Albuquerque Criminal Lawyer Blog

The recent New Mexico Court of Appeals case of State v. Trevizo addressed the statute of limitations on first time DWI and reckless driving in New Mexico. The court concluded both first time DWI and reckless driving are petty misdemeanors under New Mexico law and therefore subject to a one year statute of limitations.

The facts are pretty straightforward. The defendant was arrested on October 13, 2005. The criminal complaint for DWI and reckless driving was not filed until April 12, 2007, one day short of 18 months from the date of arrest.

The defendant filed a motion to dismiss in Albuquerque Metropolitan Court for violation for one year statute of limitations on petty misdemeanors. The motion was denied and the defendant was convicted on both counts. The defendant appealed to District Court which reversed the Metro Court decision. The State then appealed the District Court ruling.

The relevant statutes as set forth by the Court of Appeals provide the following statute of limitations:

C. for a misdemeanor, within two years from the time the crime was committed; D. for a petty misdemeanor, within one year from the time the crime was committed; G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed.

The State argued under paragraph C, D and G of NMSA §30-1-8 (now paragraphs C, D & H under 2009 Amendments) resulted in either a 2 or 3 year statute of limitations. The State argued that because the offenses were in the MVD code and not the criminal code, they should be covered by the catchall 3 year provision in paragraph G. In the alternative, the State argued that because the MVD code stated that all MVD code violations were classified as misdemeanors in the absence of contrary language in the code.

The Court of Appeals disagreed pointing out a number of problems with the State's position. The Court noted the absurdity of placing all MVD violations under the 3 year statute of limitations by virtue of the fact that they fall outside the criminal code. The result would be that not only would first time DWI and reckless driving be covered by the 3 year statute, so too would "speeding violations, parking violations, failure to signal, following too closely, and other traffic violations." The result would be that these petty traffic offenses would carry limitations period equal to that to serious felonies.

After a thorough analysis of the case-law and statutes, the Court concluded that the classification of a crime should be determined by the possible penalties. In doing so, the Court also addressed the State's position regarding the classification of all MVD violations not specifically delineated in the code.

Granted the MVD code does have some contradictory language. Section 66-8-7(B) of the Motor Vehicle Code provides "Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both." Thus the MVD sentencing guidelines are consistent with sentencing for a petty misdemeanor despite the language suggesting that the offenses should be classified as misdemeanors.

Consistent with the possible sentencing of only 90 days, the Court concluded that both DWI first offense and reckless driving must be classified as a petty misdemeanor and therefore subject to the one year statute of limitation. For those facing dated DWI charges, keep in mind that the ruling is limited to first time DWI and reckless driving. Repeat DWI offenders face much longer sentences which would bring them under the 2 year misdemeanor statute of limitation or in 4th or subsequent DWI offenses, the felony limitations period.

Due to the inconsistency in the MVD code language, and the seriousness with which DWI is treated in New Mexico, it is likely that this case will be appealed to the New Mexico Supreme Court. In addition or in the alternative, the legislature may address the issue in the next session to lengthen the statute of limitations. As such, if you are faced with a situation like this, be sure to consult with a DWI attorney to identify the limitations period on your case.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent case of State v. Almeida illustrates the gravity of an illegal search and seizure in New Mexico. The case did not involve any deliberate wrongdoing by the officer. Rather, the case involved a stop of a vehicle based upon the officer's mistaken understanding of the traffic code.

The defendant, Rafael Almeida, had a couple of run-ins with the law on the day in question. First, he was stopped for running a stop sign. He provided false identification, was cited, and was allowed to continue on his way. Mr. Almeida later was stopped by another officer for what the officer believed to be an illegal execution of a left hand turn when he failed to complete his turn in the left most lane out of the intersection.

The officer questioned a very nervous and trembling Mr. Almeida. The officer noticed that the steering column was damaged with the ignition switch hanging from it. This indicated to the officer that the car might be stolen. Mr. Almeida was unable to produce a driver's license. The officer then asked Mr. Almeida to step out of the car at which time the officer noticed a gun on the floor of the vehicle.

Mr. Almeida was arrested and charged for a number of misdemeanors and felonies including felon in possession of a firearm and perhaps most notably under the circumstances the violation of the New Mexico Motor Vehicle Code for the presumed illegal turn.

Mr. Almeida filed a motion to suppress which was denied by the trial court. Consequently, he entered a conditional plea reserving his right to appeal on the issue of the legality of the initial stop. The New Mexico Court of Appeals reversed the trial court's ruling on the suppression motion.

The Court of Appeals, upon review of the traffic statute in question, found that there is no requirement that a motorist turn into the left-most lane on a left hand turn. The court found that the relevant "section simply does not specify a particular lane that the driver must end up in once the turn is completed." As a result, Mr. Almeida had violated no traffic laws and the officer had no right to stop him.

The Court of Appeals had previously held in State v. Anaya that a mistaken belief that a traffic offense has occurred cannot supply the reasonable suspicion necessary for a traffic stop. As such, the stop was illegal and all evidenced discovered after the illegal stop was suppressed. In other words, Mr. Almeida, at least on this occasion, is a very lucky felon.

In this case, there will be those that are taken back by the ruling. However, one might consider the consequences of allowing officer's to stop vehicles or initiate other types of searches and seizures under a mistaken belief in the law. Not only would this encourage ignorance of the law by officers, it would open up significant potential avenues for abuse by officers inclined to engage in illegal search and seizure. Fortunately, the New Mexico Court of Appeals will not go down that road.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of criminal charges in New Mexico, a conditional discharge is often a very positive outcome. A conditional discharge will result in the eventual dismissal of the charges.

A conditional discharge allows for the disposition of the criminal charges without an adjudication of guilt. This means that the defendant is never found guilty of any crime so long as all conditions of probation are met.

However, to get a conditional discharge, the defendant must enter a plea of guilty or no-contest. In the event of a violation of the terms of the conditional discharge, the plea then turns into a conviction.

The conditional discharge does not wipe the record clean. Though there is no conviction, there will always remain a record of the charges and the proceedings. As such, anyone doing a background check on the defendant will see that the charges were filed and dismissed.

Because there was no conviction, many defendants believe that the record should be expunged. The mere fact of the charges can have very serious consequences in the future. Unfortunately, despite the fact of the dismissal, the New Mexico Courts have held consistently the right to expungement to be very limited.

The issue came up most recently in State v. C.L. State v. C.L. addressed in depth the right to an expungement. In State v. C.L., a showing of adverse employment consequences due to the court record was expressly held to be insufficient for an expungement. Under the New Mexico Court of Appeals ruling in C.L., an expungement is possible only in case of a finding of unlawful arrest or unlawful conviction.

Unfortunately, a conditional discharge meets neither of these criteria. The conditional discharge is meant as a second chance of sorts. However, a conditional discharge will not completely wipe the record clean. This is possible only through expungement which is difficult and rare to put it mildly.

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

The New Mexico Habitual Offender statute is a tool available to the prosecution and the courts to enhance the sentence of a felony defendant who has a prior felony conviction within ten years of the date of the newly alleged crime. If the defendant is deemed a Habitual Offender, the statute increases the defendant's prison exposure significantly.

A habitual offender finding has very serious penal consequences. The first felony increases the sentence by one year, the second felony by four years and the third or subsequent felonies by eight years. The New Mexico Court of Appeals addressed the issue of double jeopardy in habitual offender sentencing in State v. May. Specifically, the Court addressed the use of a gun offense as both a separate crime as well as an enhancement to the underlying drug trafficking charges.

In 2007 Defendant James May pled guilty to "felon in possession of a firearm," a fourth degree felony along with several other misdemeanors. Maximum exposure for a fourth degree felony is 18 months and an additional 364 days for each misdemeanor. After the guilty plea was entered, the Prosecutor filed a supplemental criminal information alleging that James May was a habitual offender. The State sought to enhance the base felony sentence by four years.

The defendant May had 3 prior felonies. The state used as predicates one prior 2005 State felony conviction and one prior 1991 Federal conviction. Interestingly, the Court disregarded the State felony from 2005 summarily stating that it was not concerned with that case.

Instead, the Court focused on May's 1991 convictions. In 1991, May was convicted under federal law for Possession with Intent to Distribute Methamphetamine. Arising out of the same incident, the defendant was convicted of Carrying a Firearm during a Drug Trafficking Crime under 18 U.S.C. Section 924(c)(1). Rather than take what would seem to be the easier route for legitimating the 4 year enhancement with the one Federal conviction and the 2005 State conviction, the Court instead chose instead to use the two 1991 convictions.

It is well accepted that the State cannot use the same prior felony conviction twice during sentencing. However, the court determined that double jeopardy does not prohibit the use of two convictions for enhancement under two separate statutes as long as the predicate crimes are separate incidents of criminal conduct. It does not matter that both arose from the same judgment and sentence and the same underlying crime.

The defendant argued that the 924(c)(1) firearm crime was an enhancement of the original possession conviction and could not also be used to enhance the later State sentence. The Court disagreed finding that the federal firearm offense was clearly under federal law a separate and distinct conviction from the possession crime despite the fact that the two charges arose out the same incident. As such, the Court found that the 1991 convictions could serve as the basis for the 4 year enhancement.

Unfortunately for the defendant, the Court did not buy his double jeopardy arguments regarding duplicate use of the same offense for enhancement purposes. On the other hand, by the court's reasoning, the defendant might have dodged the 8 year enhancement by virtue of the Court ignoring the 2005 State court conviction.

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

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

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

The court cited State v. Ochoa as follows:

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com