Albuquerque Criminal Lawyer Blog

The New Mexico Court of Appeals again addressed the issue of evidence of driving in a DWI case. The recent case of State v. Cotton is a bit hard to reconcile with the Court's other recent opinion in State v. Owelicio.

The Cotton case, like Owelicio, involved an immobile vehicle. Like Owelicio, the investigating officer found a vehicle beside the road. In Cotton, unlike Owelicio, the officer found an individual behind the wheel of the car. Along with the driver, the officer in Cotton found a female with a bloody lip, possibly a victim of domestic violence which was the impetus for the investigation to begin with. In addition, the officer found 4 small children in the car. Cotton failed the field sobriety tests. He refused the breath alcohol test which resulted in a charge of aggravated DWI. He was also charged with negligent child abuse.

Like Owelicio, the defendant made certain confessions. He confessed to drinking where Owelicio had confessed to driving despite evidence to the contrary. Cotton was convicted and appealed the verdict arguing the evidence was insufficient to support the DWI conviction. Specifically, he argued that the State had not proven that he was driving.

The State argued that it could be inferred that Cotton had been driving from the fact that the car was next to the road and Cotton neither lived in the car on the side of the road nor was it "placed there by aliens." The Court basically stated that the location of the vehicle next to the road did not prove that Cotton had been driving. He could have drank after pulling the car over. A finding of guilt required speculation on the part of the jury to find that he had been driving while intoxicated which the Court refused to allow.

The 2010 New Mexico Supreme Court case State v. Sims set forth requirements for a conviction where there was no witness to the driving but the defendant is in the vehicle. Basically, Sims requires that it be proven that defendant intended to drive the vehicle as evidenced by physical control over the vehicle. Sims makes clear that it applies only to cases premised on intent to drive, not cases such as Cotton where it is alleged that the defendant had driven in the immediate past.

Instead, the Court found the relevant case to be State v. Mailman, another 2010 New Mexico Supreme Court case. Remarkably, in the Mailman case, the officer found the defendant in the driver's seat. The car was not running and the keys were not in the ignition. However, the defendant admitted that he had been drinking and that he had thrown empty beer cans out of the vehicle while he was driving. Essentially, Mailman admitted to drinking and driving. He refused the breath alcohol test stating he was too drunk to pass. He was charged and convicted for aggravated DWI.

In Mailman, and in Cotton, the courts found that there was insufficient evidence of driving to support the DWI conviction. The Court in Mailman stated "[a]ctual physical control is not necessary to prove DWI unless there are no witnesses to the vehicle's motion and insufficient circumstantial evidence to infer that the accused actually drove while intoxicated." The Court in Mailman stated that the defendant might have been convicted based upon actual physical control and intent to drive but this had not been proven at trial. Nor had the State proven that he had driven. As result, the conviction was remanded for a new trial for the sole determination of whether he had driven in the immediate past.

The Court in Cotton, applying Mailman, found that the State had failed to prove the defendant had been driving. In addition, the State had not even attempted to prove control and intent to drive under Sims. Consequently, Cotton's conviction was reversed.

This decision is interesting in its own right. However, it is perhaps more interesting in comparison to the same Court of Appeals prior holding in State v. Owelicio. In that case, the car was on the side of the road, there was an intoxicated man changing two flat tires, and there was the defendant in the passenger seat. The passenger confessed to the DWI under protests from both the intoxicated man, who claimed a third party had been driving, and the officer who believed and told her she was lying.

The Court in Owelicio recognized that a confession alone without the corpus delicti (the act of driving while intoxicated) was insufficient. Yet the Court went to great lengths to find that the corpus delicti was established through corroborating evidence (the vehicle next to the road with 2 flat tires and 2 intoxicated individuals). The Court did not entertain the possibility that it could have been the same group of aliens that dropped Mr. Cotton's car next to the road had done likewise with the car in which witnesses had seen Owelicio traveling as a passenger? What about 2 flat tires changes the level of presumption or speculation necessary to show that Owelicio had been driving or that any DWI had occurred at all? The sequel is sure to come.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Nance, the New Mexico Court of Appeals considered whether a warrantless home arrest in a DWI case was unconstitutional and found that under the circumstances of this case, it was not.

Steve Chavez was leaving a business when he saw Koulungjim Nance's vehicle collide with his own in a parking lot. Chavez confronted Nance upon which Nance returned to his vehicle and drove away. During this encounter, Chavez detected a strong odor of hard liquor on Nance's breath. Chavez called 911 and drove after Nance.

Chavez observed Nance swerving into oncoming traffic, pulling out in front of traffic, speeding, and running stop signs. Within a few minutes, Nance arrived at his home with Chavez and police arriving soon after. The officers tried to make contact with Nance by knocking on the door and identifying themselves. Initially, Nance did not respond but 15 minutes later, he came out of the house. At that time, the officers administered a breathalyzer test registering scores of 0.29 and a 0.27.

The facts in Nance's trial were undisputed. The only issue before the district court was the suppression of the breath score for the warrantless home arrest. The district court agreed with the defense finding the warrantless home arrest unlawful under the 4th Amendment thereby suppressing the breath score.

In its ruling, the district court cited the1994 10th Circuit case of Howard v. Dickerson as follows; "minor offenses do not justify warrantless home arrests." The district court suggested that DWI was a minor offense for which there was no relevant exception under the misdemeanor arrest rule.

The Court of Appeals took exception to the characterization of DWI as a minor offense citing New Mexico Supreme Court precedent from the 2010 case of City of Santa Fe v. Martinez, '[t]he crime of DWI as defined by our Legislature is not a 'minor crime...compelling public interest in eradicating DWI occurrences and [their] potentially deadly consequences." As such, the Court justified the treatment of DWI as a felony for purposes of search and seizure analysis focusing on the exigent circumstances exception for warrantless searches.

The Court then addressed whether exigent circumstances existed sufficient to justify the warrantless encounter with Nance. Citing the 1997 New Mexico Supreme Court case of State v. Gomez, the Court defined exigent circumstances as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence."

The Court cited a number of cases most notably the 1986 New Mexico Court of Appeals case of State v. Copeland for the proposition that the possible dissipation of alcohol levels does meet the exigent circumstances test. Copeland involved a hit and run accident that killed a police officer. The investigating officers traced the defendant back to a hotel room where they forcibly entered his room and made the arrest. In that case, the court found that "the alcohol thought to be in defendant's system would be metabolizing" and that "based on the destruction of evidence rationale alone, the trial court was warranted in finding exigent circumstances."

The Court did not go so far as to suggest that dissipation of alcohol by itself is sufficient grounds to justify a warrantless home entry, the court declined to read it that way because the Copeland case had an exceptional set of facts. Instead, the Court found that DWI arrests were still constrained by the reasonableness requirements in the probable cause inquiry of felony warrantless arrests.

In addressing the reasonableness requirement, the Court noted that the police did not enter Nance's house, did not draw their weapons, and did not search the premises but simply stood outside of his house for 15 minutes. The Court found this to be reasonable as only a "slight intrusion was well tailored to the exigency in this case."

In sum, the Court concluded that there were both exigent circumstances present for the warrantless encounter and that the warrantless encounter was reasonable under the circumstances. The court did not determine whether police would have been justified in entering Nance's house without a warrant under these conditions as it was unnecessary for the ruling. It is to be expected that this will be the next line of inquiry as law enforcement attempt to stretch the boundaries of this ruling.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of State v. Trevizo addressed the statute of limitations on first time DWI and reckless driving in New Mexico. The court concluded both first time DWI and reckless driving are petty misdemeanors under New Mexico law and therefore subject to a one year statute of limitations.

The facts are pretty straightforward. The defendant was arrested on October 13, 2005. The criminal complaint for DWI and reckless driving was not filed until April 12, 2007, one day short of 18 months from the date of arrest.

The defendant filed a motion to dismiss in Albuquerque Metropolitan Court for violation for one year statute of limitations on petty misdemeanors. The motion was denied and the defendant was convicted on both counts. The defendant appealed to District Court which reversed the Metro Court decision. The State then appealed the District Court ruling.

The relevant statutes as set forth by the Court of Appeals provide the following statute of limitations:

C. for a misdemeanor, within two years from the time the crime was committed; D. for a petty misdemeanor, within one year from the time the crime was committed; G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed.

The State argued under paragraph C, D and G of NMSA §30-1-8 (now paragraphs C, D & H under 2009 Amendments) resulted in either a 2 or 3 year statute of limitations. The State argued that because the offenses were in the MVD code and not the criminal code, they should be covered by the catchall 3 year provision in paragraph G. In the alternative, the State argued that because the MVD code stated that all MVD code violations were classified as misdemeanors in the absence of contrary language in the code.

The Court of Appeals disagreed pointing out a number of problems with the State's position. The Court noted the absurdity of placing all MVD violations under the 3 year statute of limitations by virtue of the fact that they fall outside the criminal code. The result would be that not only would first time DWI and reckless driving be covered by the 3 year statute, so too would "speeding violations, parking violations, failure to signal, following too closely, and other traffic violations." The result would be that these petty traffic offenses would carry limitations period equal to that to serious felonies.

After a thorough analysis of the case-law and statutes, the Court concluded that the classification of a crime should be determined by the possible penalties. In doing so, the Court also addressed the State's position regarding the classification of all MVD violations not specifically delineated in the code.

Granted the MVD code does have some contradictory language. Section 66-8-7(B) of the Motor Vehicle Code provides "Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both." Thus the MVD sentencing guidelines are consistent with sentencing for a petty misdemeanor despite the language suggesting that the offenses should be classified as misdemeanors.

Consistent with the possible sentencing of only 90 days, the Court concluded that both DWI first offense and reckless driving must be classified as a petty misdemeanor and therefore subject to the one year statute of limitation. For those facing dated DWI charges, keep in mind that the ruling is limited to first time DWI and reckless driving. Repeat DWI offenders face much longer sentences which would bring them under the 2 year misdemeanor statute of limitation or in 4th or subsequent DWI offenses, the felony limitations period.

Due to the inconsistency in the MVD code language, and the seriousness with which DWI is treated in New Mexico, it is likely that this case will be appealed to the New Mexico Supreme Court. In addition or in the alternative, the legislature may address the issue in the next session to lengthen the statute of limitations. As such, if you are faced with a situation like this, be sure to consult with a DWI attorney to identify the limitations period on your case.

Collins & Collins, P.C.
Albuquerque Attorneys

DWI roadblocks or sobriety checkpoints have become commonplace in New Mexico, particularly in Albuquerque. Those caught in the roadblock often have questions regarding the legality of the roadblock.

The 4th Amendment protects citizens from unlawful searches and seizures without probable cause of a crime. Clearly, everybody traveling through a roadblock is not under suspicion of having committed a crime. These roadblocks are clearly trolling for DWI drivers.

From a 4th Amendment perspective, these roadblocks just do not sit well with those concerned with the right to privacy and the right against unlawful search and seizure. As objectionable as the DWI roadblocks might be, the constitutionality of roadblocks under the 4th Amendment search and seizure provisions has long been established.

The legal precedent governing this area of law is complicated and expansive. There are a number of United States Supreme Court cases that have addressed the issue, Michigan v. Sitz, Indianapolis v. Edmond, and Illinois v. Lidster. These cases, in order to skirt the issue of trolling for criminal activities simply reframed the argument. The common thread coming from the cases is that roadblocks intended to fish for criminal activity are unconstitutional. However, the court ruled that it was not unconstitutional if the roadblock was not simply a means of detecting criminal activity but a means to promote public safety.

In short, roadblocks are legal despite the fact that they are clearly intended to detect criminal activity. Of course, there is a public safety argument but the same could be argued for any random search of a citizen. After all, if by chance a criminal is caught during random searches, whether on the road, in the mall, or door to door, then the community is slightly safer.

The New Mexico courts have ruled consistently that roadblocks are not unconstitutional. The seminal New Mexico case of Las Cruces v. Betancourt (NMCA 1987), has long established the legality of DWI roadblocks in New Mexico. Betancourt and its progeny have established acceptable purposes and and procedures necessary for a legal roadblock. Suffice it it to say that it is not a high bar for law enforcement. However, there are minimal procedural requirements that must be met. In the absence of these procedural protections, the roadblock will be rendered unconstitutional.

Challenging a roadblock is no trivial matter. It takes a lot of work and investigation to determine whether the police followed all of the procedural safeguards. The fact is that for the most part they do. However, there are those rare occasions where they did not and it is worth the effort to find out. Invalidation of the roadblock will typically result in a dismissal of the DWI charges unless there were some other grounds for the traffic stop.

Again, it is relatively rare that a roadblock is found unconstitutional. Roadblocks are growing in frequency around New Mexico as is the seriousness with which DWI is treated. Don't drink and drive and you will not have to worry about either. If you do get caught and arrested for DWI in a roadblock, consult with a DWI attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys

An aggravated DWI carries very serious consequences in New Mexico including mandatory jail time. Aggravated DWI carries all the same elements as a simple DWI along with a number of possible additional elements.

A simple DWI involves driving under the influence of alcohol, driving under the influence of drugs, and/or driving with a breath or blood alcohol level above .08. Keep in mind that the .08 mark in New Mexico is not necessary for a conviction for DWI. The .08 mark simply leads to a presumption of driving while intoxicated. Many drivers to their surprise and dismay are convicted at lower levels. In addition, the presumptive level goes down to .04 for drivers of commercial vehicles.

Aggravated DWI carries additional elements in addition to those listed above. These elements are deemed to be more egregious than the standard elements of a simple DWI warranting more severe penalties. There are a number of possible circumstances that will lead to a charge of aggravated DWI.

Perhaps the most common aggravating factor in DWI is a breath or blood alcohol score of .16 or above. In essence, a score of twice the legal limit will result in a charge of aggravated DWI. A close second to the high breath/blood alcohol score as an aggravating factor is a refusal to take the breath alcohol test. The Implied Consent Act results in an automatic aggravation of the DWI charges for a refusal. A refusal will be found even in situation where a driver delays or otherwise waivers in the consent. In short, a driver must take the breath alcohol test and must take it in short order or risk a charge of aggravated DWI as evidenced under State v. Suazo.

A less common, though often far more serious aggravating factor, is DWI involving bodily harm. These cases involve DWI auto accidents resulting in injuries. The injuries may occur to the driver, the passengers, other drivers or pedestrians. These cases are taken very seriously as one might expect from a glimpse at the tragic DWI accidents that occur each year in New Mexico.

A conviction for aggravated DWI carries a number of possible more serious consequences beyond the mandatory 48 hour jail time. Much of DWI sentencing is discretionary with the judge. The sentences must simply fall between the mandatory minimums and the maximums allowed by law. There is a great deal of latitude with the court between the minimum and the maximum sentencing.

Judges and prosecutors alike do not look kindly on aggravated DWI. This is particularly so with very high breath alcohol scores or accidents involving injuries. Not only will the original sentencing be more severe, judges are often very hard on those that violate probation under an aggravated DWI. This may be so even with seemingly minor technical probation violations. This can make probation very unpleasant as if it were not unpleasant enough.

In short, DWI is taken seriously in New Mexico. Aggravated DWI, as the term suggests, is taken even more seriously. It is simply not worth it. After all, even if you beat the charges, you still spent a night or two in jail, spent a minimum of 6 months going through the court process, and parted with a great deal of hard earned income paying me or some other DWI attorney to get through a very stressful and difficult process.

Collins & Collins, P.C.
Albuquerque Attorneys

When you are pulled over on suspicion of DWI in New Mexico, the police will not launch straight into performing a field sobriety test; they will question you first. What you may not realize is that this is not mere chit chat. These questions are a test in themselves,

Though not as formal as the field sobriety tests you will take, these tests, referred to a pre-exit tests, are used for a number of purposes. They provide grounds for the subsequent standardized field sobriety tests. The driver's performance on these "pre-exit" tests will also often end up in court. Thus, they are important both for the officer's decision to pursue a DWI investigation, and later to a judge or jury in determining guilt.

As you are answering the officer's questions, he or she will be looking for signs of intoxication such as slurred speech or odor of alcohol. The officer will also look for mental impairment such as confusion about the date and time or why you were pulled over. They will have your perform certain routine tasks such as finding and producing your license and registration. These tests are meant to divide your attention while also testing physical dexterity.

"Divided attention" refers to the brain performing multiple tasks at the same time. Alcohol use can affect your ability to perform divided-attention tasks even at low levels. This inability to multitask makes driving a car very difficult for an intoxicated person because it requires so many things to be done at once--maintaining an appropriate speed, maintaining the lane, steering the car, checking mirrors, etc.

Initial questioning can test for divided attention in three primary ways: asking two questions at once, giving you more than one command at a time, interrupting or distracting you as you are answering a question, or asking unusual questions. The officer may have you recite alphabet backwards, count down from one designated number to another. The officer may fire questions at you pretty rapidly all in an attempt to fluster you.

Some field sobriety tests include divided attention tasks as an element. For example, the one-leg stand test requires you to balance on one foot while counting aloud by thousands and the walk-and-turn test requires touching the heel to the toe while walking in a straight line and counting steps. Officers will sometimes combine more than one test to create a divided attention test, such as requiring a subject to touch his finger to his nose while standing with feet together.

Both the pre-exit tests and the standardized field sobriety tests are difficult under the best of circumstances. A few drinks will make it pretty near impossible. Worse yet, many officers will err on the side of arrest due to the low standard of impaired to the slightest degree. Breathe test or not, the pre-exit testing along with the field sobriety tests may be sufficient to meet this standard.

These tests may provide the probable cause necessary for arrest even at low levels of alcohol. And it simply does not get any better moving through the process. With the low burden placed on the State for a DWI conviction, any alcohol at all with poor pre-exit and field sobriety testing may lead to a conviction.

And the moral is, Don't Drink and Drive!

Collins & Collins, P.C.
Albuquerque Attorneys

There have been many studies that attempt to correlate traffic accidents with alcohol use. For example, a 1978 study by the Department of Transportation found that five percent of drivers in accidents resulting in property damage were intoxicated. The same study found that 9-13 percent of drivers in injury accidents were intoxicated.

According to National Highway Traffic Safety Administration (NHTSA) data from 1998, the number of drivers or non-occupants (e.g., pedestrians) with a blood alcohol level of at least 0.10 rises to an astonishing 30 percent in auto accidents involving fatalities.

Though it cannot necessarily be proven that alcohol was the cause of these accidents, there was a clear relationship. The data and the correlations between alcohol and auto accidents led the Department of Transportation to what most of us would consider the obvious conclusion that "alcohol beyond a certain amount ... is associated with increased crash risk."

Both the 1978 and 1998 studies use a .10 breath alcohol standard for their measurements. In New Mexico the so-called standard is .08. However, one would be advised to understand the true standard in New Mexico of "impaired to the slightest degree" which often leads to arrest and conviction at levels well below .08.

In addition to studying the correlation between alcohol and auto accidents, there have been significant efforts to determine which observable driving behaviors most closely correlate with alcohol impairment. For example, a 1997 study by the National Highway Traffic Safety Administration used data from 379 Florida traffic stops to try to determine which driving behaviors were most closely associated with an increased blood alcohol levels.

The study's authors were particularly interested in the correlation between certain driving behaviors and the magic 0.08 percent blood alcohol levels now most commonly used as the standard. The study found that observable deterioration driving ability occurs at high levels of alcohol. The study found further that driving was impaired at lower levels as well, hence the interest in the .08 correlation.

NHTSA concluded that there was a problem with many drivers on the road at .08 or above. And though high BAC drivers are perhaps "easier to detect, ... there is a serious problem if many people drive at and near the statutory limit without being detected." In order to address the problems with detection, NHTSA attempted to identify those behaviors that most closely correlate with alcohol impairment.

NHTSA found that failure to maintain a single lane was most closely associated with increased blood alcohol content and equipment violations had the lowest correlation. Drifting or weaving, running stop signs and improper speed came in close behind lane violations as predictors of impairment.

If you are unfortunate enough to be stopped for DWI, the police report will often read like a laundry list of these factors in order to justify the stop. As you might imagine, several of these are quite subjective and quite difficult to disprove. On the other hand, most police officers are surprisingly honest and forthright about the presence and magnitude of these factors when questioned during pretrial interviews and at trial if it comes to that. Thus, it is always advisable to seek the counsel of an experienced DWI attorney, whether that attorney is private or court-appointed. It is never a good idea to go it alone!

Collins & Collins, P.C.
Albuquerque Attorneys

The U.S. Supreme Court just ordered the State of California to reduce crowding in prisons. Interestingly, on heals of this opinion, the New York Times reported that violent crime rates are at the lowest levels in 40 years.

California is not alone in prison overcrowding. Many states have similar problems. This is not surprising in light of the fact that the United States has 2.3 million people behind bars, by far the largest prison population in the world. The question that comes to mind is why the prison population continues to grow as crime rates are in decline?

The answer is simple. Prisons are quite profitable. But only if they are full. The problem becomes how to keep the prisons full as crime declines. There are many creative solutions to this problem. The most obvious solution is to create more criminal offenses. If folks are not committing the crimes that are on the books, the simple solution is to write a new book.

Thus, each year countless new criminal statutes are proposed, some of which are plainly geared to expanding the scope of criminal conduct to otherwise common practices. A few examples from New Mexico's past legislative session might help. There was legislation introduced to make it a felony to text while driving thus creating the opportunity to imprison the entire teen population. There was legislation introduced to make it a crime to pass within 5 feet of a bicyclist in a car geared perhaps to jailing grandmas. There was legislation passed to make a crime for a minor to "appear" intoxicated again targeting teens Sadly, there are many teenagers that simply cannot avoid appearing intoxicated any more than they can resist testing as most an parent of a teen will attest.

These are just the bills criminalizing the New Mexico public introduced last session. It does not touch on the DWI laws that though originally well intended are now moving in a very dangerous direction. Take for example the impaired to the slightest degree standard which basically allows the conviction of a driver for DWI if the arresting officer says he believes the person was intoxicated. Worse yet is the recently reported proclivity, and let's hope it is not a trend, to charge passengers with DWI. This should be a real boon for corrections. Finally, it has now become common to arrest folks for DWI for prescription medications of all varieties including Ritalin which is designed to increase focus and attention.

The bottom line if the people will not commit the criminal acts on the books, then the only option for keeping prisons full is to criminalize the behavior that they do engage in. Rest assured, California will not release prisoners. Instead, it will take the option left open by the Supreme Court of simply building more prisons as will other states. And those prisons will be full to overflowing.

We can all take comfort in knowing that private corrections companies will take a slight hit in profits as they are compelled to build new and expensive facilities. And the prison population will grow and grow until sometime in the distant future another such ruling is issued, as they have been time and time again, ordering California or some other state to reduce crowding. Presto! More prisons, more prisoners, and more proposed legislation making it a crime to "appear" to be some variety of criminal.

Collins & Collins, P.C.
Albuquerque Attorneys

There are two types of tests that police officers use to determine whether a driver's blood alcohol level is above the legal limit: chemical tests and field sobriety tests. The most common is the breath alcohol test. Alcohol levels can also be tested by blood and/or urine tests. Chemical testing is for the most part pretty accurate.

Field sobriety tests, on the other hand, are far less reliable but are used to justify the chemical testing, generally the breath alcohol test. Field sobriety tests will tests the driver's attention, balance and coordination. They are usually conducted on the side of the road after a driver has been pulled over on suspicion of drunk driving under less than ideal circumstances.

Field sobriety tests do not measure a subject's blood alcohol level directly. Rather, they are intended measure the degree of a driver's impairment and to predict alcohol levels. There are a number of field sobriety tests including standing on one leg, walking heel-to-tow in a straight line, touching your finger to your nose, counting down backwards and reciting the alphabet. Field sobriety tests are less reliable indicators of impairment than chemical tests. In addition, there are often irregularities in how the tests are administered rendering them even less reliable.

In order to increase the reliability, the National Highway Traffic Safety Administration (NHTSA) created standardized field sobriety testing. The standardized tests were meant to increase reliability through standardized routines. In addition, the NHTSA conducted numerous studies to determine the most relieable battery of tests.

NHTSA determined that the most reliable tests in combination were the one-leg stand, the walk-and-turn test and the horizontal gaze nystagmus test. NHTSA found that these tests conducted in a standardized manner yielded the most reliable predictors of alcohol levels at or above .08.

Unfortunately, these standardized tests have many faults leading to reduced reliability. Perhaps the biggest problem is that different people naturally perform differently on field sobriety tests regardless of whether they are drunk or sober, and the arresting officer will not have any idea about the driver's baseline performance.

Related to the first, there is also a problems with the fact that there are many different reasons other than alcohol that lead to poor performance on the tests. Illness, allergies, tiredness, obesity, injury and emotional state to name only a few can all cause a person to perform poorly on the standardized tests.

Even under the best of circumstances, these tests have reliability issues. According to NHTSA itself, the one-leg stand is only 45% reliable on its own in predicting alcohol levels at .08 or above. The walk and turn is only 61% reliable. Notably, the horizontal gaze nystagmus has the highest reliability at 65% but it is not admissible in New Mexico courts.

Taken together, the three tests still yield only 69% reliability in predicting breath alcohol levels above .08. This is far cry from beyond a reasonable doubt. Worse yet, no matter how admirably one performs on the tests, a motivated or enthusiastic officer can see it differently finding justification for a DWI arrest.

And once the arrest is made and any alcohol whatsoever is detected by chemical testing, the defendant has an uphill battle against with New Mexico's impaired to the slightest degree standard. With the impaired to the slightest degree standard, the standardized field sobriety tests often become the case when the breath alcohol level comes in below .08 which is not uncommon.

Thus the field sobriety tests which were never meant as the final measure of impairment but simply a predictor of alcohol levels have greatly reduced the burden of proof in DWI cases from beyond a reasonable doubt to somewhere in the vicinity of 45% to 69% accuracy. And this seems good enough for the courts and the legislature. Its probably not good for you, however, if you have a little wine with dinner.

Collins & Collins, P.C.
Albuquerque Attorneys

A deferred sentence in a first time DWI in New Mexico is pretty common in most courts around the state. A deferred sentence eventually results in a dismissal of the charges. However, the dismissal does not have the effect that most DWI offenders would wish it to have.

A deferred sentence in any case, including a first time DWI, requires a plea of guilty or no-contest. The deferred sentence does result in a finding of guilt. As such, even though the charges are eventually dismissed, the deferred sentence has important consequences for the DWI offender.

First and foremost, much to the chagrin of many repeat DWI offenders, the first time DWI counts as a prior despite the fact that there was a deferred sentence and the charges were eventually dismissed. As a result, even though the first time DWI is dismissed on the deferred sentence, a subsequent DWI comes with all the disastrous consequences associated with repeat DWI offenses. The most notable consequences of repeat DWI offenses are mandatory jail time and much stricter levels of probation.

Unfortunately, the deferred sentence is the best possible plea in most first time DWI cases. Gone are the days when the prosecutors offered pleas to lessor offenses. Neither will prosecutors any longer agree to conditional discharges on first time DWI. The conditional discharge to the lay observer would appear to be identical to a deferred sentence. However, there is one very big difference. Despite the typical requirement of a plea of guilty or no-contest for court approval of the conditional discharge, there is no adjudication of guilt.

Due to the seriousness and often tragic consequences associated with DWI in New Mexico, neither judges nor prosecutors will allow any disposition of even a first time DWI that will not later count as a prior for a subsequent DWI. In fact, there is mandatory DWI sentencing dictated by statute that disallows such an outcome.

If you are charged with a first time DWI, you should understand all the possible consequences including mandatory sentencing. Because of the seriousness of a DWI conviction, it is wise to speak with an experienced New Mexico DWI attorney. If you cannot afford a private attorney, there are many very experienced and capable public defenders, one of whom will be appointed to assist you.

Collins & Collins, P.C.
Albuquerque Attorneys

The Albuquerque Police and the Albuquerque District Attorney are getting more and more creative in their charges of DWI. This is nothing new.

In the past, they have charged and convicted individuals for DWI for sleeping off a drunk in their car. They regularly prosecute individuals at breath alcohol levels below, sometimes well below, the .08 legal limits. They have charged at least one driver with DWI for driving while on prescription medication designed to enhance attention and concentration. So it should come as no surprise that they are prosecuting a person of DWI for allegedly allowing another to drive drunk.

In the case of State v. Janet O'Dell, Ms. Odell is charged for DWI for allowing her friend to drive drunk. According to news reports, Ms. O'Dell was not even in the car with her friend at the time of his arrest. She was in another car. But she allegedly had given her friend her keys knowing that he was intoxicated. Allegedly she told the officer that she allowed her friend to drive because she was drunker than he was.

The new and creative approach is based upon the 2009 case of State v. Marquez where a passenger was charged and convicted for vehicular homicide. The facts of that case were unique and extreme where both the passenger and driver were on a very dangerous binge of drinking and driving that ended in the death of 2 and severe injuries to 5 more in a van that they struck.

In O'Dell's case, she simply handed over the keys. She was according to the report so drunk that she could not figure out how to get out of the second car in which she was found by police. It appears from the news reports that she was neither complicit in getting her friend drunk, nor did she encourage him to drive.

Several questions arise with the O'Dell case. Will this case set precedent allowing all passengers to be charged in a DWI case? How are the passengers to know if the driver was drunk? This is particularly problematic in light of New Mexico's DWI standard of "impaired to the slightest degree." With this standard, a driver may have a breath alcohol level of well below .08 but be impaired under New Mexico law. This is difficult enough but what if the driver is on Ritalin or Adderall which is now charged as DWI as in the Ron Bell case? How will a passenger judge impair,ment in these situations?

Simply put, how is one to know that the driver is impaired by New Mexico's vague, loose and ill-defined standards. In fact, how are they to know if the person is over .08? Should we now all be held to account for failure to measure blood alcohol before entering a vehicle?

What about spouses, girlfriends/boyfriends, business associates, employees? How about an employee who gets in the car with his or her boss after the boss has had a few? What if the boss is known to drink regularly but the employee did not see him drink today? The fact is if the Albuquerque District Attorney is allowed to proceed on this new and incredibly broad theory, then each and every one could be charged with DWI. There is in fact no limit to the hypothetical situations that might lead to a passenger charge of DWI.

DWI is a serious problem. DWI drivers should be punished. But should their friend, family and associates all be taken down with them?

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

Under New Mexico law, a second DWI carries mandatory minimum jail time of 96 hours. It gets worse with increasingly severe consequences for subsequent offenses. Worse yet, the courts are growing increasingly reluctant to order the minimum sentences. In fact, the courts have a great deal of latitude between the minimum and maximum jail sentences.

The first step to minimizing jail time is to admit that you have a drinking problem. This is remarkably hard for some DWI offenders. Instead, they will argue that they don't have a problem, they only drink socially, occasionally, with dinner and so on. Some can be surprisingly resistant to an admission of a drinking problem despite their legal predicament.

These folks should understand that the court sees things very differently. The fact that an offender has more than one DWI is sufficient in itself to suggest a drinking problem. This is often evident to all but the offender. And unfortunately, the offender will often have a lot of time in jail to mull over his or her stubbornness.

There are others that will admit to the problem only once they get to court at sentencing. This is too late with the judge often viewing it as an empty gesture to minimize jail time. In fact, this late admission with no evidence of addressing the problem sometimes seems to antagonize the judge.

So, again, step one is to admit a problem. Second, a multiple DWI offender should be doing everything possible to address both the drinking problem and the problem of drinking and driving. At a minimum, this means regular and frequent AA meetings. Better yet, it means serious alcohol counseling and even in-patient rehab if necessary to address the problem. It means doing these things from day one of the arrest, not a week before sentencing.

A defendant in this situation should understand that it does not matter what he or she thinks about the problem. The courts view it very seriously and it is the court that has the power to put a DWI driver in jail for a long time. It is also the court that can minimize jail time for those offenders that it believes to be taking the matter seriously and insuring that it never happens again.

Those that fail to take the matter seriously on their own will soon recognize the gravity of the situation as they are led off to jail. At some point, one must admit that this is a problem!

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals of State v. Gurule once again expands the scope of DWI and DUI. The Court made clear that DWI is a strict liability crime meaning no intent is required. The Court also expanded the strict liability of DWI to "impaired to the slightest degree" cases.

The defendant, Bertha Gurule, was suffering from a cold. She stayed home from work going to her to mother's home to be with her mom and sister. Her mother gave her a homebrewed cold remedy which included a shot of bourbon. Ms. Gurule also took some cold medicine. Her sister received a phone call alerting them that a granddaughter was in the hospital. Not realizing that the cold remedy had bourbon or that the cold medicine contained alcohol as many common cold formulas do, Ms. Gurule drove to the hospital. Upon leaving the hospital hours after consumption of the home remedy and the cold medicine, she was stopped and charged with DWI.

There was no breath alcohol score even mentioned in the case suggesting a breath alcohol score below the .08 limits. Ms. Gurule was prosecuted on the "impaired to the slightest degree" standard.

Remarkably, the court determined that DWI, even under the "impaired to the slightest degree" standard, is a strict liability offense. The court made clear that it does not matter whether Ms. Gurule knew that the cold medicine or home remedy contained alcohol. It does not matter that she had no intention of consuming alcohol. And of course under the impaired to the slightest degree standard, it does not matter what her breath or blood alcohol level was at the time of driving.

In this case, there was some liquor involved. However, might it be possible to get a DWI strictly through the use of cold medicine. As the law stands now, sure it is. Recall that drivers are now being convicted of DWI under the same vague and meaningless "impaired to the slightest degree" standard for prescription Ritalin or Adderall, drugs formulated to increase focus and concentration. So was it even necessary to mention the home remedy with bourbon? Why not prosecute drivers for taking cold medicine? After all, many common cold formulas contains alcohol and they can cause drowsiness, as indicated on the label.

House Bill 392 which would have gotten rid of the "impaired to the slightest degree" standard failed to pass for the third year running. As the law now stands, any alcohol, no matter the source and no matter the level, may lead to a DWI conviction. Worse yet is the very long list of prescription drugs that arguably would impair a driver to the "slightest degree." To this list, one would be prudent to add cold medicine.

Hopefully, House Bill 392 or its equivalent will pass next year. To encourage correction of this legal anomaly, you can contact your legislator. In the alternative, don't get sick or get a home based job, and don't have kids, one might get sick as happened in State v. Gurule.

Collins & Collins, P.C.
Albuquerque Attorneys

House Bill 392 has been re-introduced this year. It has been introduced twice in the past with no success. After reading, please contact your legislators to encourage passage of this bill.

The bill does a couple of things. First, it gets rid of the "impaired to the slightest degree" standard for DWI convictions. I have written plenty in the past with the many problems associated with this amazingly vague standard. Suffice it to say, you can toss all you ever believed about the .08 breath alcohol standard. Instead, a driver is impaired if the officer says so whether or not below the limits and it is then the burden of the driver to prove in court at great legal expense that he or she was not impaired.

This brings us to the second part of the bill, and the recent Ron Bell case. The bill states that it is not a crime to take medication in the lawfully prescribed dosage where there is no FDA prohibition or warning against driving while on the prescription medication. One would have assumed that this was always the case. It is not.

Ron Bell was arrested for prescription Adderall. Adderall, like Ritalin, is a commonly prescribed medication for ADD/ADHD both for children and adults. Of note, there are no driving prohibitions while on Ritalin or Adderall. In fact, research shows that the medication improves driving. This makes perfect sense since the medication is prescribed for attention deficit disorder. What does not make sense is to institutionalize distracted driving by discouraging the use of these medications.

But this is exactly what the Ron Bell case suggests. The same impaired to the slightest degree standard applies to prescription drug use. There is no other established standard. In fact, there are no established levels for safe driving for most prescription drugs, including Adderall and Ritalin. Again, it comes down to the officer's judgment. In short, any admission to prescription medication may get you a tour through the criminal justice system.

There is a much glee surrounding Ron Bell's conviction. The press is replete with gloating headlines regarding the high profile lawyer that sues drunk drivers getting convicted for DWI. Once the gloating stops, one might consider his or her own medicine cabinet. One might consider the teenage driver in the family that must take Adderall or Ritalin to function normally.

Now consider the other prescription drugs in your cabinet and what the State might say about those. If the State will argue that a drug like Adderall or Ritalin, scientifically formulated and proven to improve focus, impairs one's driving to the "slightest degree," what about your anti-anxiety or anti-depression medication? Or how about how that allergy medicine that makes you a little bit drowsy (it says so right on the label)?

Collins & Collins, P.C.
Albuquerque Attorneys