Albuquerque Criminal Lawyer Blog

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.

There is a small but growing trend toward the decriminalization of marijuana. Albuquerque and New Mexico, despite taking a lead on medical marijuana, lag behind the trend toward decriminalization.

Governor Arnold Schwarzenegger has indicated that legalization needs to be studied closely. Massachusetts voters approved a referendum decriminalizing marijuana. Denver has passed a law making adult marijuana possession the lowest law enforcement priority.

Other countries have gone much further. Portugal decriminalized all drug possession. The feared spike in drug use never materialized. Several Latin American countries are following the lead of Portugal including Brazil and Colombia, who have called on other countries in the region to follow suit. Surprisingly, there has been no reaction from the United States government when in years past these trends would have been met with severe diplomatic reactions.

The American people seem to accept marijuana use. Polls have shown that over 50% believe that marijuana should be legalized, taxed and regulated. These folks have it right. This approach would have numerous positive effects. First, it would bring tax dollars all but bankrupt governments at the Federal, State and local levels. Second, it would reduce the power, wealth and influence of organized crime which is a very serious threat to United States national security. Third, it would save State and local governments huge budgetary waste expended on enforcement, prosecution and punishment of this completely harmless crime. Finally, it would stop ruining the lives of those caught up in these senseless policies.

Despite these trends, and New Mexico's forward looking vision on medical marijuana, the State and Albuquerque in particular continue to take a hard stand on marijuana possession. Marijuana is still considered a controlled substance. Possession of marijuana is classified as possession of a controlled substance. Possession of less than 8 ounces is a misdemeanor, possession of more than 8 ounces is a felony. Even a charge for possession of a controlled substance can have devastating consequences to a defendant. A conviction can have many serious consequences beyond even the penal consequences.

New Mexico, and Albuquerque should take the lead here as they have in other areas such as immigration and medical marijuana. The current enforcement policies are barbaric to the those unfortunate enough to be caught in the system, and neglectful of responsibilities to our taxpayers.

Marijuana use in New Mexico and throughout the United States seems be generally accepted. Stories have appeared this month alone on the Today Show, Marie Claire magazine, Variety, and even Forbes depicting marijuana use in relatively favorable light. Forbes described the medical marijuana trend as a step toward the end of prohibition.

Many of our top political figures including Bill Clinton, Barak Obama, Mayor Michael Bloomberg, Arnold Schwarzenegger and even George W. Bush have admitted to smoking marijuana in the past. Yet more than 750,000 people are arrested every year on charges of marijuana possession. New York, where the mayor has admitted past marijuana use, leads the way with 40,000+ arrests each year.

The fact that law enforcement and prosecutors continue to bring these cases at great costs to taxpayers, and often catastrophic costs to the defendant, is disappointing to put it mildly. More disturbing, however, is the racial component of the arrests. Though Anglos smoke pot at higher rates than blacks or Latinos, and make up the majority of the United States population, the great majority of those arrested for marijuana are black or Latino. In New York, called the marijuana arrest capitol of the world, blacks and Latinos are 87% of those charged.

Possession of less than 8 ounces of marijuana in New Mexico is a misdemeanor. Possession of over 8 ounces is a 4th degree felony. Most possession charges fall in the misdemeanor category. Though misdemeanor possession my seem to some like a trivial criminal matter, marijuana is stilled considered a controlled substance. Possession of a Controlled Substance in New Mexico carries very serious consequences well beyond the penal consequences.

The trend toward medical marijuana and what Forbes describes as the end of prohibition cannot move fast enough for those unfortunate enough to be arrested for what is pretty well accepted by all a harmless act.

There is a stir in Santa Fe over the fact that two drivers involved in high profile DWI/DUI fatal accidents have kept their driver's licenses. Carlos Fiero, a prominent lawyer and lobbyist in Santa Fe, is accused of vehicular homicide in the DWI/DUI related death of a Santa Fe man outside a popular Santa Fe bar. Scott Owens is accused of driving the wrong way on a Santa Fe road killing several teenagers in a head-one collision.

Both men still have their driver's licenses despite the mandatory MVD license revocation under New Mexico's Implied Consent Act. MVD and the sheriff's office both deny responsibility. The Sheriff has indicated that the normal Notice of Revocation was not issued along with a DWI/DUI charge because the DWI/DUI charge might have somehow allowed the defendant's to walk in and plea guilty to the DWI/DUI charges while escaping the vehicular homicide charges.

Typically, a Notice of Revocation is issued upon arrest of an individual for DWI/DUI following a breath alcohol score or .08 or greater, or a refusal to take breath alcohol test. The revocation is mandatory no matter what happens on the DWI/DUI charges. Even if the driver wins at trial, the breath score of .08 or a refusal results in the mandatory revocation of the license. Vehicular homicide almost by definition carries with it a charge of DWI/DUI.

As such, the arguments from both MVD and the Sheriff make little sense. In fact, this was probably an administrative error. The sheriff either failed to issue the Notice of Revocation, the notice of hearing did not go out, the hearing was not set within 90 days of the arrest, or the hearing simply was not set at all. MVD hearings are a mere formality for the revocation of a license. The only way one keeps a driver's license under the Implied Consent Act in Mr. Owens' or Mr. Fiero's situation is by administrative error, which is what appears to have occurred here.

The Supreme Court of California announced that the Supreme Court of California, the Courts of Appeal and the Superior Courts would be closing on the third Wednesday of each month. The court closures are the result of California's ongoing budget crisis.

It is estimated that this move will save the state $94.3 million for the State. The amount of projected cost savings suggests the huge costs of running a Court system on a daily basis. The closures will amount to only 12 days of closure per year, putting the daily costs at $7.86 million. These cutbacks will cause ever greater strain on an already burdened court system.

Though the Court system in New Mexico is a small fraction of the size of California's, the costs of the court system is enormous. In addition, the state's budget is only a small fraction of the size of California's. So in relative terms, New Mexico may be facing an even greater burden.

The New Mexico Courts have already begun throughout the state to cut back on the hours for administrative services such as the clerk's offices. The courtrooms have yet to be impacted but it seems that they will at some point.

Yet while the Courts are facing ever more challenging budgets, the practices in the criminal justice system have yet to respond to the looming crisis. Police and prosecutors continue to prosecute DWI/DUI cases that are below the legal limit. Police and prosecutors are regularly bringing cases at .04 to .06 breath alcohol scores, sometimes even below .04. There is a similar policy among some prosecutor's offices of relentlessly pursuing domestic violence actions even when there is a total lack of foundation or merit. These practices, in addition to being manifestly unjust, place a huge burden on the Courts and the taxpayers of New Mexico.

Perhaps the upside of the economic downturn will be that the police and prosecutors will be forced to more honestly and fairly evaluate the merits of their cases before burdening the Courts with frivolous criminal proceedings. Perhaps, police will be less enthusiastic about pursuing these cases when overtime pay is capped and there is no financial incentive to pursue these cases. Perhaps prosecutors will be less inclined to pursue these cases as their own budgets begin to shrink. Perhaps the Courts themselves will hold the prosecutors and police more accountable to the taxpayers and be quicker to dismiss meritless actions. We can hope.

Collins & Collins, P.C.
www.collinsattorneys.com

In New Mexico, a person has a right to defend himself and his home against harm. The long cherished rights of self-defense are clearly established in New Mexico under the State's Uniform Jury Instructions.

New Mexico General Jury Instruction on Self-Defense UJI 14-5190 states that "A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself." New Mexico UJI 14-5180, related to defense of one's property, states that a person may use force that he deems reasonable and necessary to defend his or her property. Of course, the issue will be whether a jury believes the force was reasonable and necessary.

The issue of self-defense will certainly be an issue in the case reported yesterday about the Johns Hopkins University Student who killed an apparent burglar with a samurai sword. The burglar had broken into the student's apartment where he lived with several other students. Upon being confronted by the students, the burglar lunged at the students whereupon he was struck down by the samurai sword.

There is no jury instruction in New Mexico dealing with the flair or style in which one defends his or herself. It seems that this cannot be counted for or against you. So the use of a samurai sword should be deemed irrelevant without more. The Uniform Jury Instructions would seem to indicate that the student not be charged. Unfortunately, there is more to it than that and it is possible that the student will be charged with something, and something quite serious such as homicide or intentional manslaughter, and it will be left to him to assert his defenses. In New Mexico, the outcome would likely be much the same. Fortunately, the student will be armed with the long standing and rather sacred right to defend oneself and one's home from harm.

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

In the past, the federal government did not recognize medical marijuana laws in the 13 states that now have such laws. The result was that the federal government would prosecute aggressively those folks engaged in medical marijuana distribution despite the fact that their state allowed it. Attorney General, Eric Holder, quietly has announced that the federal government would no longer engage in these practices.

Instead, the federal government will now respect the laws of the states and will not preempt local law with federal drug policy. New Mexico and 13 other states have breathed a sigh of relief as their citizens can now rely on the law in their state.

New Mexico now has the first state-licensed medical marijuana farm and distributor. The law has been up and running for 2 years allowing medical marijuana in New Mexico. However, the state has moved cautiously awaiting the announcement of the new production and distribution program.

Despite its youth, the program has been hugely successful. The farm cannot keep up with demand. The farm is generating substantial revenue for the state helping to relieve the enormous budgetary strains that the state now faces. Yet the beat goes on with police and prosecutors continuing to prosecute simple possession of marijuana cases and possession of paraphernalia cases. Lives continue to be ruined through the criminal justice system as the State carves out a cottage industry in the production and sale of marijuana.