Albuquerque Criminal Lawyer Blog

In the case of Missouri v. McNeely , the United States Supreme Court recently addressed the legality of a warrantless, non-consensual blood draw in a DWI investigation. More specifically, the Court addressed whether there could be a per se blanket rule exception to the 4th Amendment under the exigent circumstances exception in DWI investigations.

The Court ruled that there could be no such per se rule. Instead, the cases must be analyzed on a case by case basis. As a result, there was nothing justifying a per se rule, but there was likewise nothing suggesting a per se rule prohibiting such non-consensual, warrantless blood draws.

In the McNeely case, the Court held, based upon the circumstances of the case, that the blood draw was a violation of the 4th Amendment search and seizure protections. Instead, McNeely was no more than a routine DWI investigation with nothing suggesting exigent circumstances necessary for an exception to the warrant requirement.

For those in New Mexico, it is important to understand the limitations of the opinion. It would be unwise to read too much into the opinion with potentially serious consequences for your rights.

First, as suggested, the Court stated that these cases must be analyzed on a case by case basis. In short, there may be a situation where a warrantless, non-consensual blood draw is allowable. The Court discussed a number of such past cases.

Second, the Court in no way suggested that a non-consensual blood draw would be disallowed where a warrant was properly secured and executed. In fact, the Court explicitly recognized the ease and speed with which a lawful warrant for a blood draw may be obtained. In those situations where the warrant is legally obtained, then there simply is no prohibition against a non-consensual blood draw.

Perhaps, most importantly for New Mexico drivers, it must be recognized that there are consequences for a refusal to consent to a blood and/or breath alcohol examination that are independent of the criminal charges. Under the New Mexico Implied Consent Act, a refusal has several automatic and quite serious consequences.

First, a refusal will result in the automatic revocation of your driver's license. Under New Mexico law, a refusal carries a mandatory and automatic 1 year license revocation. In addition, the license revocation is independent of the criminal charges. In other words, even if you are successful in excluding the illegal blood draw as in the case of McNeely and you thereby are acquitted of the DWI charges, the license revocation still stands. Your guilt or innocence in the DWI criminal proceedings in no way affects the Motor Vehicle Division's revocation of your license.

Second, refusal of a breath and/or blood alcohol test will result in the aggravation of your charges. In other words, you will be charged with Aggravated DWI instead of simple DWI. Aggravated DWI carries mandatory jail time. In cases of repeat DWI offenders, conviction for aggravated DWI carries increasingly severe mandatory jail time.

Finally, a blood and/or breath test is not necessary for a conviction. The test could be excluded and you could still be convicted under New Mexico's "impaired to the slightest degree" standard. The rule originated to deal specifically with refusals. This is a fairly easy standard to meet and a blood/breath alcohol test is by no means necessary to meet it.

In short, there are consequences for refusal to provide a blood or breath sample. Though the McNeely case certainly provides important 4th Amendment privacy protections for DWI suspects, it is by no means a get out of jail free card. In fact, there is no such get out of free jail card in DWI cases. And if you can't get out of jail free then you might want to avoid jail altogether and this can be done only by not drinking and driving.

Related Reading:
DWI/DUI: License Revocation Under the New Mexico Implied Consent Act
DWI/DUI: The True Standard in New Mexico is Impaired to the Slightest Degree
Factors Leading to a Charge of Aggravated DWI in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Under the Implied Consent Act (ICA), every person driving a vehicle within the state of New Mexico is deemed to have given his or her consent to a breath alcohol test and/or blood alcohol test if suspected of DWI.

Under the ICA, every time an individual gets behind the wheel of a car in New Mexico, that person automatically gives consent to a blood alcohol test if arrested for any acts committed while driving under the influence of either drugs or alcohol or both. If a law enforcement officer has reasonable grounds to believe that an individual was driving a vehicle under the influence of drugs or alcohol, the officer may order a blood test or administer a breath test or both.

A law enforcement officer usually administers breath tests. However, under the ICA, only a physician, licensed professional, nurse, or lab technician employed by a hospital or physician can withdraw blood for the purposes of testing the level of alcohol and drugs present. The person being tested has the right to have a qualified physician, technician, etc. of their choosing to perform an additional chemical test besides the one being ordered by law enforcement. The law enforcement agency that orders the tests is responsible for the costs of both the test ordered by law enforcement and the additional chemical test, if requested by the arrestee.

The results of the blood and breath tests can be used in criminal and civil cases involving the actions allegedly committed by the person driving under the influence. Blood alcohol test results create a number of assumptions when used in court. Under § 66-8-110, if a person's blood alcohol level is below .04, there is a presumption that the person was not under the influence of alcohol. Also, when an individual's blood alcohol level is between .04 and ,08, there is no presumption that the individual was under the influence unless he or she was driving a commercial vehicle. To determine whether the person was under the influence in this case, other evidence will be considered along with the individual's blood alcohol level. When a person is driving a commercial vehicle, he or she is presumed to be under the influence if alcohol if their blood alcohol level is .04 or above.

The ICA is also very strict with underage drivers who get behind the wheel while under the influence of drugs and alcohol. Under the ICA, individuals less than 21 years of age driving with and alcohol level of .02 or over will have their driving privileges revoked.

Under § 66-8-108 if a person is incapable of refusal, that person shall be deemed not to have withdrawn consent. A person may be rendered incapable of refusal if they are unconscious, dead, or suffering from any other condition that may make refusal impossible. However, since the person is deemed not to have withdrawn consent, alcohol level tests ordered by a law enforcement officer may be administered to a dead or unconscious person.

If a person refuses to consent to a blood or breath test, they are in violation of the ICA and can be charged with aggravated DWI under NMSA § 66-8-102(D)(3). Refusing of consent will also result in the automatic revocation of an individual's driver's license.

If you have been charged with DWI and you refused testing under the Implied Consent Act, it is important to understand your rights under the law. An experienced DWI defense attorney can help you do just that.

Related Reading:
New Mexico's Implied Consent Act Leaves No Room for Indecision in Consent to Alcohol Testing
DWI/DUI: License Revocation Under the New Mexico Implied Consent Act
Independent Blood Test in New Mexico DWI/DUI Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The Federal Indian Country Crimes Act limits the ability of state and local law enforcement officials in charging Native Americans with crimes when the alleged crime occurs on Native American land. This raises the issue of what is considered Native American land.

While certain situations are simple such as historical treaty land, allotted lands or lands later federally recognized as Indian lands, other situations are more complicated. The recent New Mexico Court of Appeals case of State v. Vandever presented one such more challenging case.

The question in Vandever was whether land purchased by a tribe, used by the tribe and for the benefit of the tribe constituted tribal lands. The question might seem to answer itself. However, there were added complications. Most notably that the land was neither within the historical boundaries of the tribe nor had it been officially designated tribal land by Congress.

The defendant was driving under the influence of alcohol, when he struck and killed a highway worker. He continued driving leaving the scene until later stopped by the police. The officer smelled alcohol. When asked, the defendant admitted to drinking a six-pack of beer. The defendant then took a blood test, which revealed the defendant had a blood alcohol level of .19%.

The defendant was charged with an aggravated DWI, homicide by vehicle and knowingly leaving the scene of an accident. In court, he argued that the court did not have jurisdiction because he is a member of the Navajo Nation and the incident occurred on the Navajo Nation land.

Interestingly, both the defendant and the prosecution agreed that the incident occurred on land purchased and owned by the Navajo Nation. The issue then became, whether the land owned by the Navajo Nation was considered part of the Navajo reservation under the Indian Country Crimes Act, thereby preventing the police from charging the defendant in New Mexico State Court.

The Court noted and the testifying experts agreed that the historically drawn borders of Indian lands, including that of the Navajo Nation, have changed or time stating:

"...since the 1868 treaty was signed, there have been changes made to Navajo Nation treaty boundaries by congressional acts of diminishment, temporary expansions of boundaries, allotments of parcels of land to individual Indians, and return of land to the public domain."

The Court placed the burden on the defendant to prove that the crime occurred within then existing tribal boundaries. It was not enough that the tribe owned the land and used it for tribal purposes. The land had to be federally recognized as tribal land at the time of the crime which the defendant was unable to show.

The case makes sense in that tribal sovereignty without the distinction of federal recognition could be greatly expanded through the simple purchase of lands for tribal use. This was never the intent of Congress at the time of the 1868 Treaty or since.

And in the end, keep in mind, that had the State of New Mexico not assumed jurisdiction over the case, the U.S. Attorney surely would have. So a victory may have been short-lived in any event.

Related Reading:
Factors Leading to a Charge of Aggravated DWI in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

One of the most common grounds for dismissal of criminal cases is violation of the Sixth Amendment Confrontation Clause. The Sixth Amendment has been used in several situations to exclude testimonial evidence and is closely guarded by U.S. courts. A recent example of this is the U.S. Supreme Court case of Bullcoming v. New Mexico.

In Bullcoming v. New Mexico the defendant was charged with DWI. The prosecution's main evidence consisted of a forensic laboratory report that certified that the Defendant's blood alcohol level was above the threshold for aggravated DWI in New Mexico. The Defendant's blood sample was tested in the New Mexico Department of Health's Scientific Laboratory Division (SLD).

However, the forensic analyst who completed, certified, and signed the report had by the time of the Defendant's trial been placed on unpaid leave, and was not called as a witness by the prosecution. The prosecution did not state that the analyst was unavailable but instead called another analyst employed at SLD to validate the report. The second analyst was familiar with the testing procedures but had not participated in the testing of the Defendant's blood.

At trial, the second analyst was allowed to testify over the Defendant's objection and the blood alcohol report was entered into evidence. The Defendant was convicted and appealed, arguing that his rights under the Confrontation Clause of the Sixth Amendment had been violated. The Supreme Court agreed with him and reversed the conviction.

The Confrontation Clause of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. Under the Sixth Amendment, testimonial evidence is inadmissible in court against a defendant unless the witness is present and the defendant has an opportunity to cross-examine the witness on their testimony.

Statements made by a witness outside of court are not admissible unless the witness is unavailable and the defendant had a previous opportunity to cross-examine that witness on their testimony. Out of court testimony includes not only witness statements, but also autopsy reports, forensic analysis results, etc. In accordance with the Confrontation Clause, the person who created the report or was present to observe when the report was being made must in most cases be present in court for the report to be admissible.

In Bullcoming v. New Mexico, the U.S. Supreme Court held that it is a violation of the Confrontation Clause to introduce a forensic lab report in order to prove a fact at trial through the testimony of an analyst who did not personally perform or observe the test or who did not sign the certification of the test. According to the Supreme Court, it is the right of the Defendant to confront the particular analyst who certified the report.

While this may at first seem at odds with New Mexico v. Gonzales later decided by the New Mexico Court of Appeals, the two cases are consistent. In Gonzales, the Court stated that the prosecution could not call an expert witness simply to parrot the findings of an autopsy report in place of the analyst who originally created the report. However, an independent analyst could use otherwise inadmissible report to come up with his or her own conclusions and opinions if the evidence was routinely used by analysts in the field.

The difference between the two cases is that in Bullcoming the second analyst was simply validating a report created by someone else while in Gonzales the expert witness would use the autopsy report created by another to draw her own independent conclusions. While this may seem like splitting hairs, it could make a serious difference in a criminal trial.

The outcome of criminal cases often turns on the admission or exclusion of evidence. It is important discuss these matters with an experienced criminal law attorney.

Related Reading:
Factors Leading to a Charge of Aggravated DWI in New Mexico
Confrontation And Victim Identifications
Prosecution Medical Experts and the Confrontation Clause in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

According to a study by the New Mexico Department of Transportation, there were 2,599 alcohol-related automobile crashes in New Mexico in 2008. Of these, 765 involved serious injuries, and 143 fatalities. These numbers were all higher than the national average.

DWI is clearly a very serious problem in New Mexico. Perhaps for this reason, DWI is generally a strict liability crime in New Mexico and elsewhere, which means that it need not be proven that the defendant intentionally drove drunk. Proof of intent in these situations would be quite challenging to say the least largely defeating the goal of eradicating DWI in the state.

Strict liability crimes differ from specific intent crimes. Specific intent crimes require the perpetrator to have some kind of intent to perform a further act or accomplish a certain goal. A criminal prosecutor must prove that a person acted knowingly and purposefully to achieve a certain goal--murder someone, injure someone, take someone's money--in order to obtain a conviction for a specific intent crime.

In contrast, strict liability crimes do not require proof of a specific intent on the part of the defendant. A person may be found guilty of a strict liability crime even if they did not intend the outcome of their actions. DWI in New Mexico is a strict liability crime in that even though the prosecution will have to prove the elements of the offense under NMSA § 66-8-102, there is no additional requirement to prove specific intent by the defendant to drive while intoxicated.

In New Mexico, the prosecutor must show that the defendant was under the influence of either intoxicating liquor or drugs while driving a vehicle within the state. A prosecutor will have to prove all of these elements beyond a reasonable doubt to obtain a DWI conviction against a defendant. However, there is no requirement to prove any intent to drive under the influence of either drugs or alcohol.

In recent years New Mexico courts have made a clear distinction regarding strict liability DWI depending on whether the vehicle is in motion or not. If the vehicle is in motion, DWI is a strict liability crime where the prosecution is not required to prove specific intent by the defendant to drive while intoxicated.

However, after the State v. Sims (NMSC-2010-027) opinion, if an officer comes upon a vehicle that is not in motion, the prosecution may have to prove intent to drive while intoxicated. This can be the case when a person is sleeping or resting in their car in an attempt to sober up, keep warm, or "sleep it off." The New Mexico Supreme Court ruled that when a vehicle is stationary, the prosecution will have to prove either a general intent to drive or circumstantial evidence of past driving.

"General intent" means that the prosecution will have to prove that an act was committed deliberately and not by accident. The prosecution does not have to prove that the defendant intended the exact harm that occurred. In the context of proving DWI when a vehicle was not moving, the state will have to prove that, beyond having actual control of the automobile--say, by sitting in the driver's seat--the prosecution must prove that the defendant intended to actually drive the car while impaired a was not just sitting in the driver's seat to keep warm or sober up.
Circumstantial evidence of past driving can be shown by the defendant's own admissions, the position of the defendant in the vehicle, the position of the keys, the location of the vehicle next to the highway or road, other witness accounts, and similar information.

If you are charged with a DWI, it is advisable to seek the guidance of an experienced DWI attorney.

Related Reading:
Sleeping While Intoxicated No Longer a Crime in New Mexico!
Proposed New Jury Instruction to Address Sleeping While Intoxicated
DWI Without Driving: Passenger Liability for DWI!

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals recently issued an opinion that clarified what punishment applies to ATV drivers who are intoxicated and who cause an accident resulting in injury or another person's death. Under State v. Natoni, off-highway vehicle drivers who are intoxicated will be punished under the more strict New Mexico DWI statute though also governed by the Off-Highway Motor Vehicle Act (OHMVA).

In the Natoni case, the Court held that the relatively lenient penalty scheme in the OHMVA excluded violations where the accident resulted in a person's injury or death. Additionally, the Court held that the penalties for driving an ATV while intoxicated were the same under the New Mexico DWI statute and the OHMVA.

The facts of the case involve the Defendant crashing his ATV into a telephone pole on a public road while under the influence of alcohol. The Defendant's passenger was injured in the accident. Defendant was found guilty and sentenced under New Mexico's DWI statute. His sentence was ultimately reduced to 90 days in jail and a $250 fine. The Defendant challenged his sentencing under the DWI statute on appeal, arguing that he should have been sentenced under the OHMVA and received a $10 fine. The Court of appeals disagreed and affirmed the sentence and fine.

The Court clarified that the OHMVA involves the operation of off-highway vehicles, but it specifically excludes violations that "caused or contributed to the cause of an accident resulting in injury or death to a person." Since the accident resulted in the injury of the Defendant's passenger, Defendant could not be sentenced under the OHMVA.

The Court then went on to explain why the penalty for DWI under the OHMVA is the same as under the DWI statute. The OHMVA includes driving under the influence as one of the 12 prohibited actions while operating an off-highway vehicle. However, the OHMVA does not address the punishment for this specific violation in its sentencing scheme.

The Court reasoned that the punishment for driving a while intoxicated was the same as under the DWI statute for 2 reasons: (1) the section that prohibits driving while intoxicated in the OHMVA makes a reference to the DWI statute and (2) the DWI statute applies to an ATV because an ATV is a "vehicle" for the purposes of the statute.

Section 66-3-1010.3(A)(2) of the OHMVA prohibits operating an off-highway vehicle "while under the influence of intoxicating liquor or drugs as provided by Section 66-8-102 (the New Mexico DWI Statute)." However, DWI is the only violation not included in the OHMVA penalty scheme.

Even though the wording of Section 66-3-1010.3(A)(2) could have been more clear, (1) the fact that it specifically refers to the DWI statute, (2) does not include DWI in the OHMVA penalty scheme, and (3) in light of other legislative actions punishing DWI more severely, the Court concluded that the New Mexico Legislature meant to punish DWI under the OHMVA the same way as other DWI offenses.

If you are charged with a DWI while ATV'ing, you should contact an experienced criminal defense attorney immediately. The recreational character of your drinking and driving make it no less serious under the DWI laws of New Mexico.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals decision in State v. William Sharp clarified the 2008 amendments to Rule 6-506 NMRA, also known as "the six-month rule," and the standard for its review by a district court. The "six month rule" is a shorthand term which generally refers to a criminal defendant's right to a speedy trial under the 6th Amendment --within six months of his or her arraignment. This latest decision may have an impact on the number of cases dismissed on the basis of the six-moth rule.

In State v. Sharp, the defendant was charged with aggravated DWI in March of 2009. The defendant waived his arraignment on March 23, 2009, which triggered the six-month rule. Under Rule 6-506, a defendant's trial must begin within 182 days of arraignment or waiver of arraignment. A court may extend the 182 days if it believes that there are circumstances beyond its control that prevent the trial from beginning within the allowed period. The extension may not exceed 60 days. Pursuant to the rule, defendant's trial had to begin by September 21, 2009. Trial was set for August 4, 2009.

However, six weeks before his trial, the defendant filed a motion to suppress evidence, and four days before his trial was set to start, the defendant requested a continuance. The continuance was granted and the trial was rescheduled for October 2nd. On the day of the hearing on the defendant's motion to suppress, the defendant sought to dismiss the entire case based on violation of the six-month rule. In a written order, the magistrate court denied the motion to dismiss. The defendant was subsequently found guilty in a jury trial on October 28th.

The defendant then appealed to the district court and filed another motion to dismiss based on violation of the six-month rule. The district court overruled the magistrate court and dismissed the case. In so doing it asserted that the State failed to file a written response to the motion to dismiss in magistrate court and that the magistrate court was required to state on record the extraordinary circumstances requiring an extension to the six-month rule.

Last week, the New Mexico Court of Appeals reversed the decision of the district court, remanding the case for a determination of whether, under the particular facts, the violation of the six-month rule warranted a dismissal of the case. The appellate court reversed on two main grounds: (1) the district court's improper standard of review; (2) the district court's misconstruing of the amended six-month rule.

The Court of Appeals began its discussion by explaining the difference between the old six-month rule and the amended six-month rule. While the old rule made it mandatory for courts to dismiss a case for non-compliance with the 182-day period, the current six-month rule gives courts discretion to decide whether to dismiss or impose other more suitable sanctions in accordance with the specific facts of each case.

In addition, the appellate court found that the district court erred in the way that it reviewed the magistrate court decision. The district court based its decision on appellate review of the magistrate court's actions rather than de novo review of whether the particular facts of the case warranted dismissal for violation of the six-month rule. Appellate review gives deference to the lower court's decision, while in a de novo review the district court is in no way bound by the lower court proceedings.

In New Mexico, speedy trial rule violations are perhaps the most common basis for dismissal, particularly at the misdemeanor level. Most of New Mexico's magistrate, municipal and metropolitan level courts are fairly strict in the enforcement of the 182 day (speedy trial) rule. It remains to be seen how this ruling will affect future court practices and how this will impact the rights of criminal defendants in New Mexico. Arguably, it should not because typically there will be no extraordinary circumstances present to justify a violation of the U.S. Constitution.

Collins & Collins, P.C.
Albuquerque Attorneys

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