Albuquerque Criminal Lawyer Blog

In most situations in New Mexico, a criminal suspect being held for an interrogation must be read his or her Miranda rights. For Miranda rights to kick in, the suspect must be subject to a custodial interrogation. One hallmark of the custodial interrogation is that the subject does not feel free to leave. This takes on unique meaning in a juvenile criminal case involving the questioning of a student.

Investigatory Detention by School Personnel Not a Custodial Interrogation

In a recent case, State v. Antonio T., the New Mexico Court of Appeals examined the rights of a student when being questioned by a school official in the presence of a police officer. The court was tasked with determining whether this situation arose to the level of a custodial interrogation or whether it was instead simply an investigatory detention.

The court found that it was simply an investigatory investigation despite the many attributes that would suggest that this was a custodial interrogation including the fact the student probably by no means felt free to leave. Moreover, because it was conducted by the Vice Principal in a school setting, the questioning was not considered an investigatory detention by police.

This is an important distinction since juveniles in New Mexico are protected against such investigatory police detentions due to the fact that they are less likely to know their rights or to exert them even if they do know them because of their youth. Because it was only an investigatory detention by a school official, the court of appeals agreed that the student was not entitled to a reading of his rights under Miranda.

Police Presence Not Enough to Trigger Miranda

In this case, the student was taken into the vice principal's office to be questioned about being intoxicated on school grounds. Soon after the student entered the vice principal's office, a police officer acting as the school's resource officer arrived in the office as well.

The police officer was dressed in his full uniform and was called in to administer a portable breath test. While the police officer prepared the portable breath test, the vice principal questioned the defendant. The student admitted to the Vice Principal that he had two shots of peppermint schnapps and the portable breath test showed that the student had a blood alcohol concentration of .11 percent.

At trial, the student sought to suppress his admission about consuming the alcohol. He alleged that the prosecution did not show that he made a knowing, intelligent and voluntary waiver of his right to remain silent due to the failure to read him his rights under Miranda. The trial court disagreed as would the Court of Appeals.

In this case, though the student was questioned by the school official in the presence of a police officer, it was found that it was not a custodial interrogation. The court reasoned that the police officer only listened while the student was questioned. The officer did not pariticpate in the questioning nor control the area wehre the questioning took place.

Greater Rights for Juveniles Not at Issue Investigation by School Personnel

New Mexico does have a statute providing juveniles with greater protections in an investigatory interrogation. In fact, New Mexico is the only state that requires a reading of Miranda rights during an investigatory interrogation of a juvenile.

However, the New Mexico statute limits when a juvenile must be read their Miranda rights in an investigatory interrogation to situations where the investigation is undertaken by, or on behalf of, law enforcement officials. Here, the investigation was not undertaken on behalf of law enforcement. Thought the police officer was aware of the investigation, he did not provide any direct assistance or even ask any questions.

Perhaps most important for the ruling are the student safety issues facing schools. In this case, it was determined that the vice principal conducted the questioning in order to ensure the safety of the child and the other students in the school. As a vice principal, she has a legitimate interest, separate from the law enforcement aspect of the incident, to inquire into whether the student was intoxicated and whether the alcohol remained on the premises possibly endangering the defendant or other students.

The student safety considerations seem to dictate the court's decision. A traditional analysis of whether a custodial interrogation took place would likely result in a different outcome. After all, would a student in this situation really feel free to simply leave despite the fact that the officer was simply present but not conducting the questioning?

Related Reading:
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?
Consent by a Minor to Warrantless Search in New Mexico
What Does "You have the right to remain silent" Under Miranda Actually Mean?

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Delinquency Act creates three different types of juvenile offenders. The juvenile criminal offender's classification is very important, because it determines whether they may be tried as an adult. This in turn will determine the possible penalties they can receive.

A "serious youthful offender" is a child from 15 to 18 years old that is charged with first-degree murder. Once charged with first degree murder, they are no longer a juvenile under the law and are automatically sentenced as adults if they are convicted.

A "youthful offender" is a child aged 14 to 18 and found guilty of specified felony offenses (like second degree murder, assault with intent to commit violent felony, kidnapping, aggravated battery, criminal sexual penetration and robbery); who has three prior, separate felony convictions in the past three; or is 14 and found guilty of first degree murder. A youthful offender may receive either a juvenile or adult sanction.

Finally, a "delinquent offender" is a child that commits a less serious crime. The child is tried in Children's Court under the Children's Court Rules. A delinquent offender will receive juvenile sanctions under the Children's Code.

A recent case before the New Mexico Court of Appeals, New Mexico v. Nanco, examined whether a child charged with murder but only found guilty of a lesser crime should receive credit for the time they serve before sentencing.

The defendant was a fifteen-year-old who was arrested because police believed he was involved in a fatal shooting. He was charged with one count of first-degree murder and two counts of tampering with evidence related to the shooting. Due to his age and charges, the defendant was classified as a serious youthful offender and tried as an adult. After a trial, he was found not guilty of first-degree murder and one of the evidence tampering charges. However, the jury found him guilty of voluntary manslaughter and tampering with evidence.

The defendant's charges meant that his classification would be changed to a delinquent offender. Under New Mexico law, a serious youthful offender would be entitled to a credit for the time served prior to sentencing, but a youthful offender or a delinquent offender would not. In New Mexico, juveniles do not receive credit for time served. The defendant argued that he should receive credit for the time served, because he was initially categorized as a serious youthful offender. The court disagreed.

The New Mexico statute allowing pre-sentence credit specifically states that the credit applies against a sentence. However, a delinquent offender, like the defendant, is not "convicted" or "sentenced." Under New Mexico law, the defendant was "adjudicated" and received a "disposition." Since the defendant was a juvenile and was not sentenced, the pre-sentence credit law cannot apply to him.

In addition, New Mexico seeks to rehabilitate juveniles in the criminal justice system. In order to do so, juveniles are treated differently from adults. One important difference is the way consequences are determined, with the possibility that a sentence can be cut short or extended based upon the needs of the child and the public. By allowing pre-sentence credit, the juvenile's rehabilitation could be cut short at a critical time, harming both the child and the public at large.

The juvenile criminal process is somewhat different than the adult criminal process. Because of the differences, it is typically beneficial have an attorney experienced in the juvenile criminal courts. If your child is involved in the juvenile criminal courts in the Albuquerque area, feel free to contact us at Collins & Collins, P.C.

Related Reading:
Timely Preliminary Hearings for Juveniles Facing Adult Charges in New Mexico
Youthful Offender, No-Bills and Time Limits in Juvenile Criminal Cases
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment to the U.S. Constitution and Article II Section 10 of the New Mexico State Constitution prohibit unreasonable searches by government official and require that a judge issue a search warrant authorizing the specific location and/or object to be searched. A warrantless search, therefore, is presumed to be unreasonable unless one of the recognized exceptions to the warrant requirement is established. One such recognized exception is consent.

In order to establish consent, the prosecution must prove that "under the totality of the circumstances" the consent given to search the location was voluntary and not "a product of duress, coercion or other vitiating factors." Whether someone has consented to a search is an issue that must be determined on a case by case basis and is highly dependent on the specific facts of each case.

When reviewing the totality of the circumstances the court must consider 1) the individual characteristics of the person giving consent, 2) the circumstances under which the person was detained, and 3) the manner in which the police requested the search. The ultimate determination is whether the person consented against their will.

New Mexico courts have already determined that the Fourth Amendment does not require police officers to advise a person of his or her right to refuse to consent to a search in order to obtain a valid consent when consent is sought to search a person's home. In State of New Mexico v. Carlos A., the New Mexico Court of Appeals extended this principle to a police officer requesting consent to search a vehicle. The court stated that such an extension was reasonable since a vehicle does not carry the same heightened expectation of privacy as one's home does. Whether a person is aware of the fact that they may refuse to give consent to the requested search is just one factor to be considered in determining the voluntariness of the consent.

The Carlos A. case is of particular significance because it deals with a minor's consent to search his vehicle. Carlos argued that as a minor he should be entitled to broader protection than an adult when asked to consent to a search. The Court rejected the defense counsel's arguments and concluded that the officer was not required to advise Carlos of his right to refuse consent to the search simply because he was a minor.

Ultimately, the Court determined that Carlos' consent was voluntary. Specifically, in reviewing the totality of the circumstances the court noted that the contact between the officer and Carlos occurred quickly and in a public place, the contact was not hostile, and the officer did not exert any undue pressure on Carlos to convince him to consent to the search. Furthermore, Carlos was 17 years old. Only one year away from being an adult. In light of these facts there is no evidence that Carlos consented to the search of his vehicle against his will.

In remains to be seen how the court would rule on these same issues in the case of younger children. However, the same arguments would certainly be a stretch in cases of less mature children. If your child is facing juvenile criminal charges and there is a question as to the legality of a search, it is advisable to immediately consult with an experienced criminal defense attorney.

Related Reading:
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?
Second Chance for First Time Juvenile Criminal Offenders

Collins & Collins, P.C.
Albuquerque Attorneys

The 4th Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. The New Mexico Children's Code further protects juveniles and sometimes expands their constitutional rights.

In a recent opinion involving juvenile criminal charges, however, the New Mexico Court of Appeals held that in relation to 4th Amendment searches and seizures, under the Children's Code minors have no greater rights than adults. Specifically, an officer is not required to advise a minor of his right to refuse consent to a search of his vehicle.

The underlying case in State v. Carlos A. involved a routine traffic stop for a non-functioning license plate light. The Defendant driver was seventeen years old at the time. When the officer pulled the Defendant over, he noticed a strong odor of marijuana and asked Defendant if he would consent to a search of his person.

The driver consented. Upon finding nothing suspicious from the search, the officer called for backup and when backup arrived asked Defendant whether he would consent to a search of his car. Defendant agreed to the search whereupon marijuana and other paraphernalia were found. The defendant was then placed under arrest and charges were brought against him. The time between the stop and the end of the automobile search was no more than ten minutes and the entire exchange was non-threatening and cordial at all times.

At trial, the Defendant filed a motion to suppress the evidence from the search of his car. The Defendant argued that his consent was involuntary because officers were required to inform him of his right to deny consent to the search due to his status as a minor under the New Mexico Children's Code. The district court and the New Mexico Court of Appeals both disagreed.

Under the 4th Amendment, any unreasonable search or seizure by government agents requires a search warrant unless there is a recognized exception. Consent is one of the exceptions to the warrant requirement. To demonstrate consent, the prosecution must show that under the totality of the circumstances, the consent was voluntary and not the product of intimidation or coercion.

To assess the totality of the circumstances, a court must evaluate all of the factors involved, including the particular situation of the person giving consent, the circumstances of the detention, and the behavior of the government agents requesting consent. One of the factors considered is whether the defendant was advised of his or her right to refuse consent. However, being advised of the right to refuse consent is only one factor to consider and not dispositive of the question of whether consent was voluntary under the totality of the circumstances analysis.

Having established that the 4th Amendment does not require a police officer to advise an adult of their right to refuse consent to a search, the Court of Appeals went on to analyze whether the New Mexico Children's Code required it when the person giving consent was a juvenile.

Under Section 32A-2-14(C) of the Children's Code any juvenile interrogated by police must first be advised of his or her rights. This provision basically mirrors the 5th Amendment right to remain silent and a warning that anything said will be used against them. However, the Court in this case refused to expand this protection to 4th Amendment searches and seizures making the distinction between a consensual search and a custodial interrogation.
Therefore, as the law in New Mexico stands, a juvenile's 4th Amendment rights are not violated if he or she is not advised of the right to refuse consent to a search if the consent was otherwise voluntary. While the fact that the juvenile was not made aware of their right to refuse consent will be a factor in determining whether the consent was voluntary, it is not dispositive. If, as in this case, the detention was brief, in public, and the officers showed no signs of intimidation, it is likely that consent will be deemed voluntary even if the juvenile was not advised of his right to refuse.

Each case is unique and requires individual analysis. Moreover, the case does nothing that would allow a nonconsensual search. In any case where the search was non-consensual or perhaps unknowing, it is important to raise these issues with your child's criminal defense attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal.

The time limits come up in a variety of ways from the speedy trial rule to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the New Mexico Court of Appeals ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence.

The underlying case in State v. Leticia T. involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence.

Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence.

In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms."

According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice.

In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code.

To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.

The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the New Mexico Supreme Court can write or rewrite rules of court procedure.

The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner.

The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by criminal defense attorneys. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal.

The time limits come up in a variety of ways from the speedy trial rule to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the New Mexico Court of Appeals ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence.

The underlying case in State v. Leticia T. involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence.

Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence.

In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms."

According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice.

In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code.

To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.

The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the New Mexico Supreme Court can write or rewrite rules of court procedure.

The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner.

The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by criminal defense attorneys. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.

Collins & Collins, P.C.
Albuquerque Attorneys

The juvenile criminal process in New Mexico differs in several ways from the adult process. In some ways juveniles are granted more favorable rights than adults, including such procedural an due process protections as the guarantee of a speedy trial. In State v. Castro, the New Mexico Court of Appeals recently discussed the effect of a no bill on dismissal and on speedy trial time limits.

A no bill is a determination by a grand jury that there is not sufficient evidence to return an indictment against an individual. In some courts around the state, a preliminary hearing is used instead of the grand jury process. The juvenile process typically more closely follows the preliminary hearing process in adult felony proceedings. However, in very serious felony cases, the juvenile may be charged as a youthful offender which in some counties will result in a grand jury. Other smaller counties will generally stick with the preliminary hearing process.

In New Mexico juvenile court, a delinquency petition sets forth the charges against the child in much the same way that a criminal complaint operates in adult court. Once the criminal process begins against a child in custody, the Children's Court Rules sets a 30-day time limit within which an adjudicatory hearing must begin. An adjudicatory hearing is one where a judge decides whether there is probably cause to believe the charges against the child have some factual basis, like a preliminary hearing in adult court.

Under the Children's Court Rules, the time for the adjudicatory hearing may be extended by no more than 60 days. If the time limits are not complied with, the court may dismiss the case with prejudice. When a case is dismissed with prejudice, the defendant cannot be recharged.

In State v. Castro, the State filed a delinquency petition against the defendant child chargin him as a youthful offender. The defendant child was served while in custody, triggering the 30-day time limit to commence an adjudicatory hearing. The State presented the grand jury with a list of all the delinquent acts contained in the delinquency petition. The grand jury, however, returned a no bill, meaning that it did not find probable cause to charge the Defendant.

The court did not hold an adjudicatory hearing within the 30-day limit, but instead held a hearing to entertain a motion from the State requesting an extension and a motion from the Defendant to deny the extension. At the hearing, the court dismissed the delinquency petition with prejudice for failure to comply with the 30-day time limit.

On appeal, the New Mexico Court of Appeals found that the return of a no-bill from the grand jury operated as a dismissal of all the charges against the defendant without prejudice, meaning that the State is free to re-charge the defendant with the same crimes. Since the return of the no-bill operated as a dismissal, the Court continued, there were no pending charges against the Defendant at the time of the motion hearing. Therefore, the 30-day time limit was not applicable, and the lower court lacked the authority to dismiss the case with prejudice.

What the holding in this case comes down to is that when a grand jury returns a no bill, even though the case is dismissed and the charges are no longer pending against the Defendant, the State is free to re-file charges against the Defendant for the same offense once it has gathered more evidence.

The time limits were put in place so that once the State begins the criminal process against an individual, the accused is guaranteed a speedy trial. This ensures that the State will gather necessary evidence before it files charges and that citizens will not be unnecessarily harassed. However, it seems that this ruling effectively stops the clock in favor of the State, allowing it to charge an individual again if it did not achieve its goals the first time around.

As one might gather from reading the above, this is a complex process and one would be wise to seek the counsel of a criminal defense attorney from the outset. If you cannot afford a private attorney, there many very capable public offenders that are there to assist you.

Collins & Collins, P.C.
Albuquerque Attorneys

Juvenile criminal offenders may be charged as adults for the commission of very serious criminal offenses. In order to charge the child as an adult, and thereby expose the child to adult criminal sentencing, the Court must conduct an amenability hearing.

The amenability hearing is held to determine whether or not the juvenile is amenable to treatment and rehabilitation through the juvenile justice system. If the court finds the juvenile is not amenable to treatment and rehabilitation, then the child is tried as an adult. The consequences for the child are enormous as the child is taken outside the sentencing scheme of the juvenile justice code which limits possible incarceration up to the child's 21st birthday.

The New Mexico Supreme Court in State v. Rudy B took up the issue of whether amenability findings should be determined by a jury. In New Mexico, these findings have always been done by the judge. The attorneys for Rudy B challenged the judge based amenability under the 2000 Unites States Supreme Court case of Apprendi v. New Jersey.

Apprendi held that any fact that would result in a penalty beyond the statutory maximum must be heard and determined by a jury. Certainly, an amenability hearing involves facts and evidence that would lead to penalties beyond the maximum sentencing under the juvenile code. In very serious cases, such as the violent offenses involved in Rudy B, the defendant is looking at some very lengthy incarceration well beyond the typical jurisdiction of the juvenile courts.

The Rudy B opinion was pretty lengthy going into the history of amenability adjudications in New Mexico, Apprendi and Oregon v. Ice. The 2009 U.S. Supreme Court in Oregon v. Ice allowed an exception to Apprendi in a case involving concurrent sentencing. However, Oregon v. Ice seemed to be fact specific in that the concurrent sentencing was for completely separate and independent criminal acts.

The New Mexico Supreme Court then framed the discussion of Oregon v. Ice as the refusal of the Court to extend the role of the jury into concurrent v. consecutive sentencing settings where the jury had traditionally played no role. This was an interesting stretch of logic in to say the least.

The Court in Rudy B, based upon its reading of Oregon v. Ice, then took us through the history of amenability hearings in New Mexico. In the end, after a nostalgic trip through history, the Court said judge based amenability was not a violation of Apprendi because it had always been done this way in New Mexico.

It is interesting and disappointing that the Court would resort to the same logic that has reinforced all manners of legal and social injustice in the past: "It's just the way it is. It has always been this way."

Collins & Collins, P.C.
Albuquerque Attorneys

The great majority of juvenile criminal cases, whether misdemeanor or felony, do not go to trial but end with a plea bargain.

As part of the plea bargain the delinquent child is usually put on probation. As soon as the plea agreement is signed the judge orders the delinquent child to meet with an intake probation officer, and then they are assigned a permanent probation officer.

Terms of probation range from six months to 2 years though the court can exercise jurisdiction and extend probation until the delinquent turns 21. In fact, every offense under the juvenile code carries up to two years in detention. Actual incarceration is the exception for all but the most serious and/or serial repeat offenders and those children that simply will not comply with the terms of probation.

It is the job of the probation officer to monitor the child to make sure they are in compliance with their probation agreement. Some of the conditions in the probation agreement include but are not limited to obeying all state and federal laws, going to school, not possessing weapons, not associating with certain individuals, restrictions on driving privileges and getting a job. In addition, there are two more that trip kids up the most: violations of curfew and violation of the prohibition on the use of drugs or alcohol (particularly marijuana).

Probation Officers set up appointments for the child to come to their office so they can meet. During that meeting the Juvenile Probation Officer will often ask the child to take a urine analysis to test for drugs and alcohol. If the child tests positive for drugs or alcohol the probation officer can ask the children's court attorney to revoke the delinquent's probation and spend the rest of their sentence in jail. More common for a first dirty urine test, the probation officer will call for more frequent meetings with probation along with random urine testing.

Assuming all else fails in the supervision of the child, the probation officer may recommend the revocation of probation. In order to revoke the child's probation, the children's court attorney must file a probation violation which will be followed by a hearing where the probation officer states the violation and makes a recommendation to the Judge. The Judge may revoke probation or some other type of sanction to get the child's attention to comply with the probation agreement.

If at the tail end of a probationary period the child is not complying and the child is over the age of eighteen, the probation officer may suggest a 15 day and cut. A fifteen day and cut means that the child will spend 15 days in jail and is cut from probation with an unsatisfactory discharge.

Finally, and perhaps most importantly for those children that are serious about turning things around, the probation officer does have discretion to request that the court release the child from probation early. As such, if a child is doing well on probation, the probation officer may ask the Judge to reduce the amount of time the child is on probation. This should serve as a great incentive for compliance if possible detention is not enough.

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

As part of the rehabilitative approach of the juvenile criminal justice system, judges, defense counsel, prosecutors, and juvenile probation take a progressive approach in dealing with juvenile delinquents. For example, each county will typically have its own drug court program which is an alternative to prosecuting a child with substance abuse issues.

Drug Court takes a progressive approach to juvenile substance abuse issues. Therapists, probation officers, and drug court staff help both the child and the child's family to address the substance abuse issue. The child and the parents participate in family counseling. The child will attend alcohol and substance abuse counseling. The child will also undergo random urine analysis. In addition, the child will participate in outdoor team based confidence building activities to help the child stay clean.

Drug Court is an option for juveniles who have a criminal history that includes drug or alcohol related offenses. Upon entry, the juvenile must have a clean urine analysis to establish base levels for future drug testing. Once admitted, there are four stages of Drug Court that the juvenile must complete. Stage one will not commence until the child has a clean urine test. Each stage must be completed prior to moving to the next stage.

Drug Court can be completed in six months if the juvenile takes it seriously and complies with all of the demands placed on him or her. However, if a juvenile commits a violation while in drug court, the Drug Court team will vote on the type of sanction that should be imposed on the juvenile.

Common violations include but are not limited to a missed or positive (dirty) urine test, curfew violations, new criminal charges and truancy. The sanctions vary from not being able to move to the next stage to house arrest. For repeated violations, the juvenile may be kicked out of the Drug Court program. Termination from Drug Court is considered a serious probation violation frequently resulting in immediate detention (lock-up).

In short, Drug Court is a rather progressive approach to juvenile drug offenses. However, it is a double-edged sword. Drug Court is very demanding of its participants. Many kids simply cannot meet the burdens of the program. Unfortunately for those kids, there are few remaining options other than detention.

Those kids that are sentenced to and successfully complete Drug Court often turn their lives around. For those, both the child and the parents are typically very grateful for the assistance Drug Court provides in dealing with a very serious problem before it has gotten out of hand.

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

The juvenile criminal justice system's philosophy is treatment based rather than detention or punishment based. In Albuquerque and Rio Rancho in particular, the juvenile justice system tends to be more liberal toward first time non-violent criminal offenders.

In fact, minor first time offenses such as minor misdemeanor cases are often resolved informally with the juvenile probation office through informal probation. In these cases, the file is not even forwarded to the prosecutor. If the case is sent to the prosecutor, there is still a chance on first time non-violent offenses to resolve the case early in the process.

In the interest of rehabilitation, the District attorney or prosecutor will often give the child a break on a first time non-violent offense. This break typically comes in the form of a Time Waiver. The Time Waiver is a document which is unique to the juvenile justice system. Under the United States Constitution, all those charged with a crime including children are entitled to a speedy trial. The Time Waiver is a document that waives an individual's right to a speedy trial. It basically tolls the case for a period of 6 months. So long as the child stays out of trouble and complies with all conditions of the Time Waiver during the 6 month period, the District Attorney will dismiss the case.

By entering a Time Waiver, the State is allowed to sit on the case for 6 months without the threat of dismissal on speedy trial grounds. Essentially, the Time Waiver allows the District Attorney to maintain some level of supervision over the child without a conviction or formal probation. Outside of an outright dismissal of the charges, which is very rare, a Time Waiver is the most favorable resolution that a child may expect.

There is of course no guarantee that a child will get a Time Waiver. There are a number of factors the district attorney will consider in the offer of a Time Waiver. The most immediate is of course the seriousness of the charges. Other factors include the child's prior contacts with law enforcement, criminal background, gang affiliation, school attendance and grades.

Perhaps the most important factor is the parental support and supervision of the child. Prior to criminal charges, the juvenile probation officer will meet with the child and the parents during a preliminary inquiry to find out how the child is doing in school and at home. The juvenile probation officer will seek to determine whether or not there is a good home environment with strong parental support. If the parents are supportive, the child is doing well in school and the charges are for a first time non-violent offense, then there is ,at least in Albuquerque and Rio Rancho (other jurisdictions will vary), the possibility of Time Waiver.

The Time Waiver is a very favorable outcome. It is hoped by all in the juvenile justice system that the Time Waiver is sufficient to get the child back on track. If it does not, then the next go around is likely to be significantly more unpleasant for the child.

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

Legal situations like domestic violence or DWI can have far-reaching consequences. Aside from the attorneys fees, court costs, fines and possible jail time, a potential military recruit may be denied enlistment in the armed forces if they are currently dealing with or have been involved in certain legal situations.

The military is not meant to be rehabilitative in nature. Gone are the days when the military was a possible escape from criminal prosecution. Prior to entry into the military, an initial screening process is conducted in an attempt to minimize the likelihood of receiving recruits who are disciplinary problems or who may become security risks. What's more, there are some legal situations, including domestic violence, which may exclude a potential recruit from the ownership and use of firearms. Consequently, the recruit would not be able to perform job functions requiring the use of weaponry.

Military recruiting offices may run background checks on potential recruits, including police and court checks. It is best to disclose any legal situation, past or present, up front. Failure to fully disclose may itself be grounds for denial.

During the interview process, the recruiter will ask about arrests, current or dismissed charges or convictions, as well as probation, incarceration or parole periods. In addition, they will ask about juvenile criminal histories, including proceedings that were either sealed or expunged. They will even ask about traffic violations.

In some cases, a waiting period may be required before a recruit can enlist. In other situations, a waiver can be requested that might permit enlistment despite the potential disqualification. Each applicant is considered on a case by case basis.

Each branch of the armed forces may have slightly different regulations; however, some of the regulations that the U.S. Army follows involve:

• considering an unpaid paid parking ticket a disqualification as a pending charge;

• considering multiple charges for the same event individually;

• requiring a waiver in several situations regardless of how the case was decided, including domestic violence situations and serious criminal misconduct, even when the case was decided in the potential recruit's favor;

• discharging anyone who conceals a legal situation that requires a waiver, considering this "fraudulent enlistment".

In situations where a waiver may be permitted, it is up to the applicant to provide proof that they have overcome the disqualification and that being accepted would be in the best interest of the military. Court documents, evidence of rehabilitation and even letters of recommendation may be required.

There are certain legal disqualifications that cannot be overcome by a waiver. Some of these include intoxication at the time of application, ongoing alcoholism or drug abuse and a history of psychotic disorders. However, recruiters are more than willing to sit down with an applicant and review any potential legal disqualifications. Again, each applicant is considered on a case by case basis.

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

Texting has grown very popular over the last few years. Anyone who has provided a mobile phone to their child has learned one way or another the annoying popularity of the practice among teens. Most of the time, the constant texting is simply an annoyance asdinners are interrupted, cars are wrecked, and conversations are stopped dead as a result of the uncontrollable urge to text and be texted.

Unfortunately, texting can have far worse consequences than your reprimands. Texting often leads to sexting (the transmission or receipt of nude or semi-nude pictures or video from mobile phones) which has become almost epidemic among teens. A report from the National Campaign to Prevent Teen & Unplanned Pregnancy estimates that 22% of teen girls, 18% of teen boys, 11% of young female teens aged 13 to 16, and 20% of teens overall have engaged in the practice. A poll from the Associated Press and MTV suggests even higher numbers.

For the most part, sexting by and among teens seems relatively harmless. Although, no STD's have yet been identified with the practice, the harms may be much greater and like some last a lifetime. Unfortunately, the laws have not kept up with technology. As a result, sexting will be forced into the old legal definitions. The result is that sexting is often charged under child pornography laws.

Transmission, receipt, or possession of child pornography carries extremely serious consequences. Under federal law, for instance, there is a statutory minimum of 5 years for the receipt of child pornography. Transmission and creation carry even more severe penalties. State laws are equally severe. In addition, each transmission or receipt may be charged separately. For juveniles, the sentencing is typically much less severe. However, one aspect of a conviction for child pornography that is as bad for juveniles as it is for adults is sex offender registration. So even if a teen escapes any incarceration at all, registration as a sex offender could more or less destroy their lives.

This may seem like overkill for sexting by teens but it is the reality. Talk to your kids. A short lapse in judgment can have a lifetime of consequences. This goes for sender, the receiver and anyone that retransmits the images. The worries for parents never end as teens now have a whole host of new tools at their hands to get themselves in trouble. Unfortunately, most parents and their teens are completely oblivious to the dangers of their new toys.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com