Albuquerque Criminal Lawyer Blog

Two recent cases from New Mexico's Supreme Court apply the recent United States Supreme Court decision of Melendez-Diaz v. Massachusetts to DWI/DUI blood draws, and chemical testing in controlled substance cases.

The first case of State v. Bullcoming involved a felony aggravated DWI/DUI conviction. The State introduced a blood alcohol test (blood draw) that was taken from the defendant under a search warrant issued following his refusal of the breath alcohol test. The court made some interesting and somewhat contradictory findings regarding the admissibility of the report and the defendant's 6th Amendment right of confrontation of witnesses.

First, in light of the Melendez-Diaz decision, the Court reversed its prior position in State v. Dedman that had ruled that forensic tests were public records and therefore not subject to 6th Amendment confrontation protections set forth in the United States Supreme Court case of Crawford v. Washington. Dedman found that these reports were non-testimonial in nature since they were public records. Under Crawford, only testimonial evidence prepared in anticipation of trial is subject to 6th Amendment protection.

Melendez-Diaz ruled that these reports are "quite plainly affidavits" and that "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause and Crawford. To bring New Mexico law in line with the United States Supreme Court, the Court in Bullcoming ruled that these reports are testimonial, they do not fall within the business records exception to the hearsay rule, and therefore they are subject to cross examination.

Then remarkably, the Court found that the analyst preparing the report was a "mere scrivener" simply transcribing the results from the gas chromatograph. As such, the analyst/scrivener was unnecessary in court to meet the demands of Melendez-Diaz, Crawford and the 6th Amendment right to confrontation of witnesses. Instead, the Court allowed for the presence in court of any other qualified analyst to testify to the results of the testing analyst/scrivener.

It is unclear where this case will go from here. However, it seems that the second part of the ruling renders the first part impotent. The second part of the holding ignores much of the analysis in Melendez-Diaz which makes clear that these types of reports are prepared in anticipation of trial. The court in Melendez-Diaz addressed the pressures on analysts to provide results helpful to the prosecution. The court in Bullcoming ignores this possibility leaving the analyst/scrivener free of cross examination on possible errors in the testing instrument or processes, or even the outright fabrication of the results contemplated in Melendez-Diaz.

Bullcoming takes a step in the right direction. At least, blood draw results will no longer simply be admitted as gospel with no testimony from a representative from the state lab. However, the right to confrontation and cross examination has taken a blow when the testing analyst can escape cross examination on his or her experience, expertise, testing procedures, background, history, biases, and prior work product to name only a few possible sources impacting credibility.

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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.

www.CollinsAttorneys.com

Legalization of marijuana is picking up steam in California. It is expected that there will be enough signatures to get the measure on the ballot in 2010. Possession of marijuana remains a crime under federal law. Possession of marijuana remains a crime in New Mexico, classified as possession of a controlled substance. The police in New Mexico continue to make arrests for marijuana. Likewise, they continue to allege intent to distribute for relatively small amounts of marijuana.

All the while the State of New Mexico continues to move forward with its groundbreaking medical marijuana program. There has been a shortage of medical marijuana. There has to date been only one licensed grower and distributor. There are currently 25 applications for non-profit licenses for the production and distribution of medical marijuana. Seven of these applications have been forwarded to the New Mexico Department of Health Secretary Alfredo Vigil.

There is bound to be a clash between the States of New Mexico and California and the Federal Government. The U.S. Supreme Court also has ruled that federal law enforcement agents have the authority to enforce and prosecute the federal laws against the production, sale and possession of marijuana even against state sanctioned programs. It is unclear whether the federal government will be able to force the cooperation of state and local governments in these activities. Without the assistance of state and local law enforcement, the federal government would be hard pressed to enforce the federal laws in California, a state of 40 million. The numbers are telling. In 2008, there were 847,000 marijuana related arrests. Only 6300 of these were made by federal law enforcement, representing less than 1% of the total.

It remains to be seen if New Mexico will follow the lead of California. Or will limit the legal use of marijuana to medical purposes thereby continuing to criminalize a harmless and common activity. The harm to otherwise law-abiding citizens goes well beyond the criminal penalties, which can be fairly severe in the case of possession of 8 ounces or more, which is classified as a 4th degree felony, and possession with intent to distribute which is at a minimum a 4th degree felony. Conviction can impact not only employment, but education since some convictions carry with the disqualifications for federal student loans or other aid.

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.

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.