days in jail. There are no mandatory jail times so that a simple non-aggravated first time DWI/DUI almost always results in First Offender Program with no jail time. By contrast, a first time conviction for Driving on a Revoked or Suspended License carries up to 1 year in jail. In addition, there is a mandatory jail time of 4 days. The mandatory jail time goes up to 7 days if the revocation or suspension was the result of a DWI/DUI. The mandatory jail time is prescribed by statute. The sentence may not be suspended, deferred or taken under advisement. The judge is not allowed to deviate below the minimum sentence no matter what the circumstances. In other words, it is does not matter how or why it happened, nor does it matter that the person is a model citizen in every other way. Upon conviction, the offender is going to jail for the statutory minimum.

Parents whose license are suspended for non-payment of child support often fail to fully appreciate the seriousness of their situation. Consequently, they are very surprised when criminal charges for driving on a revoked or suspended license are brought against them. They are even more shocked to learn that they are facing up to one year in jail and a 4 day minimum jail sentence for conviction. In case of license suspension for non-payment of child support, it is critical that the person work out a compromise with Child Support Enforcement for the reinstatement of driving privileges. A New Mexico divorce and family law attorney will be able to work through that process.

In cases where the license is revoked as the result of a DWI/DUI, it is critical that the person obtain an interlock license and an interlock device on his or her vehicle. The person should not drive any other vehicle during the period of revocation. Should the revoked driver be pulled over for any reason, the officer will check the driver's license status and a revocation will be shown. A failure to present a valid interlock driver's license and/or the absence of an interlock device will result in immediate arrest and charges for Driving on a Revoked License. Due to severity of these charges for a DWI/DUI revoked driver, it important to seek the guidance of a New Mexico DWI/DUI Attorney.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The consequences for DWI/DUI conviction are severe. For repeat offenders, a conviction results in certain jail time. How much jail time is largely dependent upon the behavior of the DWI/DUI offender following arrest.

One does not have to look far to figure out why the consequences for repeat DWI/DUI offenders are growing in severity. Just today, the Albuquerque Journal had an article listing several tragic DWI/DUI accidents that have occurred since February. Of the 6 DWI/DUI accidents listed, 4 involved deaths of innocent victims. Keep in mind, the article only listed accidents since February of this year. Judges and prosecutors have far longer memories of the many tragic and often fatal DWI/DUI accidents that occur each year in New Mexico. According to the DWI Resource Center, there have been an average of 190 deaths per year from 2000 to 2009 keeping New Mexico in the top 10 across the country for these figures over most of this period.

Neither judges nor prosecutors have much patience for repeat offenders in this environment. As a result, repeat offenders have an uphill battle at sentencing. However, there are several things that can be done to help one's cause when facing this situation.

First, STOP DRINKING. PERIOD. This is not optional. Clients say all the time that they do not have a drinking problem. Trust me when I tell you the judge and prosecutor disagree. A first time DWI/DUI indicates a drinking problem. A subsequent offense indicates a serious problem. The worst thing a repeat offender can do for his or her cause is to walk into court and deny a drinking problem.

The remaining steps all surround the first. It is easy for a defendant to walk into court and tell the judge that he or she has stopped drinking. After all, how is the judge to know any better? Unfortunately for the repeat offender, the presumptions are not on his or her side. Once convicted, there are no more presumptions in your favor. This seems too obvious to say but some believe that it is up to the prosecutor to prove they are lying. Not so, the repeat offender must prove that he or she is not.

The only way to do this is through careful documentation. Therefore, a repeat offender should at a minimum begin Alcoholics Anonymous (AA). Frequent attendance is essential, at least 2 -3 times per week. To document attendance, take a sign in sheet which can be obtained from the court or probation/pretrial services. Some AA facilities may have these on hand since many attendees are there for this very reason.

Beyond AA, a repeat offender should be in alcohol and/or drug counseling. Again, many protest that they do not have a drinking problem. In answer to this, please review the paragraphs above. A good counselor can be very beneficial at sentencing. A good counselor will provide thorough documentation of your problem as well as your progress. In addition, a good counselor will document many other aspects of your life, employment, family, character and general history that could be very helpful in minimizing your jail time. Most important, counseling shows the judge that you are serious about addressing your problem.

This gets back to the initial point of this whole exercise. A second DWI/DUI carries a mandatory 4 days of jail, a third 30 days, a fourth 6 months. After that, it gets much worse. Now for the bad news, these are mandatory minimums and judges across New Mexico are growing increasingly reluctant to allow the mandatory minimums. This is why AA and counseling from the date of arrest, not 3 days before sentencing, is so important. Judges have a great deal of latitude in sentencing between the minimum and maximum. Do yourself a favor and give the judge good reason to lean toward the minimum.

www.CollinsAttorneys.com

New Mexico was the first state to require ignition interlock devices for first time DWI/DUI offenders. Numerous other states have since passed laws requiring the devices following a DWI/DUI conviction. New Mexico Senator Tom Udall has introduced federal legislation for the requirement of the installation of an ignition interlock device for a minimum period of 6 months for any DWI/DUI conviction, including first time DWI/DUI offenders,

Many first time DWI/DUI offenders in New Mexico believe that a conviction is required for imposition of the ignition interlock requirements. In fact, no conviction is necessary for the revocation of one's driver's license and the consequent ignition interlock requirement.

Upon arrest for DWI/DUI, the person arrested is facing two different proceedings, the criminal proceeding and the MVD administrative proceeding. The Motor Vehicle Division license revocation proceeding will come up long before the criminal proceeding has come to an end. These MVD license revocation hearings are almost a formality for the revocation of the alleged DWI/DUI offender's driving privileges. The burden of proof at these hearings is extremely low requiring only that the hearing be held within 90 days of arrest, that the stop be legal and that the person blew over .08 on the breath alcohol test.

For MVD license revocation and the ignition interlock requirement, it does not matter if the alleged DWI/DUI offender later wins at trial in the criminal proceeding or even if the criminal DWI/DUI case is dismissed. In short, unlike the legislation in other states and the federal legislation introduced by Senator Udall, no conviction is required for the revocation of the alleged offender's license and the imposition of the ignition interlock requirement.

The consequences of DWI/DUI arrest on a person's driving privileges are severe. The first time DWI/DUI carries a minimum driver's license revocation of 6 months. If the driver refuses the breath alcohol test, the minimum revocation through MVD is 1 year. Subsequent offenses carry 1 year MVD revocations. The MVD hearings and revocations are completely independent of the criminal case. This can result in the actual revocation and interlock requirement greatly exceeding the 6 months proposed by Senator Udall even on a first time DWI/DUI offense.

The interaction of the MVD revocation and the revocation by the criminal court judge can be confusing. Likewise, the MVD imposed interlock requirements themselves can be both confusing and oppressive, particularly for those that do not own vehicles. These issues will be addressed in subsequent posts.

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New Mexico law does not allow law enforcement to take a blood draw without the suspect's consent. However, a blood draw may be taken upon the issuance of lawful search warrant. Likewise, in the absence of a search warrant, a suspect may not be forced to submit to a blood draw.

Blood draws are common in controlled substance cases. They also are used in DWI/DUI cases. However, it is pretty rare that an officer would order a blood draw in a DWI/DUI case. In the recent case of State v. Bullcoming, a blood draw was taken from the defendant under search warrant following the defendant's refusal to take the breath alcohol test and his refusal to voluntarily submit to a blood draw.

The Bullcoming case has importance for a number of reasons, most notably the admissibility of the blood draw report. Though the issue of the search warrant itself was mentioned only in setting forth the facts of the case, almost in passing, the issue is certainly not a trivial one. The defendant in Bullcoming was charged with aggravated felony DWI/DUI. The aggravated portion arose from the fact that the defendant was involved in an accident , and then promptly fled the scene. Once the officer tracked him down, the defendant refused the blood alcohol test, also grounds for aggravated DWI/DUI.

No doubt the result of the defendant's antics, the officer in Bullcoming took the rare step of obtaining a search warrant to obtain the blood draw. Unfortunately for the defendant, his blood alcohol level was .21, almost three times the legal limit, again an aggravating factor.

The more common response of law enforcement to a suspect's refusal to submit to the breath alcohol test is to simply note the refusal and charge the DWI/DUI as aggravated. Aggravated DWI/DUI carries significantly greater penalties than simple DWI/DUI. Thus the refusal can have severe consequences.

No matter how the blood draw is taken, whether voluntarily or by warrant, the suspect has the right to an independent test. In a situation like Bullcoming where the blood alcohol level comes in so high, the independent blood draw may serve only to bolster the results. In closer cases, the suspect would do well to obtain an independent blood draw. The independent test is free to the suspect so long as he or she did not refuse the blood alcohol test. So there is no good reason to waive this right in close cases.

The police officer should inform a suspect of the right to independent testing. If an independent blood test is merited, then the suspect should insist on the test even if the officer has not advised him or her of this right. In fact, the suspect should be quite vocal if the officer is resistant to the request for an independent blood test. As seen in the recent case of State v. Duarte, the presumptions are with the officer so that if he or she says he advised the suspect, it is taken as gospel.

In short, you cannot be forced to take a blood test without a warrant. If you are forced by warrant to take a blood test, you would be well advised in cases close to .08 (simple DWI/DUI) or .16 (aggravated DWI/DUI) to demand an independent blood test. However, in cases with very high levels, or cases that come in just below the aggravated .16 or simple .08, you may be very disappointed with your independent testing.

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