Albuquerque Criminal Lawyer Blog

The New Mexico Court of Appeals addressed the misdemeanor arrest rule in the context of a DWI arrest in State v. Reger. The misdemeanor arrest rule requires that the misdemeanor actually occur in the presence of the officer with the arrest based upon the officer's own observations. The rule is meant to protect individuals from warrantless searches based upon information from third parties. The rule raises significant challenges in DWI cases where drunk drivers are often called in on DWI tip lines.

The facts are somewhat similar to the those of the New Mexico Supreme Court case of City of Santa Fe v. Marcos Martinez. In Martinez, an anonymous caller identified the defendant and his driver's license number. The police officer traced the license to Mr. Martinez residence where the officer found him extremely intoxicated inside his home. Reger also involved an anonymous tip. Reger was found in a parking lot next to his vehicle with the hood open. In both Reger and Martinez, the defendants admitted to drinking and having driven their vehicles. Like the Supreme Court in Martinez, the Court of Appeals in Reger found that the misdemeanor arrest rule did not apply.

The court cited State v. Ochoa as follows:

In these circumstances, the officer's personal perceptions include observation of the circumstances surrounding the presence of the defendant and the vehicle, observation and smells evidencing the defendant's intoxication, and hearing what the defendant and others say. What the officer perceives supplies sufficient "facts and circumstances occurring within [the officer's] presence in connection with what, under the circumstances, may be considered common knowledge, [to] give [the officer] probable cause to believe or reasonable grounds to suspect that a crime has occurred."

The Court stated further, "We see no point in ignoring the obvious in cases where overly technical applications of the misdemeanor arrest rule could supply a tiny crack for the case to fall into." The rulings in both Martinez and Reger seem to follow common sense. In both cases, the defendants admitted to drinking and driving. Forbidding arrest in these situations would lead to rather absurd outcomes once the officer leaves the scene leaving the intoxicated driver free to go on his merry drunken way.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The issue of whether or not the police offered an independent blood test comes up fairly regularly. Often times, those arrested for DWI/DUI do not remember being offered an independent blood test. Just as frequently, they flat deny that an independent blood test was offered. It then becomes a simple matter of who the court or jury believes, the DWI/DUI defendant or the police officer. This is typically not going to end favorably for the defendant.

If you blow over .08 on the breath alcohol test, then you should request an independent blood test. The officer may not tell you your breath score. If you find yourself in the midst of the booking process, then rest assured you need to request a blood alcohol test.

The breath test have an error rate of at least 10%. There are numerous individual or situational factors that may elevate the score as well. If you have only had a little to drink, it is critical that you get a blood draw since these other factors may be at work. The blood test is far more accurate and may be significantly lower as a result of these factors.

You should be vocal about your request for the blood alcohol test. Even this may not be enough if an officer ignores your requests. To provide verifiable proof of your request, you should write "I want a blood test" on every single document that you sign during the arrest and booking process. This will provide proof of your request as well as the failure of the officer to provide the test in violation of New Mexico law.

Now comes the bad news. It may be pretty difficult finding a blood draw service. Though the law enforcement is supposed to assist in providing a blood test, they may just give you a phone book. Good luck finding someone to come to the jail or substation to take a blood draw, particularly late at night. If the officer will not assist you in locating a blood draw facility, which may be the case, then contact Any Lab Test now. They are available 24/7 at (505) 319-6059.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

There are proposed new jury instructions to address the anomalies DWI/DUI arrests and prosecution for sleeping while impaired. The new proposed New Mexico Uniform Jury Instruction §14-4512 more precisely defines the physical control of a vehicle necessary for a DWI/DUI charge. The new proposed jury instruction follows the recent New Mexico Supreme Court case of State v. Simms where it was found that someone sleeping in their vehicle without the keys in the ignition lacked the control or the intent to drive the vehicle necessary for a DWI charge.

The New Mexico Supreme Court in Simms stated that there must not only be control over the vehicle but also an intent to drive. The Court stated that generalized intent was insufficient. It is no longer sufficient for the prosecutor to argue that the individual might have woken up and decided to drive. The new jury instruction sets forth a number of factors for the determination of both the control and intent necessary to charge a parked driver with DWI including: 1) whether the vehicle was running, 2) whether the ignition was in the "on" position, 3) where the key was located, 4) where the driver was located, 5) whether the person was asleep, 6) whether the headlights were on, 7) where the vehicle was stopped, 8) whether the driver had voluntarily pulled off the road, 9) the time of day, 10) the weather conditions, 11) whether the heater or A/C was on, 12) whether the windows were up or down, 13) whether the vehicle was operable, and 14) any reasonable explanations justified by the circumstances.

The clear intent of the new jury instruction is to avoid the arrest and prosecution of individuals who have chosen to act responsibly by avoiding drunken driving. It is also clear that the instruction attempts to avoid abuse of the new Simms ruling by shrewd drivers who may attempt to feign circumstances to avoid arrest for DWI. It remains to be seen how the new Simms ruling will be implemented and how a jury will view these factors in consideration of DWI/DUI cases.

It is unfortunate that Simms and the new jury instruction come too late for many who were unjustly prosecuted for DWI when they were simply trying to do the right thing. There were many such individuals particularly in Albuquerque where DWI enforcement on occasion seems to defy logic or reason. Those like Fidencio Francia, a Vietnam war veteran, who was arrested for trying to sleep off a night of drinking in his car prior to the Simms decision will not benefit from the newly enlightened jury instruction.

On the other hand, the new Simms ruling along with the new jury instruction if adopted should avoid future such unfortunate and misguided prosecution thereby allowing drivers to act responsibly. Albuquerque streets will be made a little safer as a result of the Simms case. No longer will folks like Mr. Francia be encouraged to drive drunk to avoid arrest for sleeping in their vehicle.

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

The law in New Mexico regarding the validity of breath alcohol tests (BAC) in DWI/DUI cases has been recently modified by statute. The modification has severely curtailed the use of expert testimony by the defense to attack the validity of the breath alcohol scores. These issues were addressed in the 2009 New Mexico Court of Appeals case of State v. Jenita Chavez.

In the past, DWI/DUI defendants would often bring expert testimony to address the possibility that the blood alcohol levels at the time of driving were different than the levels at the time of BAC. The arguments were based on the absorption rates of alcohol into the blood stream, or retrograde extrapolation. For example, if one were to take a shot of tequila and jump in the car for a quick drive home, it is possible that the alcohol would not have absorbed during the short drive and the driver would suffer no impairment. If the driver is pulled over and later tested at a substation, sometimes hours later, there was an argument that the alcohol had more time to absorb so that the blood alcohol levels at the time of the test were higher than at the time of driving.

The New Mexico legislature took this line of defense away by amendment to the DWI/DUI statute NMSA 66-08-102(C) to read "It is unlawful for ... a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle." Expert testimony on the absorption rates is now largely prohibited in DWI/DUI trials.

However, the court in State v. Chavez recognized that expert testimony may still be available to attack other aspects of the breath alcohol test. In that particular case, the court upheld the exclusion of the expert testimony because the defendant had failed to show the relevance of the testimony for any legitimate line of defense.

The court, citing the 2007 New Mexico Supreme Court case of State v. Martinez, specifically allowed for DWI/DUI expert testimony to attack the accuracy and reliability of the breath alcohol scores. In State v. Chavez, the defendant attempted to admit expert evidence on how the outcome of the test might be impacted by the person giving the sample. The Court stated that the defendant failed to explain the relevance of this testimony other than for purposes of the now prohibited retrograde extrapolation.

In short, there is now a pretty significant burden on the defense to show the relevance of the DWI/DUI expert testimony for purposes of attacking the reliability of the breath alcohol test. And the attack on the BAC cannot have as its basis alcohol absorption and elimination rates.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals has validated the police-team concept in DWI/DUI investigations. Ironically, the decision comes on the heels of the Albuquerque Police Department's recent announcement that police-teams would no longer be used in DWI/DUI investigations.

The police-team approach to DWI/DUI's was used widely across New Mexico, particularly in Albuquerque where it was used in the vast majority of DWI/DUI investigations. In essence, the police-team approach involved the assistance of specially trained DWI/DUI officers in almost every DWI/DUI investigation in Albuquerque. Typically, there would be a stopping officer, generally from field services, who would initiate contact with the suspected DWI/DUI driver. If that officer believed that the driver was driving under the influence of alcohol, an officer from the DWI/DUI Unit would be called to the scene. Once on the scene, the DWI/DUI officer would take over the investigation.

Many defense attorneys challenged the practice over the years arguing that the police-team approach did not meet the basic rule that a misdemeanor arrest cannot be made unless the misdemeanor was committed in the presence of the arresting officer. There were a few judges throughout the state that did not recognize the police-team concept.

The Court of Appeals in State v. Mitchell validated this practice . Essentially, the court indicated that the team approach where the investigation was handed off from one officer to another was a legitimate practice. The Court found that the practice met the exception to the rule because of the officers' cooperation in the DWI/DUI investigation.

Thus, the police-team approach can now freely be used by New Mexico law enforcement in DWI/DUI investigations. The ruling comes just as the Albuquerque Police Department has done away with the practice. APD stated that the practice will avoid the necessity of two officers in court for the prosecution of DWI/DUI. Often times, trials are continued because either the stopping officer or the DWI/DUI investigating officer are not present. Both must be present in order to prosecute the case. On occasion, these cases would eventually get dismissed due to the unavailability of one of the officers at trial.

The decision to discontinue the practice also reflects budgetary realities. DWI/DUI prosecutions can be very expensive, burdening the police, the prosecutors' offices, and the courts when one or more officers routinely miss a hearing necessitating future hearings otherwise unnecessary hearings. In addition, the time that the officers accrue in court is typically counted as over-time pay, which is paid at a premium. The police-team concept is simply an inefficient means of prosecuting DWI/DUI burdening an already stretched criminal justice system.

The practice creates a severe burden on the system and the taxpayers that carry it. As such, though the practice has been validated by the Court of Appeals, Albuquerque Police Department, already hit by severe budget issues, will have to think carefully before reinstating it.

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.

www.CollinsAttorneys.com

You have a right to an independent blood alcohol test when you have been arrested for DWI/DUI in New Mexico. This right may prove more theoretical than real if you are unable to locate a facility or provider to take the blood draw.

Any Lab Test Now claims to be available 24/7 at (505) 319-6059. The organization will send out a certified phlebotomist to conduct the test. The test results are fully admissible in a DWI/DUI defense. The results are also admissible for the MVD license revocation hearing. A blood alcohol test is far more reliable than the breath alcohol test utilized by law enforcement which has a acceptable 10% error rate.

The test is free so long as you submit to the State's breath alcohol test If you refuse the State's breath alcohol test, you will be charged for the test. In addition, you will be responsible for all costs associated with getting the testing technician to court at trial.

Take the State's test, then get an independent blood alcohol test to insure accurate results. Insist on the BATDRAW independent blood alcohol test. Be vocal and leave no doubt that you made the request. As seen in State v. Duarte, any doubt in your request for an independent blood alcohol test will likely be construed against you.

You have the right to an independent blood test. You should exercise it if there are any doubts in your mind regarding the results of the law enforcement result. You should most definitely use the service if your results are close to .08 or .16 due to the recognized 10% error rate in the breath test. Clearly, you do not want the test if you are under the limit as the rate of error in the breath alcohol tests swings both ways.

The exercise could prove purely academic anyway due to New Mexico law that allows drivers to be convicted at levels below the legal .08 level, under the "impaired to the slightest degree" standard. However, it is far better to be fighting the "impaired to the slightest degree" than the statutory presumptive impairment above .08. And, anything over .16 puts you at a severe disadvantage due to aggravated DWI/DUI charges for levels over .16. In addition, .08 or higher virtually guarantees a revocation of your license by MVD.

Put this number in your phone., (505) 319-6059. Give to your friends and family. Hopefully, you will not need it, but if you do, you do!

www.CollinsAttorneys.com

New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

www.CollinsAttorneys.com

The Albuquerque Journal reports that New Mexico Senator Michael Sanchez has introduced Senate Bill 151 (SB 151) which will address two serious problems in New Mexico DWI/DUI enforcement: 1) under the limits DWI/DUI arrests on the impaired to the slightest degree standard, and 2) the arrest of drivers found sleeping in their vehicles while intoxicated. The latter will be addressed here with a follow up on "impaired to the slightest degree."

Senator Sanchez 's SB 151 would address the practice of arresting drivers who are asleep in their car by inserting language defining driving to mean only those situations where the "person is behind the wheel of a motor vehicle and causing the motor vehicle to move or exercising control over the movement of the vehicle. Exercising control over a motor vehicle alone, without any movement of the vehicle and with no immediate intent to move the vehicle, does not constitute driving." The current DWI/DUI enforcement practices and the law allow drivers to be arrested for sleeping while intoxicated under the theory that they are in control of the vehicle.

Those in opposition to the change in the law argue that a person sleeping his or her car could wake up and decide to drive. Sure, they could. Someone drunk and sleeping in bed could wake up and decide to drive. In fact, that person is probably just or more likely to decide to drive drunk. After all, the person that had the good sense to avoid driving by sleeping in their vehicle at least possesses the conscience or fear of arrest necessary to cause them to avoid driving. Why should it be presumed that they would exercise the good judgment to avoid driving while intoxicated when severely intoxicated then exercise less restraint as the effects of the alcohol begin to wear off?

The fact is that the policy of arresting drivers who are sleeping in their cars to avoid driving under the influence actively encourages them to engage in the very behavior New Mexico's DWI/DUI laws are meant to deter. According to the National Highway Traffic Safety Administration's law enforcement DWI Training materials, for every driver that is arrested for DWI, there are 500 to 2000 drunken drivers that go undetected. If this is so, and one must weigh the risks of getting arrested for sleeping in a vehicle in a public parking lot which are probably pretty high versus getting arrested for DWI which according to NHTSA are extremely low. Due to the severe consequences of a DWI/DUI conviction, an odds oriented driver would drive rather than sleep since driving carries at best according to NHTSA a 1/500 chance of detection. I for one would rather the person sleep off their intoxication before getting behind the wheel drunk and possibley endangering me, my family or other innocent drivers.

The policy of arresting people for trying to do the right thing is wrong on purely a gut level. It makes no sense to punish someone for making a responsible decision. More than that, it endangers the public by more or less forcing people to drive home rather than sleep off their intoxication. New Mexico's DWI/DUI law and policy is irresponsible and dangerous. I am happy to hear that Senator Sanchez is pushing this bill.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

www.CollinsAttorneys.com

The Albuquerque Journal reported today that a bill toughening DWI/DUI penalties for first offenders died in the New Mexico Senate yesterday. The bill was considered a top priority for New Mexico Governor Bill Richardson.

The bill would have established mandatory jail time or community custody for first time DWI/DUI offenders. The bill would have required a minimum 3 day jail sentence or 30 day community custody for first time offenders. Community custody requires electronic monitoring (ankle bracelet) 24 hours a day for those in the program. Both jail time and community custody are very costly. These costs apparently derailed the bill.

Those in opposition to the bill pointed to the unfunded costs in the program. They also pointed to the strain the program would place on already overcrowded jails throughout New Mexico. Finally, at least one senator, Bernadette Sanchez of Albuquerque, addressed the problem of overreliance on penalties and too little emphasis on treatment.

There were 150 DWI/DUI fatalities in New Mexico in 2009. 70 percent of those were caused by first time offenders. Governor Richardson and others have argued that tougher penalties will act as a deterrent. Richardson first proposed the bill when a drunk driver crashed into a carload full of teens in the summer of 2009 killing 4 of the teenagers.

DWI/DUI is a very serious problem in New Mexico. 150 deaths is unacceptable. The real challenge is to address the problem in a manner that effectively reduces drinking and driving. The reality is that every DWI/DUI carries mandatory jail time. The DWI/DUI offender is arrested and jailed pending a first appearance. Often, the timing of the arrest over the weekend will carry 2 or more days in jail before the first hearing is set for release.

Mandatory jail time will likely have no greater deterrent value than the deterrents currently in place which include arrest, jail, courts costs, fines, counseling, probation, community service, loss of driving privileges and vehicle seizure among others. If this is not enough, the attorney fees can be financially crippling for some.

The penalties and costs of DWI/DUI are pretty staggering as the law currently stands. A new approach is needed beyond the customary call for stiffer jail time. What that approach would be remains to be seen.

www.CollinsAttorneys.com

Often times when drivers are charged with DWI/DUI in New Mexico, they have prior DWI/DUI convictions from other states. Many times, the charge in New Mexico will be to a DWI/DUI First Offense despite the prior conviction.

Those charged often believe that they were not charged with a subsequent DWI/DUI because the out of state conviction does not count against them. In reality, what typically has happened is that there has been no search of interstate criminal records at the time of the original filing of the complaint.

This does not mean that the complaint cannot be amended once the out of state DWI/DUI conviction(s) are discovered by the District Attorney. Therefore, if there is an out of state conviction for DWI/DUI, it will likely be discovered well before the trial date. If not, it will be discovered at sentencing and factored into the DWI/DUI sentencing where there is a significant amount of latitude allowed the judge.

The use of out of state DWI/DUI is allowed both by statute, NMSA 66-8-102(Q) and by case law, State v. Lewis. NMSA 66-8-102(Q) clearly allows for the use of out of state convictions for consideration of a charge as first or subsequent DWI/DUI. In addition, the New Mexico Court of Appeals determined in State v. Lewis that the use of out of state convictions for enhancement purposes is allowed under New Mexico law. The court ins State v. Lewis ruled that so long as the out of state DWI/DUI statute is substantially equivalent to NMSA 66-8-102, then the conviction can be used as a prior.

It is very important that you discuss your DWI/DUI history honestly with your attorney from the very first meeting. Prior convictions will almost always show at some point during the process. Hiding them from your attorney could severely impact the legal representation as the approaches for dealing with first time DWI/DUI and subsequent DWI/DUI can be very different particularly when it comes to consideration of plea offers. Surprises at trial are never good for you or your attorney. Surprises at sentencing can be extremely detrimental to your freedom.

www.CollinsAttorneys.com

A recent article on KOB.com of Albuquerque addresses an important question, why would Albuquerque police officers arrest drivers for DWI/DUI at a breath alcohol level (BAC) of .04 when the legal limit is .08.

The answer that the writer provides is that "It's all about your performance, and it's up to the cops." You would hope as a citizen that the first part of the explanation is correct, that it is about your performance on the field sobriety tests. The problem is that the second part of the explanation is exactly right, it is entirely up to the cop.

The article also rightly points out that the law states that you may be arrested for DWI/DUI when your ability to drive is impaired to the slightest degree by alcohol. It is yet to be determined what precisely this means, "impaired to the slightest degree." The reality is that it is as the writer suggests up to the cop.

This is the problem and it is very serious problem. It is left to the police officer to determine or opine whether a driver's ability to drive is impaired to the slightest degree. The fact is that the field sobriety tests are susceptible to interpretation at best and outright falsification at worst. The turn on the walk and turn test is not performed just right. The heel and toe did not meet on the 5th, 7th and 9th step of the walk and turn. The driver could not keep his hands at his side during the one leg stand. The driver did not appear to understand or follow one of the many directions given during the fields sobriety tests. And the horizontal gaze nystagmus (HGN) test has potential for abuse at every single step of the process. There simply is no way to prove that the cop misconstrued or falsified the test results.

So what's the problem? Perhaps, the officer is under stress to meet DWI/DUI quotas. This is the most innocent offense. Worst case is that the level of subjectivity in these tests allows the officer to target particular kinds or races of people. There is no check on the officer's discretion. It is entirely up to the officer. And judges are under too much pressure to question the credibility of an officer. The prosecutor cannot dismiss a case that lacks merit. The same news outlet, and probably several others, that printed the article on why under the limits DWI/DUI might occur will print an article the morning following a dismissal of a DWI/DUI that attacks the judge, the prosecutor, and even the cop for not being tough enough on DWI/DUI offenders.

Impaired to the slightest degree has too much potential for abuse. There are far too many pressures on judges, prosecutors and police to get these convictions. Impaired to the slightest degree is not standard. What does it mean? It means whatever the cop says it means and that is it. The fact is that most are very surprised to hear that .08 is not the true standard. Citizens have a right to expect laws that are precisely drafted so that they can stay within the bounds of the law. The law should set forth a precise standard for DWI. It should not be left to the cop on the street. It is not fair to the cop and it is not fair to the citizen. There simply is no way to predict or plan for such a vaguely written law.

So why doesn't New Mexico just pass a law outlawing drinking and driving, period? What would happen to restaurants and bars? What would happen to tax revenue for the State? There is your answer. It is more cost effective to pass the burden on to the unlucky driver caught in the vagaries of New Mexico's DWI/DUI laws than to risk the loss of tax revenue with drafting a law that reflects the reality of DWI/DUI enforcement in New Mexico and particularly in Albuquerque where it may or may not be a crime to drink even a sip of alcohol and get behind the wheel.

www.CollinsAttorneys.com

New Mexico Senator Tom Udall has introduced legislation that would require all states to implement ignition interlock programs modeled after New Mexico DWI program. New Mexico was the first state to require ignition interlock devices for all DWI/DUI offenders.

By law in New Mexico, a driver's license is automatically revoked by the Motor Vehicle Division (MVD) for either driving at or above .08 breath alcohol level or for refusing the breath alcohol test. For first time offenders, the revocation period is up to one year. For those individuals who test at .08 or higher, the first time MVD revocation is for 6 months. For those that refuse the test, the revocation is for one year. For second and subsequent offenses, the revocation is for one year.

During the revocation period, drivers may obtain an interlock license. The interlock license allows the revoked driver to drive so long as the vehicle driven has an interlock license installed. An interlock device will not allow a vehicle to start until the driver has blown into the breath alcohol measurement device. Any detection of alcohol will disable the vehicle. Driving without the interlock is charged as driving on a revoked license which carries up to 1 year in jail.

In addition to the MVD license revocation, the Court will also impose a one year interlock requirement on those convicted of DWI. Often, the court ordered interlock period will extend well beyond the administrative period of revocation. The interlock device is ordered as a part of the probation ordered in all DWI/DUI convictions. Violation of this provision is considered a serious violation of probation which could result in revocation of probation and incarceration for the remainder of the sentence.

New Mexico's DWI laws are pretty stiff. Admittedly, the results have been a significant decrease in the levels of drinking and driving in the state. The Centers for Disease Control has determined that repeat offenses dropped by 73% where the device was in use. These results clearly indicate the success of the program.

On the other hand, New Mexico has taken DWI enforcement to the extreme. People are routinely arrested, particularly in Albuquerque, even when their breath alcohol scores are below .08, sometimes significantly below .08. In addition to arresting and charging drivers below the .08 legal limit, the New Mexico Courts will convict people when they have not even been driving as in the recent case where a veteran was charged with DWI in Albuquerque while sleeping in his vehicle.

If Udall's bill passes, states could lose federal transportation funding for failure to adopt and enforce the act. Let's hope it does not become the race for federal funds that has led to the overzealous and completely irrational enforcement DWI laws that has occurred in New Mexico.

www.CollinsAttorneys.com

DWI/DUI is taken very seriously in New Mexico. Strict DWI/DUI enforcement is intended to deter drunk driving. As such, the laws are very strictly enforced throughout New Mexico and the consequences of a DWI/DUI conviction can be severe. In fact, Albuquerque police go even further arresting and charging people for DWI even when they have not been driving.

Due to the strict enforcement of DWI/DUI laws, people arrested for a 1st time DWI first want to know whether they will be going to jail. The next question often relates to their driver's license. Finally, they typically want or need to know the other penalties and fines associated with DWI/DUI in New Mexico.

For a first time offender, the worst case outcome is generally sentencing to the First Offender Program. As part of the First Offender Program, the defendant's sentencing is deferred for one year. The defendant is placed on supervised probation during this one year period. In addition, following conditions are imposed on the defendant as part of the First Offender Program:

1. DWI School,

2. Alcohol and Drug Abuse Screening,

3. Counseling and Treatment if recommended following screening,

4. Attendance of the Victim Impact Panel,

5. Random drug and alcohol testing if deemed necessary by probation following screening,

6. No consumption or possession of alcohol or illegal drugs,

7. Installation of an ignition interlock device on the defendant's vehicle for 1 year (this allows the defendant to continue to drive while on probation),

8. Community service which is typically 24 hours,

9. Payment of Court Costs, and

10. Payment of probation costs (these are often waived by the Court).

This is the standard sentence for a simple first time DWI/DUI in New Mexico. This sentence is imposed whether or not the defendant enters a plea or loses at trial. Thus, many simple first DWI's will go to trial since there is no difference in the penalties between a conviction on a plea versus conviction at trial.

The decision of whether or not to go to trial is made more difficult in an Aggravated DWI case. Conviction on an Aggravated DWI carries mandatory 48 hour jail time. Aggravated DWI is charged in cases where the driver's breath alcohol score is .16 or higher, the driver refused the breath alcohol test, or there was an accident involving alcohol.

Because of the mandatory 48 jail time, many DWI defendants do not want to risk a conviction of Aggravated DWI at trial. The result is that many, if not most, Aggravated DWI cases plea to a simple first DWI prior to trial which allows the defendant to enter the First Offender Program.

So getting back to the opening, the question is whether a first time DWI defendant will go to jail, and whether he or she will be able to drive following conviction on a DWI. The answer to the first question is that it is very unlikely under the current state of New Mexico law that a first time DWI defendant will go to jail unless he or she is convicted on an Aggravated DWI. The answer to the second question is yes, the defendant will be allowed to drive with an interlock license.

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Most people are surprised to learn they can be charged with DWI/DUI even when below the limits of .08. In fact, under the limits DWI charges in Albuquerque are quite common. In fact, people are arrested for DWI even when they are not driving.

A recent story in the Albuquerque Journal told the story of a Vietnam veteran, Fidencio Francia, who was arrested for DWI despite the fact that he never started his car. Instead, he knew that he had had too much to drink so he wisely chose not to drive. Rather than drive, he chose to sleep it off in his car. He was arrested and charged for DWI for sleeping in his car after consuming alcohol.

Albuquerque District Attorneys argue that such behavior puts the city at risk. They argue that folks like Mr. Francia are not using the car as a shelter but instead are in control of a "4000 pound bullet." The judge in the case, Judge Fitzwater argued that the law is well settled that one does not have to drive to be convicted of Driving While Intoxicated. Counter-intuitive, is it not?

In fact, the New Mexico Court of Appeals has ruled that it is unnecessary to drive to get a DWI/DUI. The court found that one need only be control of the car. The definition of control is very loose. In State v. Sims, the Court found that the person was in control of the car even though the keys were not even in the ignition, but in the passenger seat. And the defendant was asleep. Yet he was still in control of the car and presumably a threat to the public with his 4000 pound bullet.

What is the lesson here? Don't drink, if you do drink, don't get near a car, if it is freezing outside, you have to make a hard choice between dying in the cold, driving drunk, or getting a DWI for sleeping in your car.

There is no reason or rationality in the prosecution of DWI/DUI in Albuquerque. The policy of prosecuting people for not driving drunk is certain to end in disastrous consequences as some will decide the risk of driving drunk is no worse than the risk of not driving drunk. The only real question is when such a disaster will strike and whether the District Attorney and the Albuquerque DWI Unit will accept responsibility for the ill-advised policy of prosecuting people for not driving drunk. Meeting DWI quotas is I suppose far more important that actual public safety.

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