Albuquerque Criminal Lawyer Blog

The New Mexico Delinquency Act creates three different types of juvenile offenders. The juvenile criminal offender's classification is very important, because it determines whether they may be tried as an adult. This in turn will determine the possible penalties they can receive.

A "serious youthful offender" is a child from 15 to 18 years old that is charged with first-degree murder. Once charged with first degree murder, they are no longer a juvenile under the law and are automatically sentenced as adults if they are convicted.

A "youthful offender" is a child aged 14 to 18 and found guilty of specified felony offenses (like second degree murder, assault with intent to commit violent felony, kidnapping, aggravated battery, criminal sexual penetration and robbery); who has three prior, separate felony convictions in the past three; or is 14 and found guilty of first degree murder. A youthful offender may receive either a juvenile or adult sanction.

Finally, a "delinquent offender" is a child that commits a less serious crime. The child is tried in Children's Court under the Children's Court Rules. A delinquent offender will receive juvenile sanctions under the Children's Code.

A recent case before the New Mexico Court of Appeals, New Mexico v. Nanco, examined whether a child charged with murder but only found guilty of a lesser crime should receive credit for the time they serve before sentencing.

The defendant was a fifteen-year-old who was arrested because police believed he was involved in a fatal shooting. He was charged with one count of first-degree murder and two counts of tampering with evidence related to the shooting. Due to his age and charges, the defendant was classified as a serious youthful offender and tried as an adult. After a trial, he was found not guilty of first-degree murder and one of the evidence tampering charges. However, the jury found him guilty of voluntary manslaughter and tampering with evidence.

The defendant's charges meant that his classification would be changed to a delinquent offender. Under New Mexico law, a serious youthful offender would be entitled to a credit for the time served prior to sentencing, but a youthful offender or a delinquent offender would not. In New Mexico, juveniles do not receive credit for time served. The defendant argued that he should receive credit for the time served, because he was initially categorized as a serious youthful offender. The court disagreed.

The New Mexico statute allowing pre-sentence credit specifically states that the credit applies against a sentence. However, a delinquent offender, like the defendant, is not "convicted" or "sentenced." Under New Mexico law, the defendant was "adjudicated" and received a "disposition." Since the defendant was a juvenile and was not sentenced, the pre-sentence credit law cannot apply to him.

In addition, New Mexico seeks to rehabilitate juveniles in the criminal justice system. In order to do so, juveniles are treated differently from adults. One important difference is the way consequences are determined, with the possibility that a sentence can be cut short or extended based upon the needs of the child and the public. By allowing pre-sentence credit, the juvenile's rehabilitation could be cut short at a critical time, harming both the child and the public at large.

The juvenile criminal process is somewhat different than the adult criminal process. Because of the differences, it is typically beneficial have an attorney experienced in the juvenile criminal courts. If your child is involved in the juvenile criminal courts in the Albuquerque area, feel free to contact us at Collins & Collins, P.C.

Related Reading:
Timely Preliminary Hearings for Juveniles Facing Adult Charges in New Mexico
Youthful Offender, No-Bills and Time Limits in Juvenile Criminal Cases
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?

Collins & Collins, P.C.
Albuquerque Attorneys

According to the 2005 Survey of Violence Victimization in New Mexico, one out of every four adults in New Mexico will be a victim of domestic violence during their lifetime. In 2007, there were 22,286 domestic violence incidents reported to law enforcement within the state. Domestic violence is a serious crime with severe and far-reaching consequences for both the victim and the alleged perpetrator. For purposes of this article, we are focusing on the consequences for the alleged perpetrator.

Aside from serious criminal penalties, there are several many other consequences to a domestic violence conviction and even to allegations of domestic violence. These are often referred to as collateral consequences. Domestic violence charges can follow an individual around for a very long time and become a factor in several unexpected situations. Findings of domestic violence can have disastrous immigration consequences for non-citizens. A finding of domestic violence can also impact the right to carry a firearm. Additionally, a domestic violence conviction can affect an individual's employment, security clearances, student loan, and scholarship eligibility.

Domestic violence charges are especially serious for non-citizens. Even in the absence of a domestic violence conviction, non-citizens may face deportation, loss of immigration status, and future inadmissibility into the U.S. In many cases, admission of guilt alone may trigger deportation or loss of immigration status. Making the situation even more difficult for non-citizens, Early Intervention Programs, Conditional Discharges, and Deferred Sentences that ultimately end in a dismissal of charges may require a defendant to admit guilt. Since admitting guilt may lead to deportation and other negative immigration consequences, even otherwise very favorable outcomes are not available to the non-citizen.

Under both New Mexico and federal law, a person convicted of domestic violence may not possess a license to carry a firearm. Under federal law, the loss of the license is permanent, and each violation of this law carries a possible prison sentence of up to ten years. This can be especially damaging if the defendant's job requires carrying a firearm, like police officers, members of the armed forces, or armed guards. A domestic violence conviction also bars an individual from hunting with a firearm.

A conviction for domestic violence will have other serious employment consequences. A growing number of employers conduct background checks on prospective employees and are generally reluctant to hire an individual convicted of a crime. It is estimated that up to two thirds of employers will not hire an individual with a criminal record. Worse yet for a those charged with domestic violence, a finding of domestic violence may itself disqualify the person for many jobs.

Furthermore, a conviction of domestic violence may trigger the revocation of a number of state-issued and/or professional licenses or make an individual ineligible to obtain a license. These may include medical, nursing, contractor, education, real estate, or several types of care licenses. An individual's government security clearance or ability to obtain clearance may also be compromised by allegations of domestic violence, especially if the particular clearance requires the individual to carry a firearm.

Domestic violence convictions will affect an individual's eligibility to obtain a student loan or scholarships in many cases. Many public and private institutions ask scholarship and student loan applicants whether they have been convicted of a domestic violence crime and consider it a factor when making a decision. Other scholarships, including some ROTC scholarships specifically make individuals who have a domestic violence conviction ineligible.

If you are being accused of domestic violence, it is important to understand and consider all of these collateral consequences as your case proceeds. It is especially important to understand these issues when deciding whether or not to accept a plea offer. An experienced criminal defense attorney will be able to explain this to you and to help guide you through a very difficult process.

Related Reading:

Domestic Violence Early Intervention Programs in New Mexico
Armed Forces Eligibility Consequences of Criminal Convictions
Firearms and Domestic Violence: A Toxic Mix

Collins & Collins, P.C.
Albuquerque Attorneys

It is not unusual for a person to be arrested but never charged. It is also not unusual to be arrested and charged, but not convicted. When either of these situations arises, among the first concerns is the effect that the arrest will have on future employment.

The case-law and the EEOC make clear that with few exceptions employers are prohibited from blanket discrimination on the basis of arrests records alone. Such discrimination would constitute a violation of Title VII of the Civil Rights Act of 1964. The reasoning behind this is clear.

It is has been well established that arrest records alone are not a reliable indicator that the person has actually committed a crime. In addition, and related to the first, it is clear also that discrimination based upon arrest records alone has a highly discriminatory impact on minorities, particularly blacks and Hispanics. As such, these practices are highly discouraged.

There are some exceptions to this prohibition. However, the exceptions are fairly narrow and the burdens are on the employer to prove a legitimate basis for using an arrest record to justify a hiring or other employment decision. The EEOC sets forth the business justification exception with a thorough discussion in its report, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964."

Though business justifications may justify consideration of arrests records in hiring or other employment decisions, the burden is on the employer to show that the practice is necessary for its business operations. The employer must both show that the arrest indicates culpability and that the basis for the arrest has some rational relationship to the employment position at issue. If either is missing, then an arrest alone cannot form the basis of an adverse employment decision.

In New Mexico, the second criterion is perhaps the most problematic since many jobs here require certain levels of security clearance. However, other jobs might pose problems as well such as cashiering, banking, bookkeeping, accounting or other such jobs where the arrest was for theft or other crimes of dishonesty. There are certainly many other situations where the arrest if indicative of guilt would fall within the second prong of the business justification exceptions.

Though consideration of arrest in employment decisions may fall within the exception, there remain limitations. First, and foremost, there cannot be a blanket policy of excluding employment for anyone with an arrest record. This would most certainly violate the law. Instead, the employer must make additional inquiries into the circumstances of the arrest. The employer must then determine that the arrest in fact indicates guilt and that guilt of such an offense has some bearing on job performance. The burden is on the employer to prove both these elements.

All this being said (i.e. employers cannot have a blanket policy against hiring those with arrest records, the burden is on the employer, the burden is high and so on) the problem for employees in this position is that it may be hard to prove. More to the point, it may be very expensive to prove which may make obtaining an attorney quite difficult in the absence of some very compelling circumstances.

Collins & Collins, P.C.
Albuquerque Attorneys

A charge of domestic violence in New Mexico is always very serious. There are numerous and severe consequences for a domestic violence conviction. A charge of for felony domestic violence steps up the seriousness and the possible consequences.

Most domestic violence is charged as a misdemeanor. As a misdemeanor, the maximum possible jail time is one year. Once a case is charged as felony domestic violence, the penalties are greatly enhanced beginning at 18 months possible prison time on a 4th degree felony, 3 years on a 3rd degree felony, 9 years on a 2nd and 18 years on a 1st degree felony.

As a felony, the prosecutors are typically much more aggressive in prosecution as well. For instance, in minor misdemeanor domestic violence where there are no injuries or weapons, the prosecutor will not pursue the alleged victim's cooperation quite as aggressively as in a felony. In a felony domestic violence where there are injuries, weapons or other felonies involved, the prosecutor or district attorney will often be significantly more persistent in tracking down the alleged victim and getting the alleged victim to court for trial.

There are a number of ways to charge felony domestic violence. Perhaps the most common is aggravated assault against a household member which is classified as a fourth degree felony. This charge requires, "(1) unlawfully assaulting or striking at a household member with a deadly weapon; or (2) willfully and intentionally assaulting a household member with intent to commit any felony."

The weapons portion seems straightforward enough. However, this language can be broadly construed by the prosecutor. The mere presence of some deadly weapons such as a knives or guns even in the absence of a threat may trigger this charge. In addition, the term deadly weapon itself may be stretched to include otherwise innocuous items depending on the circumstances and the alleged intent of the defendant. And then of course the construction of "intent" is always a slippery matter.

The second part of the definition of the offense can be even more perplexing and frustrating to defendants. The "intent to commit any felony" covers a lot of ground. It is not uncommon to see the alleged facts stretched to logical extreme in order to meet the requirements of this element. Though there are countless ways this charge might arise, the most frequent are kidnapping and false imprisonment. These are topics unto themselves but suffice it to say that the commonly held definition of these terms is frequently only remotely related to the facts of a particular case.

In short, there are countless ways to arrive at felony domestic violence charges. The basis for a felony domestic violence charge is most often clear from the alleged facts. On other occasions, the charge can be quite a stretch from the facts. Unfortunately, however one gets there, the charges are very serious and the possible consequences quite severe.

Collins & Collins, P.C.
Albuquerque Attorneys

The first and among the most serious consequences a person arrested for DWI/DUI will face is the revocation of their driving privileges through Motor Vehicles Division (MVD). In fact, a DWI driver has only 10 days from the date of arrest to send in a Request for License Revocation Hearing to MVD. Failure to send in the request results in automatic revocation.

There is much confusion with DWI drivers about the jurisdictional issues between the MVD revocation and the criminal DWI proceeding. In fact, the two are completely separate. In other words, you can win at the MVD hearing and still lose at trial in the criminal proceeding. Likewise, you can lose at the MVD hearing and win at trial.

Both MVD and the criminal court have the authority to revoke the DWI offender's driving privileges. The length of the revocation depends on the number of DWI convictions and whether the charge was aggravated DWI.

In addition to the overlapping jurisdiction over driving privileges, the period of revocation may be different between MVD and the criminal court. For example, on a first time simple DWI (non-aggravated DWI), the revocation by MVD is 6 months. Upon conviction in the criminal proceeding, there is a mandatory one year interlock requirement.

With both the MVD revocation and the interlock requirement imposed as a result of the criminal conviction, driving without an interlock and an interlock license results in criminal charges for driving on a revoked license. A conviction for driving on a revoked license carries up to one year in jail.

The criminal court may impose he revocation from the time of the conviction. The MVD hearing often occurs much earlier than the criminal trial since it must be set by law within 90 days of the arrest. The court may, but does not have to, allow for credit for the MVD interlock period. Therefore, the actual revocation and interlock period may stretch beyond one year even on a simple first DWI.

Finally, the burdens of proof are different between the two hearings. The recent case of Glenn v. MVD has significantly lessened the burdens at the MVD hearing. Under the Glenn case, the state need not even prove the stop was legal. As a result of this case, the MVD hearing is even more formality than before since the State need only show the hearing was held within 90 days of arrest and the driver blew .08 or above or refused to blow.

The burdens are no better in the criminal proceeding. The State need only show (argue) that the driver's ability to drive was "impaired to the slightest degree" by alcohol. This is really no standard at all. On the upside, the State is supposed to show that the driver was legally stopped. This again is a fairly low burden since a reason can always almost always be found for pulling over a driver.

The bottom line is that a DWI seriously jeopardizes driving privileges. The driver and his or her attorney must run a gauntlet of hearings where the burdens are seriously stacked against them. In fact, it is pretty rare that a DWI arrest will not result in the revocation of driving privileges in some fashion unless the officers simply do not show up to fight.

And the moral to the story is "Don't Drink and Drive." It is not worth it.

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

Expungement of a criminal record is very difficult, and in New Mexico very rare. In order to obtain an expungement, the defendant/petitioner must show extraordinary circumstances justifying the expungement. As it happens, this is a near impossible standard in New Mexico as the law now stands.

The 2010 New Mexico Court Appeals case of State v. C.L. makes clear that adverse employment consequences do not rise to the level of "extraordinary circumstances." Rather, the court stated that adverse employment consequences are not an extraordinary consequence but a natural result of a criminal charge or conviction.

State v. C.L. involved an individual that was charged with first degree felony child abuse resulting in great bodily harm. She pled to 4th degree felony child abuse on a conditional discharge. The conditional discharge indicated that upon successful completion of the terms of 5 years of probation, there would be no adjudication of guilt. In fact, the petitioner was released early from probation due to her performance on probation.

The petitioner was denied several employment opportunities due to the charges despite the fact that there was no adjudication of guilt. She therefore sought to have her the charges expunged and all records related to the charges sealed.

The Court of Appeals recognized that many states allow district court judges authority to expunge criminal records. The Court, however, refused such authority for New Mexico's district court judges.

Petitioner's arguments of extraordinary circumstances based upon the fact that she was only an accessory, she entered an Alford plea, she was granted a conditional discharge, she was released early from probation and finally that she was suffering adverse employment consequences collectively did not amount to "extraordinary circumstances."

The Court did not expressly set forth the criteria necessary to establish "extraordinary circumstances." However, the Court in addressing the shortcomings of the petition did suggest some very strict parameters for an expungement. The Court referenced the 1997 New Mexico Court of Appeals case of Toth v. Albuquerque Police as follows:

" in Toth, Defendant does not challenge the accuracy of the information "in her record[,] . . . the general interest of law enforcement agencies in retaining" the criminal records, or "the lawfulness of the underlying arrest," and she has not demonstrated "that the dismissal of [the] charges against [her are] predicated on factual innocence."

In short, based upon this language, it appears that to show "extraordinary circumstances" necessary for an expungement, the defendant/petitioner would have to show inaccuracies in her criminal record, constitutional violations suggesting unlawful arrest, and/or a wrongful conviction. This is an extraordinarily high hurdle that very few defendants will be able to meet.

Collins & Collins, P.C.
Albuquerque Attorneys

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

Many New Mexico courts, including Albuquerque's Metropolitan Court, offer a domestic violence early intervention program for first time offenders. In order for a candidate to enter the program, the defendant, district attorney and presiding judge must all agree to a referral to the Early Intervention Program.

Assuming that the case is referred to the Early Intervention Program, the criminal case is stayed and is now basically in limbo. The case is taken off the presiding judge's criminal docket and transferred to the judge who oversees the Early Intervention Program.

An Early Intervention Program staff member interviews the candidate to ensure that the program is a good fit. The staff member is interviewing the person for two primary reasons. First, it must be determined that the person is voluntarily entering the program. Second, the defendant must admit some wrongdoing and that counseling would be beneficial.

An admission of wrongdoing is not the same as admitting guilt. Neither is it admitting to the allegations of the alleged victim. It is simply an admission of some wrongful behavior which would indicate and benefit from counseling.

On the other hand, a person who denies any wrongdoing at all is not a good candidates for the program. In the absence of some admission of wrongful behavior and the need to change the behavior, the defendant will not be admitted to the program.

Admission to the program carries with it a minimum of 6 month of supervised probation. While on probation, the person must comply with the a number terms. The standard terms include no further violations of law, no new domestic violence charges, no drugs or alcohol, and the completion of counseling. In addition, the individual must meet with his or her probation officer twice a month for the first 90 days. Depending on progress, this may be reduced to once a month after 90 days.

The goal of the program is for people to develop new relationship skills. As such, the most important part of the program is the completion of counseling. Counseling is provided by private sector domestic violence counseling programs authorized by the Court.

It is said that Domestic Violence is based on power and control not necessarily anger management. Physical abuse, manipulation, verbal abuse and demeaning comments are all forms of degrading and abusive uses of power and control often indicating the presence of and/or risk of domestic violence. Students are taught empathy, personal boundaries and communication skills to prevent future incidents.

The program has a high success rate due in part to the admission requirements. The program has a graduation rate of about 90% and a recidivism rate of only 8%. Not only does the individual benefit from counseling thereby avoiding future charges of domestic violence, completion of the program results in a dismissal of the charges. The value of avoiding conviction and the consequences of a domestic conviction cannot be overstated.

Collins & Collins, P.C.
Albuquerque Attorneys

Juvenile criminal offenders may be charged as adults for the commission of very serious criminal offenses. In order to charge the child as an adult, and thereby expose the child to adult criminal sentencing, the Court must conduct an amenability hearing.

The amenability hearing is held to determine whether or not the juvenile is amenable to treatment and rehabilitation through the juvenile justice system. If the court finds the juvenile is not amenable to treatment and rehabilitation, then the child is tried as an adult. The consequences for the child are enormous as the child is taken outside the sentencing scheme of the juvenile justice code which limits possible incarceration up to the child's 21st birthday.

The New Mexico Supreme Court in State v. Rudy B took up the issue of whether amenability findings should be determined by a jury. In New Mexico, these findings have always been done by the judge. The attorneys for Rudy B challenged the judge based amenability under the 2000 Unites States Supreme Court case of Apprendi v. New Jersey.

Apprendi held that any fact that would result in a penalty beyond the statutory maximum must be heard and determined by a jury. Certainly, an amenability hearing involves facts and evidence that would lead to penalties beyond the maximum sentencing under the juvenile code. In very serious cases, such as the violent offenses involved in Rudy B, the defendant is looking at some very lengthy incarceration well beyond the typical jurisdiction of the juvenile courts.

The Rudy B opinion was pretty lengthy going into the history of amenability adjudications in New Mexico, Apprendi and Oregon v. Ice. The 2009 U.S. Supreme Court in Oregon v. Ice allowed an exception to Apprendi in a case involving concurrent sentencing. However, Oregon v. Ice seemed to be fact specific in that the concurrent sentencing was for completely separate and independent criminal acts.

The New Mexico Supreme Court then framed the discussion of Oregon v. Ice as the refusal of the Court to extend the role of the jury into concurrent v. consecutive sentencing settings where the jury had traditionally played no role. This was an interesting stretch of logic in to say the least.

The Court in Rudy B, based upon its reading of Oregon v. Ice, then took us through the history of amenability hearings in New Mexico. In the end, after a nostalgic trip through history, the Court said judge based amenability was not a violation of Apprendi because it had always been done this way in New Mexico.

It is interesting and disappointing that the Court would resort to the same logic that has reinforced all manners of legal and social injustice in the past: "It's just the way it is. It has always been this way."

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico continues its crackdown on DWI. In keeping with its goals, the consequences for DWI conviction are growing increasingly harsh in New Mexico. This is so for all levels of offenders, including first time DWI offenders.

In the past, and under sentencing for most crimes other than DWI offenses, a person placed on probation is given credit against his or her total sentence for all time served on probation. In other words, if a person is placed on one year of probation and violates 6 months in, he or she is exposed only to 6 months jail time on the remaining term of the sentence.

In the case of DWI offenders, the State of New Mexico has taken a fairly harsh position. For DWI offenders, there is no credit against the total deferred or suspended sentence for time spent on probation. As such, in the prior example, if a person violates 6 months in on a one year term of probation for a DWI offense, he or she is facing the full one year jail sentence.

The statutory language of NMSA §66-8-102(S) is clear stating in part, "the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation." The statute applies to all levels of DWI offenders including first time offenders. Lest anyone believe otherwise, the New Mexico Court of Appeals in State v. Ordunez states "Subsection (S)...is applicable to all levels of DWI offenders who violate probation..."

Subsection (S) was addressed in the State v. Ordunez in the context of jurisdiction following the lapse of probation. The primary concern in Ordunez was whether or not the court had lost jurisdiction over the defendant to implement the harsh provisions of Subsection (S).

In Ordunez, the defendant pled guilty to felony DWI. He was sentenced to 2 ½ years, with all but two suspended. This means he was only to serve 6 months in jail with 2 years of probation following release.

Mr. Ordunez violated his probation in the last month of the 2 year probationary period. The State moved to revoke his probation seeking the full two year sentence term. Fortunately for Mr. Ordunez the case did not get to court prior to the expiration of his 2 year probation period.

Because his probationary period had lapsed prior to the probation revocation hearing, the district court held that the court had lost jurisdiction over Mr. Ordunez. The New Mexico Court of Appeals in State v. Ordunez agreed. As such, Mr. Ordunez was spared the consequences of the application of Subsection (S) to his violation of probation.

Mr. Ordunez dodged a bullet through sheer luck, overloaded district attorneys and overcrowded court dockets. In light of the ever increasing penalties for DWI, a DWI offender would do well to avoid even the smallest technical violations of probation. It is not worth the risks. And, it is unlikely that most will be so lucky as Mr. Ordunez in the case of motivated prosecutor and a receptive judge.

Collins & Collins, P.C.
Albuquerque Attorneys

Sentencing is New Mexico felony criminal cases can be pretty tricky as both the prosecution and defense argue their positions to the judge. The State typically argues that the defendant should spend time in prison while Defense counsel argues against prison time.

Sentencing is greatly complicated when there is a firearm involved with the felony charges. When the defendant is convicted of a felony and a firearm is used, there really is no opportunity for the Defense to argue for deferred jail time. In other words, the defendant, if convicted, is going to prison. Prison time is mandatory.

When a defendant is convicted of a non-capital felony and through a separate finding of fact by the jury it is determined that a firearm was used, the judge shall increase the sentence by one year. For a second felony conviction where a firearm is used the sentencing is enhanced by three years.

It is important to realize that a firearm is defined as a weapon designed to propel an object by an explosion. There is a significant distinction between a firearm and a deadly weapon. Many objects may be used as deadly weapons. Much of the classification of a deadly weapon depends upon intent. As such, a lamp if used with deadly intent constitutes a deadly weapon. Firearm classification is more restrictive. For instance, a bb gun or even a C-O2 air gun may constitute deadly weapons depending upon the intent and use, but neither are considered firearms.

The Defendant is looking at mandatory jail time for firearm sentencing because the Judge is mandated by law to enhance the sentence. Moreover, the defendant must spend the entire firearm enhanced sentence in prison. "Good time" reduction in sentencing is not allowed.

There are a few defense strategies that may avoid the felony firearm enhancements. One possible strategy used by Defense Counsel to avoid jail time is to negotiate with the state and plea bargain the underlying felony offense to a misdemeanor. When the felony is pled down to a misdemeanor, the firearm enhancement is taken out of the equation in determining sentencing.

Another possible approach is through the jury instructions issued to the jury at trial. The goal is to include a lesser misdemeanor offense in the jury instructions. This will allow the jury to consider the less serious offense. If the jury finds guilt on only misdemeanor offenses, the felony firearm enhancement is not in play because the underlying charge is a misdemeanor and not a felony.

Firearm charges are extremely serious. They take many possible defense and plea options off the table. Anyone facing a firearm related charges would be well advised to contact an experienced New Mexico criminal law attorney as early in the criminal process as possible.

Collins & Collins, P.C.
Albuquerque Attorneys

Though it can be a pain, failure to balance your checkbook can be significantly more painful in New Mexico. Under New Mexico's Worthless Check Act, a bounced check over $25 may be charged as a felony.

Business establishments may report individuals who write bad checks to the District Attorney who will prosecute the matter. It is a serious crime in New Mexico to write a check without enough funds or credit in your account. This is particularly true of late with a new focus on property crime in Albuquerque. The possible penalties for even inadvertent NSF checks (hot checks) can be severe.

The penalty for writing a NSF check for over $1 but less than $25 is a fine up to $100 and up to thirty days in jail or both. The penalty for writing a NSF check for over $25 is a fine up to $1,000 and imprisonment of not less than one year and up to three years in the Department of Corrections. The penalties are intentionally severe with the Worthless Check Act's stated purpose to "remedy the evil of giving bad checks".

The defense to these charges is rather limited. Defenses to these types of cases are limited to such things as a stolen check book or identity theft. Failure to balance the checkbook is not a defense.

District Attorneys and prosecutors in the State of New Mexico work closely with small businesses in the community to prosecute check fraud. Once a person is on notice that they are being prosecuted for a worthless check it is important to immediately address the charges. Though there are few defenses, there are several possible early resolutions to the charges.

These include diversion programs, pre-indictment resolutions, pre-prosecution probation, and other possible resolutions to avoid jail time. In some cases, depending on the circumstances, it may be possible to avoid felony charges altogether. In many others, it is possible to eventually clean up your criminal with a resolution that results in an eventual dismissal.

Diversion Programs offer a very good alternative for those charged. The Diversion program is an alternative for the District Attorney to prosecuting a worthless check case. The essence of Diversion is restitution. In short, the person gets to work out a payment plan and the case will be dismissed by the District Attorney.

Where Diversion is not an option, there may be other options to keep a conviction off a person's criminal record. In all these cases, it is critical to address the problem early. Ignoring the problem, like ignoring the checkbook balance, is not a solution. The further the case moves along, the fewer the options available for resolution.

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

Legal situations like domestic violence or DWI can have far-reaching consequences. Aside from the attorneys fees, court costs, fines and possible jail time, a potential military recruit may be denied enlistment in the armed forces if they are currently dealing with or have been involved in certain legal situations.

The military is not meant to be rehabilitative in nature. Gone are the days when the military was a possible escape from criminal prosecution. Prior to entry into the military, an initial screening process is conducted in an attempt to minimize the likelihood of receiving recruits who are disciplinary problems or who may become security risks. What's more, there are some legal situations, including domestic violence, which may exclude a potential recruit from the ownership and use of firearms. Consequently, the recruit would not be able to perform job functions requiring the use of weaponry.

Military recruiting offices may run background checks on potential recruits, including police and court checks. It is best to disclose any legal situation, past or present, up front. Failure to fully disclose may itself be grounds for denial.

During the interview process, the recruiter will ask about arrests, current or dismissed charges or convictions, as well as probation, incarceration or parole periods. In addition, they will ask about juvenile criminal histories, including proceedings that were either sealed or expunged. They will even ask about traffic violations.

In some cases, a waiting period may be required before a recruit can enlist. In other situations, a waiver can be requested that might permit enlistment despite the potential disqualification. Each applicant is considered on a case by case basis.

Each branch of the armed forces may have slightly different regulations; however, some of the regulations that the U.S. Army follows involve:

• considering an unpaid paid parking ticket a disqualification as a pending charge;

• considering multiple charges for the same event individually;

• requiring a waiver in several situations regardless of how the case was decided, including domestic violence situations and serious criminal misconduct, even when the case was decided in the potential recruit's favor;

• discharging anyone who conceals a legal situation that requires a waiver, considering this "fraudulent enlistment".

In situations where a waiver may be permitted, it is up to the applicant to provide proof that they have overcome the disqualification and that being accepted would be in the best interest of the military. Court documents, evidence of rehabilitation and even letters of recommendation may be required.

There are certain legal disqualifications that cannot be overcome by a waiver. Some of these include intoxication at the time of application, ongoing alcoholism or drug abuse and a history of psychotic disorders. However, recruiters are more than willing to sit down with an applicant and review any potential legal disqualifications. Again, each applicant is considered on a case by case basis.

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