Albuquerque Criminal Lawyer Blog

Many times clients are confused on the difference between a criminal domestic violence action and a civil domestic violence action. There are many distinctions between the two, too many to enumerate them all here. In short, however, each is extremely serious and should be treated as such.

A criminal domestic violence action usually begins with a criminal complaint alleging battery on a household member or assault on a household member. In Albuquerque, these are filed in Metropolitan Court. In other areas, including Rio Rancho and Sandoval County, they are filed in magistrate court. In cases involving serious injury or deadly weapons, the cases will be filed as felony domestic violence and the case will eventually be transferred to District Court.

A civil domestic violence action begins with a Petition for Order of Protection Against Domestic Abuse. In most areas of New Mexico including Albuquerque, Rio Rancho and Santa Fe, these cases are heard by a domestic violence hearing officer. These are not criminal in nature. As such, the standard of proof is not as rigorous as in a criminal proceeding and sometimes it seems that the hearing officers are predisposed to make a finding of domestic violence despite the evidence. On the other hand, a finding of domestic violence in a civil hearing will not result in criminal penalties such as probation or jail time.

In both the criminal and civil domestic violence actions, the alleged perpetrator of domestic violence will be ordered to have no contact with the alleged victim. In a criminal case, the "no contact" provision will be in the Order Setting Conditions of Release. In the civil action, a Temporary Order of Protection is issued upon filing the Petition for Order of Protection from Domestic Abuse. This Temporary Order will remain in effect until the hearing which usually is set within 10 days of service of the Order on the Respondent (alleged perpetrator). If there is a finding of domestic violence at the hearing on the Petition for Order of Protection, the Order of Protection will be extended for 6 months. It may be extended an additional 6 months for good cause on a Motion to Extend Order of Protection.

In both the civil and criminal cases, a violation of the "no-contact" provisions have very serious consequences. Violations of these Orders is a crime. In fact, violation can be charged as a felony in the criminal case with very serious penal consequences. In the criminal case, the defendant will be arrested and the judge may order the defendant held in custody until the trial date. In addition, the defendant will likely face new charges including possible felony domestic violence. In the civil case, a violation of the no-contact order can and typically does result in a finding of contempt for which the Respondent can be taken into custody often times for 10 days, though the judge can order a longer time period.

In addition to the distinctions above, the jurisdiction of the court over matters related to the parties is very different. The family court domestic violence officer can address who stays in the home, generally the alleged victim. The domestic violence hearing officer can also address temporary child custody and time-sharing , and child support. The criminal court cannot address these issues as its jurisdiction is limited to criminal prosecution. However, the no-contact order in the Order Setting Conditions of Release often has the effect of awarding the home to the alleged victim.

It is important that you understand the difference in these two proceeding if you have been accused of domestic violence. Though the criminal case may appear much more serious, the reality is that the civil case has much broader consequences addressing property rights, child custody and child support. And of course, a finding of domestic violence in the family court has most of the same negative consequences of a criminal conviction such as immigration consequences, employment consequences and gun ownership to name a few.

In short, in either case, you should contact an attorney immediately upon learning of allegations of domestic violence. The possible consequences are too severe to take these matters lightly.

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The collateral consequences of a criminal conviction can often outweigh the criminal penalties. The employment consequences can be particularly problematic. The impact of a criminal conviction on employment can be difficult to determine because the laws and regulations are often industry specific and are therefore found in the industry codes and regulations.

However, it is clear that many convictions will impact future employment. Most employers (80% of large corporations and 69% of small businesses) conduct background checks on all employees. It is estimated that two-thirds of employers will not hire a former offender. Due to the widespread practice of background checks along with the reluctance to hire those convicted of crimes, chances are a conviction will have serious consequences for your future employment.

In fact, there are many occupations where employment is barred completely by a variety of offenses, not all of which are felonies. Most professions and occupations will bar licensure in cases of felony convictions. In addition, many also bar licensure in cases of dishonesty or fraud. These categories cover a lot of ground, not unlike the crimes of moral turpitude classification critical to immigration cases. Those professions involving fiduciary responsibilities such as banking and financial services also carry bans for convictions involving breach of trust and money laundering.

Even where a conviction does not create an absolute bar, licensing agencies often may refuse licensing on the grounds of moral character. Those offenses reflecting on moral character can be quite broad ranging from failure to pay child support, domestic violence/battery on a household member, crimes of dishonesty, fraud and certainly any felony conviction.

There a number of professions that bar employment for controlled substance offenses including the medical profession, law enforcement, and private security. And of course, convictions for controlled substance offenses can be used in judging moral character. The problem with the controlled substance conviction is that by statute in New Mexico, marijuana remains classified as a controlled substance. As such, a marijuana conviction can potentially harm potential employment opportunities in the future.

Finally, many occupations and professions will have occupation specific bars. The most obvious case is daycare and teaching for those convicted of sex crimes. Again, charges for sex crimes can sometimes involve what would appear to rational people to be relatively innocent behavior. The most egregious abuse of sex crime statutes involves prosecution of young men and women, and even children, for sexual exploitation for carrying or transmitting explicit pictures of friends/classmates on their mobile phones. A conviction for even this can carry lifetime registration as a sex offender with all the employment consequences of said registration.

It is important to know the employment consequences of a conviction as you move forward in your case. Unfortunately, some charges are so severe that there is little room to maneuver or avoid the possible employment consequences without taking even greater risks of criminal consequences. However, it is important that you understand all of the collateral consequences of a conviction which often go well beyond punishment by the courts.

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Federal prosecution for immigration violations reached a record high of 169,612 in 2009. According to the study out of Syracuse University, this number represents more than ½ of all criminal cases brought by the federal government.

Prosecution of immigration violations is up by almost 16% and reflects the Bush era policies of strict and speedy enforcement of the immigration laws. Many of the cases represent illegal reentry cases. Others related relate to crime related bases for removal and deportation. The Bush administration greatly increased the number of I.C.E (Immigration and Customs Enforcement) agents, Border Patrol agents, and federal prosecutors for purposes of enforcement.

Much of the increase is also, according the New York Times, related to the Department of Justice program Operation Streamline which relies on speedy and large-scale processing of plea bargains in immigration cases. It is suggested that the Department of Justice goes after the relatively simple immigration cases since these cases are very rapidly processed and closed compared to other cases. White-collar criminal cases take an average of 460 days for disposition. Narcotics cases take 333 days. By contrast, the immigration cases typically reach disposition in 2 days.

The success of the Operation Streamline program has now met with constitutional challenges particularly in Arizona which accounted for more than 22,000 of the federal criminal immigration cases in 2009. The 9th Circuit Court of Appeals recently ruled in U.S. v. Roblero-Solis that the process of mass pleadings is a violation of Rule 11 of the Federal Rules of Criminal Procedure regarding the taking of pleas in federal court. Interestingly, despite the finding by the court that the plea process was a violation of Rule 11 which fundamentally a Due Process protection, the convictions in the case were upheld since the defendants failed to show that the process affected their decisions to enter the pleas.

The growth in the number of immigration prosecutions shows that the Obama Administration is equally serious about immigration enforcement. In fact, the data from the Syracuse study indicate that the rate of prosecution has accelerated. These numbers appear to conflict with the Administration's public statements regarding immigration reform. Perhaps, the tough position on enforcement is seen as necessary for progress on future reform.

In any event, it is clear that immigration enforcement will remain a high priority at the Department of Justice for some time to come. In addition, though the mass plea process under Operation Streamline is a violation of Rule 11, it appears that the process will stand in light of the ruling in Roblero-Solis.

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In U.S. v. Pena-Montes, the 10th Circuit Court of Appeals addressed the legality of questioning under the 4th Amendment of an individual following a traffic stop. The case involved the prosecution of the defendant Jose Luis Pena-Montes for illegal reentry into the United States following his arrest following the traffic stop.

During the course of the traffic stop based upon the officer's belief that the car in which Pena-Montes was a passenger lacked dealer plates. Upon further investigation, the officer determined that the car did have dealer plates. However, he wrongfully believed that the use of dealer plates was restricted to certain times of day. Because there had been auto thefts from Albuquerque car dealers in the recent past, he suspected that the vehicle was stolen.

Due to his suspicions, he continued to question the driver. He then turned his questioning to Pena-Montes questioning him on his identity. Pena-Montes gave false and misleading answers regarding his identify. Due to the false identity provided by Pena-Montes, the officer arrested him for concealing identity.

Upon arrest, Pena-Montes was transported to and identified by Albuquerque Police identification. Upon identification, it was determined through the NCIC national database that he had previously been convicted of a felony in California and subsequently deported.

Based upon these findings, Pena-Montes was indicted on one count of illegal reentry of a removed alien following a felony conviction in violation of 8 U.S.C. §1326(a) and (b). Pena-Montes moved for suppression of all evidence derived from the traffic stop, including his identity. The district court denied his Motion finding that the questioning following the stop was not illegal under the 4th Amendment.

The Court of Appeals reversed the District Court holding that the officer had violated the 4th Amendment by continuing to question the occupants of the vehicle once the basis for the stop, illegal plates, was found to me missing. The Court provided an excellent analysis of search and seizure law in New Mexico

The court began by citing the 2008 10th Circuit case of United States v. Rodriguez-Rodriguez for the assertion that "A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment." Citing United States v. Winder (10th Cir. 2009), the Court set forth the requirements under Terry v. Ohio that the stop must be justified at its inception and the resulting detention must be reasonably related to the basis for the stop.

Under this standard, the Court found that the continuing questioning of both the driver and Pena-Montes did violate the 4th amendment prohibitions against illegal search & seizure since questioning continued following the determination that the basis for the stop proved to be lacking. Unfortunately, this may not have saved Pena-Montes as will be seen in part II of this blog.

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It is estimated that drug violence has claimed over 16,000 lives in Mexico during the past three years. These deaths have resulted from a virtual war between the Mexican government and the drug cartels. The cash crop is marijuana.

The cartels are turning increasingly to child runners. Mexican drug gangs are recruiting children as drug runners and mules. The Texas Department of Public Safety refers to the child recruitment campaign as "scare and awe." The awe comes in the form of the promise of easy money and status while the fear comes in the form of torture and death.

Several states now have medicinal marijuana programs, including New Mexico. It is estimated that California has up to 2000 medical marijuana dispensaries. There is now even a Cannabis University, Oaksterdam University, that teaches people how to grow and dispense weed. Yet New Mexico, and Albuquerque in particular, continues to prosecute possession very aggressively. God forbid, you have over 8 ounces in your possession because you will likely then be charged with distribution.

Lives continue to be ruined on both sides of the border as a result of the war on drugs and the prosecution of marijuana possession. Thousands of lives have been lost, children are exploited and even tortured, immigrants are deported routinely for marijuana possession, people are hauled into court for minor possession, and those with more than 8 ounces can face 2nd degree felony trafficking charges carrying up to 9 years in prison.

No amount of reason has worked thus far to alter the enforcement of the marijuana laws. Perhaps, reason simply lacks the persuasive force of profits. This is particularly so when the insurance industry is involved. Due to the explosive growth of the medical marijuana industry, a new cottage insurance industry catering to the needs of the medical marijuana industry has sprouted up. Insurance is now available for everything from standard worker's compensation to crop theft insurance.

Medical marijuana is becoming big business California leads the country with as many as 2000 medical marijuana dispensaries. Colorado is a distant second with 60. However, the number is growing in the states that have legalized medical marijuana. You can bet the industry is growing when the insurance industry has taken note.

The insurance industry is generally much maligned and for good reason. Maybe, the very greed that is generally so repulsive in the insurance industry will lead to positive social change as the medical marijuana industry takes root. Perhaps, similar profit motives will dictate more enlightened marijuana policies across the board as the insurance industry spots new profit centers. Where the logic of saving lives, saving children from exploitation and torture, saving immigrants from deportation for minor possession, and saving otherwise law abiding citizens from often harsh and inhumane prosecution has fallen on deaf ears, the logic of capitalism will hopefully carry the day. This is a rare occasion when I am pulling for the insurance industry to make more money.

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The International Drug Policy Reform Conference will be held in Albuquerque, New Mexico on November 12-14. The conference was held in Albuquerque in 2001. It returns because the presumably New Mexico is a "beacon of reform" because of its innovative Good Samaritan laws passed to prevent fatal overdose, and its medical marijuana initiatives.

There will be a variety of drug law reform advocates including doctors, lawyers, activists, educators and law enforcement. Much of the discussion will center on the recent tide of support for the legalization and regulation of marijuana.

The War on Drugs has clearly failed. The War on Drugs destroys the lives of otherwise productive, law-abiding citizens. It also enriches and empowers the drug cartels. The War on Drugs has never appreciably affected drug use. Instead, it has placed a huge tax burden on federal, state and local governments. The enforcement, prosecution and punishment of drug use costs the country billions upon billions of dollars per year. This is in fact probably the reason for the new enlightened views on legalization. With governmental budgets devastated by the ongoing recession, necessity has led to enlightenment.

It remains to be seen whether Albuquerque will live up to the honorary title of "beacon of reform." Neither the Albuquerque Police Department nor the District Attorney in Albuquerque have gotten the memo. Instead, marijuana possession continues to be prosecuted quite aggressively.

The potential penalties for possession of marijuana in New Mexico remain severe. Possession of marijuana in any quantity is still considered possession of a controlled substance. Misdemeanor possession of less than 8 ounces carries up to one year in jail. Felony possession of 8 ounces or more carries criminal penalties of up to 18 months in prison. Possession of more the 30 grams carries deportation consequences. A second offense of less than 30 grams carries deportation consequences. Hopefully, someone from City of Albuquerque will attend the International Drug Policy Reform Conference. They should at least be aware of their purported leadership role in this important trend.

Domestic Violence in Albuquerque is taken very seriously. The District Attorneys in Albuquerque, and many others throughout New Mexico have a very strict policy against dismissing domestic violence cases no matter how weak the evidence. In fact, they rarely dismiss a domestic violence case even when it is perfectly clear that there was no act of domestic violence committed.

This position seems unreasonable to most, particularly those caught up in this policy. The policy is extremely frustrating for those wrongfully accused and forced to endure a wrongful prosecution. Often times, even the alleged victim suffers the severe financial and emotional consequences of these policies. In short, a domestic violence proceeding is extremely stressful, and a even just the charge of domestic violence can have significant consequences.

This is true for U.S. citizens. The consequences for non-citizens can be disastrous. A conviction for domestic violence can result in deportation and inadmissibility of non-citizens. There are few options for domestic violence cases. Typically, the most a district attorney will offer is Early Intervention Program. This program ultimately results in a dismissal. However admission to the program requires an admission of responsibility. Some judges require an admission of guilt.

These admissions can trigger the immigration consequences of deportation and inadmissibility. As a result, Early Intervention Program is probably not an option for the non-citizen. An admission of guilt is simply not an option for the non-citizen. Often, the only option for the non-citizen is a trial. And any trial carries risks due to the unpredictable nature of jury trials, or bench trials for that matter.

If you are not a citizen and you are facing domestic violence charges, you need to be very careful about taking any kind of plea. If you have the resources, you should seek the assistance of both a criminal attorney and an immigration attorney so that you can understand and weigh all of your options. Be careful, or you may feel the fleeting joy of what is seemingly a beneficial outcome of your case, as you soon learn that you are now subject to deportation.

If you are charged with a crime and you are not a United States citizen, you could be facing some very serious immigration consequences. If fact, the immigration consequences could be much more serious than the criminal punishment.

On many occasions, a criminal attorney will fail to appropriately consider the immigration consequences of the criminal charges. Many times, the criminal attorney is surprised himself to hear of the severe consequences of seemingly trivial crimes. On still more occasions, the criminal attorney is able to work out would otherwise be a great plea for the client. The plea might even result in the ultimate dismissal of the case, yet the client is still facing deportation for the crime.

The law is fairly complex and common sense does you no good in this area of the law. For instance, in many cases where the chances at trial are not good for the client, an attorney will work out a conditional discharge or a deferred sentence. In each of these situations, the charges are eventually dismissed upon the completion of the terms of probation. Unfortunately, both these deals require that a defendant plead guilty to the charges before the plea will be accepted by the court. The plea of guilty despite the later dismissal is enough to trigger deportation for deportable offenses.

Even more surprising to many defendants, and many attorneys, is the fact that relatively trivial offenses, even petty misdemeanors can trigger deportation. This same result occurs even with residents that have been in the United States for decades, established businesses, purchased homes, raised families and had no other prior legal problems.

It is surprising to learn that a relatively minor charges can result in deportation while far more serious crimes have no immigration consequences at all. The immigration consequences depend on the classification of the crime. The classification of a crime as a crime of moral turpitude carries the most severe and seemingly unfair penalties.

Crimes of moral turpitude can have shocking immigration consequences. Instincts or general impressions of the seriousness of the crime are unreliable. A good and rather common example of a trivial crime classified as a crime of moral turpitude is petty larceny or shoplifting. Even petty shoplifting is a crime of dishonesty which carries the classification of crime of moral turpitude. This means you can be deported for conviction of a shoplifting. Not only that, you can be deported even if you are not technically convicted.

Due to the classification as a crime of moral turpitude, you may have the luxury of many possible common and otherwise favorable pleas. In many cases, a prosecutor would offer a variety of different plea options. Many of these would result in a dismissal of the charges. Unfortunately, a dismissal is not enough. Often the plea itself, in contemplation of an eventual dismissal, requires an admission of guilt to the shoplifting offense. Despite the ultimate dismissal, the admission of guilt alone creates a removable offense. This same outcome occurs in many other otherwise outstanding plea bargains.

There is a long list of crimes of moral turpitude. You must know from the outset if your crime is on that list of deportable offenses. If it is, then the entire defense strategy will change. Unfortunately, you may be forced to go to trial on a case that almost always plea if it involved a United States citizen.

To properly defend you, you must inform your attorney of your immigration status from the first moment you meet. Your citizenship may not be apparent, and the attorney may not think to ask. The defense strategy from the very beginning of your case should properly account for the immigration consequences. Failure to inform your attorney of your immigration status could seriously harm your future in the United States.

So what should you do are not a citizen of the United States and you are charged with a crime? You should inform your attorney of your immigration status the first time you speak. You should remind your attorney of your status throughout the process. Most importantly, you should insist that your attorney thoroughly consider the immigration consequences in the defense strategy and in consideration of any plea offers. If your matter is particularly confusing or complex, then you may need to enlist the services of both a criminal attorney and an immigration attorney.

Don't be in the position where you have won the battle in addressing the criminal charges, while losing the war and everything else you hold dear in this country when you are eventually deported.

Parrish Collins
Collins & Collins, P.C.
Albuquerque, New Mexico
www.collinsattorneys.com