Albuquerque Criminal Lawyer Blog

Stalking is a common domestic violence charge in New Mexico. The definition of stalking under the New Mexico statutes is fairly broad allowing prosecutors great latitude in bringing stalking charges.

Under the statute, stalking is defined to include any of the following acts on more than one occasion:

1) following a person in a place other than the residence of the alleged stalker, 2) placing another under surveillance by being present outside the person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence e of the alleged stalker, or 3) harassing another person.

Each and every element of the definition can be read very broadly to include some fairly innocuous behavior. A first time stalking offense is a misdemeanor. Under the prior law, a 3rd offense was a 4th degree felony.

However, due to the growing concern with domestic violence, the law was amended in 1997 to make a second offense a 4th degree felony. In addition, aggravated stalking may be charged for knowingly violating a protective order or no contact order.

Aggravated stalking is also a 4th degree felony. Aggravated stalking consists of knowingly violating protective order, violating a no contact order under conditions of release, stalking while in possession of a deadly weapon, or stalking a person under 16 years of age.

A 4th degree felony carries very serious penalties with possible jail time of 18 months and fines up to $5000 for each count. Most prosecutors will charge the offense of aggravated stalking only in cases involving real and serious danger to a victim. Others may err on the side of caution and charge it whenever the statute allows. Then there are those prosecutors that will charge everything conceivably possible under the alleged facts in order to gain strategic advantage. And felony charges most definitely place enormous plea pressure on a defendant due to the great risks associated with conviction.

To avoid any risk of charges for aggravated stalking, a person under a protective order or no contact order should have absolutely no contact with the alleged victim of any kind. This means avoiding contact even when the alleged victim initiates the contact. Charges under these circumstances are far too common.

The statute reads that a mutual violation "may" constitute a defense. Thus, a mutual violation is not an absolute defense. Nor does a mutual violation prevent the charges from being filed.

In short, it is highly inadvisable to test the boundaries of the statute. In a case of alleged domestic violence or stalking, the defendant should either stay away from the victim, or get the protective order or no contact order lifted. Any other course of action is extremely risky carrying very serious felony consequences.

Collins & Collins, P.C.
Albuquerque Attorneys

In every criminal domestic violence case such as battery or assault on a household member, the court will issue a no-contact order. The no-contact order prohibits contact between the defendant and the alleged victim. There can be very harsh penalties for violation of the no-contact order.

Violation of the no-contact order can result in a bench warrant for violation of the conditions of release. In the alternative, the judge may order a hearing to review the conditions of release. The judge can revoke the conditions of release and take the defendant into custody pending trial. The violation typically also results in new charges for the violation of the no-contact order. Repeated violations can result in felony charges.

Due to the severity of the possible consequences for violating a no-contact order, it is highly inadvisable to violate the order. This is the case even when the alleged victim wants contact. The fact is that the alleged victim will frequently want contact following domestic violence charges. However, judges are highly intolerant of violations of the no-contact order no matter what the wishes of the alleged victim. To avoid the wrath of the judge, the defendant must get the no-contact order lifted. To do this, the defendant must file a motion to modify the conditions of release to allow contact between the parties. The alleged victim must be present at the hearing on the motion to modify the conditions of release. Neither the court nor the prosecutor will allow modification in the absence of the alleged victim.

This can be a tricky situation. Cases where the alleged victim wants the no-contact order lifted typically involve very minor incidents. Frequently there was no domestic violence at all which may be why the alleged victim is so anxious to resume contact. The alleged victim in many of these cases called the police in error or for illegitimate reasons. As a result, alleged victims in these cases are often very nervous about going to court or speaking with the prosecutor about the case for fear of reprisals for making a false police report. And in essence, in order for the no-contact order to be lifted, the alleged victim must say that he or she does not fear harm from the defendant. One would think that this strongly suggests that no domestic violence occurred.

Unfortunately, prosecutors do not necessarily see it this way for many legitimate reasons. Then there are those that will not let go of a case no matter what the alleged victim says, even when he or she says unequivocally that there was no domestic violence. Some prosecutors will simply assume the alleged victim is lying. Instead, these prosecutors that will take the opportunity at the hearing on the motion to modify conditions of release to insist that the alleged victim cooperate in the prosecution of the case. It is therefore very important to know the prosecutor in the case before filing the motion to modify conditions of release. Many, if not most, are very reasonable with no time or inclination to prosecute baseless cases. With these, the motion hearing is worth pursuing and in some cases may even result in dismissal of the charges. With overly enthusiastic prosecutors, it may be both pointless and even unwise to file the Motion.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com