Albuquerque Criminal Lawyer Blog

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

Once a criminal investigation has been concluded, and a felony case has been referred to the prosecutor, the accused will receive a letter indicating that he or she is the target of a grand jury investigation. The letter is called a target letter. The target letter will indicate the date and time of the grand jury hearing.

In the past, the grand jury has been a mere procedural formality prior to the filing of felony charges. It was said that the grand jury would indict a ham sandwich. The prosecutor was able to pick and choose evidence as it saw fit often neglecting to present clearly and readily available exculpatory evidence. There were few if any procedural or evidentiary protections to insure a balanced presentation of the evidence. In addition, the defense had few opportunities to present a defense at this stage. Because of the low standard for indictment of the lack of any procedural or evidentiary protections for the accused, and the virtual certainty of an indictment, the grand jury hearing often went uncontested. Unfortunately, many innocent people were indicted on pretty flimsy evidence. Though these cases might later be dismissed for lack of evidence, the damage to the accused was already done once the charges were filed, and their lives and their reputations were turned upside down.

The Supreme Court of New Mexico addressed the injustice of the grand jury procedure in Jones v. Murdoch (NM 2009). The Court recognized the injustice of the grand jury procedure very succinctly when it stated:

"To allow the prosecutor's screening function to proceed unchecked pre-indictment invites post-indictment inefficiencies into the system. And to assume that all damage flowing from an unjustified indictment can be cured post-indictment is to ignore the lasting injury that even an unsuccessful indictment can inflict."

To correct the procedural imbalance of the grand jury and the enormous harm of a baseless indictment, the Court expanded the accused target's right to have exculpatory evidence presented to the grand jury. To be admissible, the evidence must simply be "lawful, competent, and relevant" and must tend to prove the indictment is unjustified.

There are numerous requirements on the criminal defense attorney to take advantage of the new grand jury defense opportunities now available as a result of Jones v. Murdoch. The challenges at grand jury are still significant. In fact, despite the new protections of Jones v. Murdoch, innocent people will continue to be indicted along with the ham sandwiches. However, there will be many more victories at this stage than in the past. And with each success, it is hoped prosecutors throughout New Mexico will be less inclined to abusive grand jury practices and clearly baseless grand jury proceedings that have been the rule in the past.

Parrish Collins
Collins & Collins, P.C.
Albuquerque, New Mexico
www.collinsattorneys.com

Often times, if you are suspected of a crime, a criminal investigation will begin. In some cases, particularly in cases of economic crimes, the case will not be referred to the prosecutor until the investigation has been completed. These investigations can be very lengthy so there is time to act prior to the referral to the prosecutor.

In the case where a criminal investigation is started against you, a law enforcement investigator will typically contact you for purposes of an interview. The request may come by a phone call or even a letter. This situation can be very stressful. It can also be hazardous for your rights. You should proceed very cautiously in this situation, and you should immediately contact an attorney.

You do not want to ignore the investigator if there is possible resolution of the case prior to referral to the prosecutor. This could result in an immediate referral of the case to the prosecutor. Once the case gets to the prosecutor, you have an entirely new set of problems. If there is any chance of stopping the referral of the case to the prosecutor, then you should consider hiring an attorney for purposes of working out a resolution of the case with the investigator.

It is typically unwise to attempt this on your own since during the course of the "negotiations", you may make harmful admissions that will later be used against you should the case be referred to the prosecutor. You should understand that these cases are typically going on the prosecutor and the investigation is purely for purposes of building the case against you. You do not want to contribute to the evidence against you by making ill-advised statements to the investigator.

If you are contacted by an investigator concerning possible criminal charges against you, you would be wise to contact an attorney. If you cannot afford an attorney, then you should politely decline to give a statement to the investigator. You should make it clear to the investigator that you do not want to speak with the investigator and make it clear that any statements if any will be made through an attorney which eventually you will have you private counsel or the public defender's office.

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

When the police contact you for an interview, you need to understand the seriousness of your situation. The situation can be extremely stressful even when you know you are innocent of any wrongdoing. Many innocent people are charged with crimes every day. Those that have committed a criminal act will often make their situation worse through their statements. Worse yet, the accused whether guiltily or innocent will often provide the pivotal evidence against them.

Police investigators are masterful interviewers. Their sole purpose is to build full-proof criminal cases for referral to the district attorney. They are judged by their success in achieving this goal. Most take great pride in their effectiveness in building cases. Their success often turns on their interviewing skills, and their ability to extract confessions or other damaging statements against the accused.

The investigators will use a variety of interviewing or questioning tactics to get you to make damaging statements. These tactics are beyond the scope of this article but suffice it to say that speaking to the police without an attorney is rarely if ever in your best interests. You may make statements that you could not possibly anticipate could be used against you.

You do not have to talk to the police. You have the right to remain silent. Your 5th Amendment right against self-incriminations is among the most important rights that you have in criminal case. This right applies at every state of a criminal case from the criminal investigation all the way through trial. You should exercise this right.

The only thing that can hurt you more than giving damaging statements is giving false statements. Giving false statements to an investigator is itself a very serious crime punishable by imprisonment. A false statement may even be made inadvertently and these too may make a bad situation much much worse. Exercise your 5th Amendment right and decline to give a statement. To do otherwise poses too many risks.

Not surprisingly, people accused or suspected of a crime, believe that cooperating with the police will somehow help their case. Police and prosecutors pursue nice folks just as aggressively as they do the rude. Do not make the mistake of believing the investigator when he or she tells you that they are there to help clear things up, and that they can help you if you just make their job easier. You soon feel the acute sense of betrayal when you find the cop is not your friend, and is instead sitting before the jury testifying against you. Much of the basis of this testimony will be taken from your own statements.

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