Albuquerque Criminal Lawyer Blog

You have a right to an independent blood alcohol test when you have been arrested for DWI/DUI in New Mexico. In the past, this was more theoretical than real due to the lack of availability of on the spot independent testing. This has now changed in Albuquerque with a new independent blood testing service, BATDRAW.

BATDRAW will show up 24/7 anywhere within Bernalillo County, and in many of the outlying areas. The organization will send out a certified phlebotomist to conduct the test. The test results are fully admissible in a DWI/DUI defense. The results are also admissible for the MVD license revocation hearing. The BATDRAW blood test is far more reliable than the breath alcohol test utilized by law enforcement which has a acceptable 10% error rate.

The test is free so long as you submit to the State's breath alcohol test If you refuse the State's breath alcohol test, you will be charged for the test. In addition, you will be responsible for all costs associated with getting the testing technician to court at trial.

Take the State's test, then take the BATDRAW test to get accurate results. Insist on the BATDRAW independent blood alcohol test. Be vocal and leave no doubt that you made the request. As seen in State v. Duarte, any doubt in your request for an independent blood alcohol test will likely be construed against you.

You have the right to an independent blood test. You should exercise it if there are any doubts in your mind regarding the results of the law enforcement result. You should most definitely use the service if your results are close to .08 or .16 due to the recognized 10% error rate in the breath test. Clearly, you do not want the test if you are under the limit as the rate of error in the breath alcohol tests swings both ways.

The exercise could prove purely academic anyway due to New Mexico law that allows drivers to be convicted at levels below the legal .08 level, under the "impaired to the slightest degree" standard. However, it is far better to be fighting the "impaired to the slightest degree" than the statutory presumptive impairment above .08. And, anything over .16 puts you at a severe disadvantage due to aggravated DWI/DUI charges for levels over .16. In addition, .08 or higher virtually guarantees a revocation of your license by MVD.

Put this number in your phone., 505.712.7180. Give to your friends and family. Hopefully, you will not need it, but if you do, you do!

www.CollinsAttorneys.com

The Albuquerque Journal reported today that a bill toughening DWI/DUI penalties for first offenders died in the New Mexico Senate yesterday. The bill was considered a top priority for New Mexico Governor Bill Richardson.

The bill would have established mandatory jail time or community custody for first time DWI/DUI offenders. The bill would have required a minimum 3 day jail sentence or 30 day community custody for first time offenders. Community custody requires electronic monitoring (ankle bracelet) 24 hours a day for those in the program. Both jail time and community custody are very costly. These costs apparently derailed the bill.

Those in opposition to the bill pointed to the unfunded costs in the program. They also pointed to the strain the program would place on already overcrowded jails throughout New Mexico. Finally, at least one senator, Bernadette Sanchez of Albuquerque, addressed the problem of overreliance on penalties and too little emphasis on treatment.

There were 150 DWI/DUI fatalities in New Mexico in 2009. 70 percent of those were caused by first time offenders. Governor Richardson and others have argued that tougher penalties will act as a deterrent. Richardson first proposed the bill when a drunk driver crashed into a carload full of teens in the summer of 2009 killing 4 of the teenagers.

DWI/DUI is a very serious problem in New Mexico. 150 deaths is unacceptable. The real challenge is to address the problem in a manner that effectively reduces drinking and driving. The reality is that every DWI/DUI carries mandatory jail time. The DWI/DUI offender is arrested and jailed pending a first appearance. Often, the timing of the arrest over the weekend will carry 2 or more days in jail before the first hearing is set for release.

Mandatory jail time will likely have no greater deterrent value than the deterrents currently in place which include arrest, jail, courts costs, fines, counseling, probation, community service, loss of driving privileges and vehicle seizure among others. If this is not enough, the attorney fees can be financially crippling for some.

The penalties and costs of DWI/DUI are pretty staggering as the law currently stands. A new approach is needed beyond the customary call for stiffer jail time. What that approach would be remains to be seen.

www.CollinsAttorneys.com

A series of articles over the last month point to significant budgetary issues facing law enforcement, the courts, and the District Attorneys offices across New Mexico. Albuquerque will feel the crunch as much as any.

In mid November, it was announced that the State police will be forced to cut back on hiring and training of new officers. The budget issues are so severe that the first 2 police academies for 2010 have been cancelled completely. The State Police was already short on officers. These additional cutbacks will leave the force stretched very thin.

The Second Judicial District Court in Albuquerque is down 23 positions. According to a national study, the court needs an additional 36 staff, and 10 judges to make it work correctly. In response, the clerk is cutting hours back even further to 10 AM to 4 PM. All court activities, including hearings, are being cut back as well. On Fridays, all court activity will close at 4:15 PM.

The DWI/DUI interlock fund for the poor is also running low. Interlock devices are mandatory for all DWI/DUI offenders. For those that refuse the breath alcohol test or blow .08 or over, the license revocation is automatic by Motor Vehicles Division (MVD). In addition, any driver convicted of DWI/DUI will be ordered by the court to have the interlock device for 1 year as a term of probation.

So what does any of this have to do with DWI/DUI enforcement in Albuquerque? It points to overburdened police departments, courts and district attorney's offices. Though I have not yet seen numbers of Albuquerque Police Department, the Metropolitan Court in Albuquerque, or the District Attorney's Office in Albuquerque, the trends are clear. Government budgets are in crisis in New Mexico and across the nation. Albuquerque is not immune.

All the while, Albuquerque Police and the Albuquerque District Attorney's office continue to burden the courts and state budgets with overzealous DWI /DUI enforcement. Albuquerque Police's DWI/DUI Unit continues to carry a 2 arrests per shift quota for its officers. Related to this quota is the continued and common practice of arresting drivers who are below the legal limit of .08 breath alcohol level. And then there are the DWI/DUI arrests of drivers who have not even been driving as with the recent veteran who was sleeping in his car to avoid driving while intoxicated.

Much of the impetus for these overzealous policies has arguably been driven by the quest for state and federal funding for DWI/DUI enforcement. These arrests, no matter how unfair and illogical, and in the case of arresting drivers for sleeping off a drunk contrary to public policy, helped push up the DWI/DUI statistics for Albuquerque and the State of New Mexico. With these statistics, the state was able to tap into federal funding, and Albuquerque was able to tap into both state and federal funding.

The well is running dry. So hopefully, the police will get back to enforcing the DWI/DUI laws in the spirit in which they were written. The State needs to keep drunk drivers off the road. That is the bottom line. A driver under the .08 limit is not legally drunk. If it is the intent to make it otherwise, then rewrite the law, or make it illegal to have any a sip of alcohol before getting in a vehicle. This raises all kinds of taxation issues as neither New Mexico nor Albuquerque can afford the loss of taxes associated with bars and restaurants. Again, it comes down to money.

Finally, don't encourage people to drive drunk by the threat of arrest for trying to do the right thing. Let drivers, encourage drivers to sleep it off. It makes no sense force a decision between driving drunk and being arrested for driving drunk for sleeping in your car. A gambling oriented individual would drive drunk. Thus this ridiculous trend endangers lives Perhaps that is not enough to halt to policy. If reason and logic fail, money never does. These policies are stretching an already overburdened court with cases that should not be there.

www.CollinsAttorneys.com

New Mexico Senator Tom Udall has introduced legislation that would require all states to implement ignition interlock programs modeled after New Mexico DWI program. New Mexico was the first state to require ignition interlock devices for all DWI/DUI offenders.

By law in New Mexico, a driver's license is automatically revoked by the Motor Vehicle Division (MVD) for either driving at or above .08 breath alcohol level or for refusing the breath alcohol test. For first time offenders, the revocation period is up to one year. For those individuals who test at .08 or higher, the first time MVD revocation is for 6 months. For those that refuse the test, the revocation is for one year. For second and subsequent offenses, the revocation is for one year.

During the revocation period, drivers may obtain an interlock license. The interlock license allows the revoked driver to drive so long as the vehicle driven has an interlock license installed. An interlock device will not allow a vehicle to start until the driver has blown into the breath alcohol measurement device. Any detection of alcohol will disable the vehicle. Driving without the interlock is charged as driving on a revoked license which carries up to 1 year in jail.

In addition to the MVD license revocation, the Court will also impose a one year interlock requirement on those convicted of DWI. Often, the court ordered interlock period will extend well beyond the administrative period of revocation. The interlock device is ordered as a part of the probation ordered in all DWI/DUI convictions. Violation of this provision is considered a serious violation of probation which could result in revocation of probation and incarceration for the remainder of the sentence.

New Mexico's DWI laws are pretty stiff. Admittedly, the results have been a significant decrease in the levels of drinking and driving in the state. The Centers for Disease Control has determined that repeat offenses dropped by 73% where the device was in use. These results clearly indicate the success of the program.

On the other hand, New Mexico has taken DWI enforcement to the extreme. People are routinely arrested, particularly in Albuquerque, even when their breath alcohol scores are below .08, sometimes significantly below .08. In addition to arresting and charging drivers below the .08 legal limit, the New Mexico Courts will convict people when they have not even been driving as in the recent case where a veteran was charged with DWI in Albuquerque while sleeping in his vehicle.

If Udall's bill passes, states could lose federal transportation funding for failure to adopt and enforce the act. Let's hope it does not become the race for federal funds that has led to the overzealous and completely irrational enforcement DWI laws that has occurred in New Mexico.

www.CollinsAttorneys.com

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.

It is comes as a surprise to many that their license may be revoked even though they eventually win their DWI/DUI case. In fact, the Implied Consent Act under the New Mexico Motor Vehicle Code calls for the automatic revocation of your license if you blow .08 or above on the breath alcohol test (.04 for commercial drivers, and .02 for minors) or you refuse the test. The length of the revocation depends upon whether the DWI/DUI is a first offense or a repeat offense. You can view of all the consequences of a DWI/DUI by clicking here.

Under the Implied Consent Act, it does not matter that your DWI/DUI case is eventually dismissed or even if you win your case at trial. The MVD revocation is automatic once you register .08 on the breath alcohol test or refuse to take the test.

The only way to insure that you keep your license is to fight your case at the MVD Revocation Hearing. In order to do this, you must request a hearing by mailing the MVD Request for Hearing within 10 days of your arrest for DWI/DUI. You must enclose $25.00 with your request or the request will be denied. If you fail to mail the request within 10 days or fail to enclose the $25.00, your license will be automatically revoked.

If you do request the hearing, your attorney will attend the Revocation Hearing. The good news is that you do not have to attend this hearing. Only your attorney must attend. The bad news is that these hearings are almost a rubber stamp for the revocation of your license. The only issues addressed at the hearing are whether:

1. The law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle while under the influence of alcohol or drugs;
2. The person was arrested;
3. The hearing is held no later than 90 days after the notice of revocation (date of arrest);
4. The person blew .08 on the breath alcohol test (.04 for commercial vehicles and .02 for minors) or the person refused the breath alcohol test after being advised that refusal could result in automatic license revocation.

The standard at the MVD hearing is very low. It is a preponderance of the evidence which means the officers must simply show that more than likely you are guilty of driving while under the influence of alcohol or drugs. There are no rules of evidence so the police can offer pretty much anything they wish to prove your guilt. The MVD Hearing Officers will very rarely dismiss the case once it gets to a hearing.

So how do you win these? You or your lawyer shows up and hopes that the police officers do not show up. Both the officer that stopped you must show up to prove element (1) above, the DWI/DUI Officer must show up to prove the rest. If both officers do not both show for the hearing, the case is dismissed. If they show, then your attorney has a good opportunity to interview the officers in preparation for the defense against the DWI/DUI charges in criminal court where you have much greater rights, and many more opportunities to present a defense.

MVD License Revocation - Hearing Request.pdf

Collins & Collins, P.C.
http://www.collinsattorneys.com