Albuquerque Criminal Lawyer Blog

In State v. Toms, the New Mexico Court of Appeals addressed the foundational requirements for admission of breath alcohol score results in a DWI trial. The Court in Toms reiterated the ruling in the 2007 New Mexico Supreme Court case of State v. Martinez. In addition, the Court expanded on Martinez in addressing the proper procedural grounds by which a defendant may attack the foundation of the breath alcohol results.

The Court first stated that calibration of the machine by the officer was not enough. Though calibration of the machine is a measure to insure the accuracy of the breath alcohol score, it is insufficient to establish the foundation for admission of the score into evidence at trial. In addition, as stated in Martinez, the State must prove by a preponderance of the evidence that the machine has been properly certified and the certification is current at the time of the test. The State in short must show that the machine has been properly certified, the certification is current, and the machine was certified by the Scientific Laboratory Division of the Department of Health (SLD).

Failure to fully establish the foundation for admission of the breath alcohol score will render the evidence inadmissible. These foundational requirements are meant to insure the accuracy of the breath alcohol scores and to protect defendants against unreliable or inaccurate tests results. The State argued that the defendant must raise the issue prior to trial. Effectively, the State argued that the defendant was obligated to alert the State to weaknesses in its case prior to trial in essence providing the State with the opportunity to cure the defect.

Fortunately, the Court disagreed. This foundation is the State's responsibility, not the defendant's. The Court expressly expanded on Martinez to address the State's argument. The Court stated that the defendant has no obligation to raise the deficiency in the State's case via pre-trial motion as the trial court and the State had suggested. The Court stated that the state has the burden of laying the foundation for the breath alcohol test results and that the Court would not "require the defense to file a pretrial motion simply to advise the prosecution that it may have a defect in its proof or some problem in establishing the appropriate evidentiary foundation."

DWI is enforced very vigorously in New Mexico for good reason. DWI is a threat to the safety of all of us and our families who drive New Mexico roads. However, on occasion, DWI is perhaps enforced a little too vigorously as was the recently invalidate practice of arresting drivers who were sleeping in their cars, and the continuing practice of arresting and prosecuting drivers at breath alcohol levels below .08. Fortunately, the Court in State v. Tom has not shifted the burden of prosecution to the defendant him or herself by placing the responsibility of foundational elements to the defendant. After all, the defendant should not carry the burden of prosecuting him or herself despite the efficiencies that would come from such a requirement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The presumptive breath alcohol level for driving is .08. A driver who blows over .08 is presumed to be DWI. There are no such levels established for drugs and driving. This issue is becoming more prevalent with increasing trends by Albuquerque and Rio Rancho police to arrest drivers who are on prescription medication.

The problem has made headlines recently with DUI charges against Ron Bell, a well known local Albuquerque attorney. Ron Bell was arrested for the use of prescription methylphenidate, Ritalin, which is commonly used for the treatment of ADHD. In fact, studies show that treatment of ADHD actually reduces driving risks so any policy that would deter ADHD drivers from taking their prescription medications will actually put New Mexico drivers and their families at risk.

The trend toward arresting drivers on prescription medications is problematic for any number of reasons. First, the medications may be necessary for the individual to function, i.e. go to school or work. Second, many of the medications for which drivers are being charged do not impair driving ability at therapeutically prescribed levels. Finally, and most importantly, there are no standards for when an officer can make an arrest. The arrest decision is left entirely up to the officer.

The problem resembles the "impaired to the slightest degree" standard used in DWI to convict drivers at breath alcohol levels well below .08. The "impaired to the slightest degree" standard and the complete lack of standards for prescription drug use leads to some interesting due process issues. So how do you know when a driver is impaired? Arriving at the answer to that is pretty straightforward. In a bench trial without the benefit of a jury the answer is easy. Though, there may be some theatrics and a few procedural protocols, it comes down to the prosecutor and the judge asking the cop what he or she thinks. If the cop says you are impaired, you are impaired unless your attorney can convince the judge otherwise. Juries are much more discriminating. Unfortunately, first time DWI's are not eligible for a jury trial.

There are many that take the position that any alcohol, no matter how little, is too much for driving. There are others that cry that any drugs and driving are unacceptable. Its more than a little ironic that Ron Bell fit into the first group as the self-anointed punisher of drunk drivers and now falls prey to the second. Both those in the first group, like Mr. Bell, and those in the second might want to consider the implications for both due process and their family's safety when getting behind what appears to be a trending policy toward arresting drivers for prescription medication use without the benefit of any standards to protect against wrongful conviction.

Most officers are honest and professional. But even honest officers could have problems here. There simply are no standards forcing officers to err on the side of caution. This may be fine for most endeavors but not criminal justice. The standard for conviction is "beyond a reasonable doubt." How is this standard of proof applied to a crime that has no definition?

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Most in Albuquerque have heard about the recent DWI arrest of well known personal injury attorney Ron Bell. He was arrested and charged with DWI. These charges were dismissed against Bell when the Breath Alcohol score came back at 0.0%. He has now been charged with DUI for the presence of prescription methylphenidate, more commonly known as Ritalin in his blood alcohol results. Methylphenidate is regularly prescribed for attention deficit disorder.

Bell has been charged with DUI despite the fact that his blood levels are within therapeutic ranges on the often abused legal standard of "impaired to the slightest degree." It is not clear why he is being charged. It could be overzealous DUI enforcement, the same zealotry that led to the arrest of drivers sleeping in their cars. It could be related to a need for DUI arrest numbers. It could be related to a fear of a pretty significant personal injury suit against the City of Albuquerque and the Albuquerque Police Department for the wrongful arrest of Ron Bell in the first place.

Why is in important to you? It is important because attention deficit hyperactivity disorder (ADHD) is a major cause of auto accidents in both teenagers and adults. Any trend by Albuquerque police or any other law enforcement agency in New Mexico toward arresting and charging drivers for the use of prescription methylphenidate will place you, your family and all other drivers on New Mexico roads in peril. And for no good reason other than beefing up DUI arrests and conviction statistics.

In fact, an article from the Journal of Safety, published by the National Safety Council and written by a panel of writers including Russell A. Barkley, Ph.D. a leading expert in the field of ADHD, clearly illustrates the dangers of a trend toward DUI arrests and conviction for the therapeutic use of methylphenidate.

The article states the well accepted conclusion that ADHD does cause heightened driving risks in both teens and adults. The article further concludes that control of ADHD through medication such as methylphenidate is necessary to reduce these risks. In fact, the authors go so far as to suggest that employers screen and treat drivers for ADHD to reduce driving risks of their employees.

Clearly, DUI arrests and conviction of drivers for prescription use of methylphenidate will deter the use of these medications for the treatment of ADHD. As a result, there will be an increase in untreated ADHD drivers as drivers will have to choose between proper medication and jail. So once again, overzealous and misguided DWI/DUI enforcement has placed you, your family, and all other drivers in New Mexico at risk.

As much pleasure as some take in seeing a well recognized attorney arrested, including some in the media, you would be well advised to contact your representatives to express your concern for this trend. It is important well beyond whether or not Ron Bell is convicted. It is dangerous public policy that jeopardizes the safety of all those that drive our streets, including you, your family and loved ones.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court expanded on its ruling in State v. Sims in the case of State v. Mailman. Sims addressed the problematic situation that had arisen by overly aggressive DWI/DUI enforcement in the arrest and prosecution of drivers found sleeping in their cars after drinking.

Sims stated that for a DWI arrest in such situations, the driver must have been in actual physical control of the vehicle as evidenced by both control and intent to drive. Sims set forth several factors to be considered in the issues of control and intent which have since been formalized in proposed jury instructions to address sleeping while intoxicated. These factors include:

1) whether the vehicle was running, 2) whether the ignition was in the "on" position, 3) where the key was located, 4) where the driver was located, 5) whether the person was asleep, 6) whether the headlights were on, 7) where the vehicle was stopped, 8) whether the driver had voluntarily pulled off the road, 9) the time of day, 10) the weather conditions, 11) whether the heater or A/C was on, 12) whether the windows were up or down, 13) whether the vehicle was operable, and 14) any reasonable explanations justified by the circumstances.

The Court in Mailman reiterated the finding in Sims stating that intent may not be inferred by control of the vehicle. The court stated that actual physical control requires not only control but intent, suggesting that each be proven independently. The court explicitly overruled State v. Tafoya which involved a conviction of a driver found in an inoperable vehicle that had stalled in the middle of a major street because the court had failed to consider control and intent as set forth in Sims.

In Mailman, the driver was found highly intoxicated in his broken down vehicle in the parking lot of a convenience store. The driver admitted to being intoxicated and admitted to having driven to the store. The State presented two different theories to the jury, 1) he was actually driving while intoxicated, and 2) he was in control of the vehicle while impaired to the slightest degree. The jury found the defendant guilty but it was not clear on which theory the verdict was rendered.

The Supreme Court in Mailman found that though defendant might have legitimately been convicted for actual driving while intoxicated which was basically admitted by defendant, there was insufficient evidence presented by the State for conviction based upon actual physical control under Sims. Because it was not clear on which grounds the conviction rested, the legitimate or illegitimate grounds, the verdict was reversed.

The Court expanded on Sims in holding that actual physical control, control plus intent to drive, may be established by eyewitness testimony of defendant's driving. However, in the absence of eyewitnesses, the State must prove actual physical control as set forth in Sims adding that defendant's own admissions may/should be taken into consideration. In other words, Mr. Mailman dodged a bullet as a result of the prosecutor's failure to settle on one theory or another.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

The court cited State v. Ochoa as follows:

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

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

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

Broad discovery is fundamental to due process in the defense of criminal charges. The New Mexico Court of Appeals addressed the issue in State v. Ortiz. The court stated that a defendant is entitled to all discovery that might reasonably relate to the defense. The defendant need not know in advance that the records, documents or other evidence are helpful, but only that they might possibly be helpful to the defense.

Ortiz involved a DWI stop. The officer stated in grand jury testimony that he stopped the defendant due to erratic driving behavior. Through discovery, the State provided a videotape of the incident. However, the video was missing 6 minutes of footage. The defendant insisted that the State provide the excised portion of the tape. The State refused stating that the missing portion was irrelevant to the case. The defendant also requested the officer's cell phone records for the missing 6 minute period. Again, the State refused stating that the officer had an expectation of privacy in his personal cell phone records.

The district court ordered the State to provide both the missing video footage as well as the officer's cell phone records for the six minute period. The State refused. The Court, exercising its discretionary authority for discovery violations, suppressed all evidence arising from the DWI stop which resulted in dismissal of the case. The Court of Appeals affirmed the district court's dismissal of the case.

The Court of Appeals reiterated the liberal discovery standard in criminal cases. The court cited United States v. Lloyd, a 1993 D.C. Circuit Court case, as follows: the "materiality standard...is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation , corroborating testimony or assisting impeachment or rebuttal."

The Court agreed with the district court that both the missing video footage and the officer's cell phone records during the missing 6 minutes might play a role in the defense. It was not up to the defendant to prove the materiality of the evidence. Instead, the defendant had the right to obtain and review the evidence for its materiality. The court indicated that liberal discovery was fundamental to the defendant's due process rights and his right to a fair trial.

The Court's ruling as well as the liberal rules of discovery are essential to the defense. In addition, they reflect plain common sense. A defendant would hardly be entitled to any discovery if it were required that he or she first show the materiality of the evidence before obtaining it. The materiality of evidence often cannot be known until it has been reviewed. In many cases, a review of the evidence may find that it is immaterial or otherwise inadmissible. But due process dictates that all potentially material or relevant evidence be disclosed. Only then can a determination of admissibility be undertaken. It takes little imagination to envision potential abuse of a less stringent discovery rule.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court recently addressed the applicability of the misdemeanor arrest rule to DWI/DUI arrests in City of Santa Fe v. Martinez. The case involved a tip from a mall employee who observed the defendant attempting to unlock several different vehicles in the mall parking lot before he finally ventured upon his own vehicle and drove away. The mall employee contacted the police providing the defendant's drivers license number.

A Santa Fe police officer traced the license to the defendant's home. The police officer went to the defendant's home where he found the defendant inside extremely intoxicated. The defendant voluntarily opened the door and allowed the officer into the home. He admitted drinking and having driven the vehicle earlier.

Based upon the defendant's statements, his visible intoxication, the smell of alcohol and other indicators of intoxication, the officer arrested the defendant. The defendant refused the breath alcohol test which resulted in charges for aggravated DWI.

The defendant moved to dismiss the charges for violation of the misdemeanor arrest rule which the court denied in Santa Fe Municipal Court. The defendant appealed to district court where the conviction was set aside. The City of Santa Fe appealed and the case made its way to the Supreme Court.

The misdemeanor arrest rule is a long standing rule requiring that an officer actually observe the misdemeanor offense in order to make a warrantless arrest. There is no such rule for felony arrest. The rule derived from the fact that misdemeanors are typically not as serious as felony crimes and pose a much lower risk to public safety.

The New Mexico Supreme Court determined that the misdemeanor arrest rule should not apply to DWI/DUI arrests. The court reasoned that unlike most misdemeanor offenses, DWI/DUI pose a very real, immediate and significant risk to public safety stating, "Given the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI should be treated as a felony for purposes of warrantless arrests." In addition, delay in investigation and arrest on DWI results in the loss of evidence of intoxication as the person begins to sober up. The court indicated that the misdemeanor arrest rule represents a balance between the rights of the accused and public safety. In the case of DWI, the balance according to the Court falls on the side of waiver of the misdemeanor arrest rule in DWI/DUI cases.

This is a significant development in DWI/DUI enforcement. It remains to be seen how this will play out in future DWI/DUI enforcement. The rule may impact the DWI police team concept as well as the need for both the stopping officer and DWI investigating officer at trial. It is likely that there will be future activity surrounding these issues as this case is incorporated into DWI enforcement practices.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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

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

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

There was an interesting editorial in the New York Times today about the broken criminal justice system. It was not interesting so much for the recognition of the problem and the fact that there apparently is a bi-partisan effort to study the longstanding problems and to provide solutions. It is far more interesting when viewed in terms of what is happening in New Mexico.

It is well accepted that U.S. prisons are brimming with non-violent offenders, the great majority of whom are drug offenders. It is also well recognized that the costs of housing theses inmates is extremely expensive. In fact, California has put forth a bill to release thousands of prisoners due to the financial strain that it is putting on the state. New Mexico is facing similar pressures.

None of this new and because everyone has heard it time and time again, most have become desensitized to the issues. This is particularly so in New Mexico and apparently acutely so in Albuquerque where the local press seems on a crusade to increase the incarceration rates for everything from first time DWI/DUI to domestic violence to drug offenses to immigration offenses to apparently every crime on the books. There seems to be a law and order movement in Albuquerque and New Mexico generally while much of the rest of the country is seeking less inhumane and oh yes, less expensive solutions to society's woes.

While California is releasing prisoners, Albuquerque Police in particular continue to arrest drivers for DWI/DUI even though they are under the legal limit of .08. They continue to arrest drivers for sleeping intoxicated in their vehicles. They continue to arrest individuals, many of whom are young, for minor possession of marijuana. They continue to arrest people for domestic violence when they come to the scene even when the alleged victim explains there was no domestic violence. And when they bring each of these fundamentally unjust charges, the prosecutors prosecute with little discretion to drop the charges despite the lack of any evidence, or evidence directly contrary to the charges. The prosecutors on the front lines are driven to prosecute by their bosses, who in turn are driven by politics and funding.

And judging by the recent articles and letters to editor, the public wants more it seems. This in turns drives the District Attorneys throughout New Mexico to dig in and push these cases toward trial. After all, District Attorneys are elected officials and they must listen to the masses. These cases have little to do with justice or the protection of society. To the contrary, as prosecutors are forced to push these cases toward trial by their bosses, the media, the new law and order Governor, and ill advised voters, they are pushing New Mexico toward bankruptcy. And the public gleefully cheers them on while at the same time screaming for lower taxes, smaller government, less government intrusion, greater individual rights, and on and on and on.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com