Albuquerque Criminal Lawyer Blog

During the graduation season, many parents are tempted by the constant pleading/nagging of their new graduates to allow the kids to drink at the graduation parties. It seems to be pretty common. However, the criminal penalties are anything but common. In Albuquerque, where the party patrol is always on the beat, the risks simply are not worth it.

Serving minors alcohol is charged as the 4th degree felony under NMSA §60 7B-1E for selling or giving alcoholic beverages to minors. It is typically also charged as contributing to the delinquency of a minor under NMSA §30-6-3, also a 4th degree felony. Each carries felony sentencing. As 4th degree felonies, each count is punishable by up to 18 months in prison and a $5000 fine. In the event that person is charged with both offenses, there is a total maximum exposure of 36 months and $10,000 in fines. Finally, each violation may be charged separately, i.e. one count for each kid present and served alcohol.

A minor is defined as anyone under the age of 21 years of age. Oddly, anyone 18 or over can be charged with contributing to the delinquency of a minor. As a result, it is possible that both the parents, and some of the kids present at the party can be charged as co-conspirators.

Perhaps it is hard for some parents to say no to their kids. Being the cool parent can be very costly. The prosecutors take these cases pretty seriously, and routinely file these charges. The judge and prosecutor both would be particularly unforgiving in cases involving other alcohol related incidents. It takes little imagination to imagine all the possible shenanigans a drunk teen can get into such as fights, sex related offenses, and accidental injury to name a few.

Any of these could create both severe criminal consequences and if that does not get one's attention, the possible civil liability could be catastrophic. For instance, and reasonably foreseeable, one of the drunk teens could get in a drunk driving accident killing his or herself, the passengers, or other innocent drivers. In addition to the civil liability, the parent could then be facing even greater criminal charges and penalties.

Assuming this is not enough to convince your kid that you are making the right choice, try this. Tell him or her if you go down, you're taking him or her with you. And even if it is not your intended result, this may be the result anyway if your kid is 18 or over. Graduation is a time to remember. Let it be for the right reasons.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The consequences for DWI/DUI conviction are severe. For repeat offenders, a conviction results in certain jail time. How much jail time is largely dependent upon the behavior of the DWI/DUI offender following arrest.

One does not have to look far to figure out why the consequences for repeat DWI/DUI offenders are growing in severity. Just today, the Albuquerque Journal had an article listing several tragic DWI/DUI accidents that have occurred since February. Of the 6 DWI/DUI accidents listed, 4 involved deaths of innocent victims. Keep in mind, the article only listed accidents since February of this year. Judges and prosecutors have far longer memories of the many tragic and often fatal DWI/DUI accidents that occur each year in New Mexico. According to the DWI Resource Center, there have been an average of 190 deaths per year from 2000 to 2009 keeping New Mexico in the top 10 across the country for these figures over most of this period.

Neither judges nor prosecutors have much patience for repeat offenders in this environment. As a result, repeat offenders have an uphill battle at sentencing. However, there are several things that can be done to help one's cause when facing this situation.

First, STOP DRINKING. PERIOD. This is not optional. Clients say all the time that they do not have a drinking problem. Trust me when I tell you the judge and prosecutor disagree. A first time DWI/DUI indicates a drinking problem. A subsequent offense indicates a serious problem. The worst thing a repeat offender can do for his or her cause is to walk into court and deny a drinking problem.

The remaining steps all surround the first. It is easy for a defendant to walk into court and tell the judge that he or she has stopped drinking. After all, how is the judge to know any better? Unfortunately for the repeat offender, the presumptions are not on his or her side. Once convicted, there are no more presumptions in your favor. This seems too obvious to say but some believe that it is up to the prosecutor to prove they are lying. Not so, the repeat offender must prove that he or she is not.

The only way to do this is through careful documentation. Therefore, a repeat offender should at a minimum begin Alcoholics Anonymous (AA). Frequent attendance is essential, at least 2 -3 times per week. To document attendance, take a sign in sheet which can be obtained from the court or probation/pretrial services. Some AA facilities may have these on hand since many attendees are there for this very reason.

Beyond AA, a repeat offender should be in alcohol and/or drug counseling. Again, many protest that they do not have a drinking problem. In answer to this, please review the paragraphs above. A good counselor can be very beneficial at sentencing. A good counselor will provide thorough documentation of your problem as well as your progress. In addition, a good counselor will document many other aspects of your life, employment, family, character and general history that could be very helpful in minimizing your jail time. Most important, counseling shows the judge that you are serious about addressing your problem.

This gets back to the initial point of this whole exercise. A second DWI/DUI carries a mandatory 4 days of jail, a third 30 days, a fourth 6 months. After that, it gets much worse. Now for the bad news, these are mandatory minimums and judges across New Mexico are growing increasingly reluctant to allow the mandatory minimums. This is why AA and counseling from the date of arrest, not 3 days before sentencing, is so important. Judges have a great deal of latitude in sentencing between the minimum and maximum. Do yourself a favor and give the judge good reason to lean toward the minimum.

www.CollinsAttorneys.com

The 10th Circuit Court of Appeals ruled that a common drug supplier does not make a conspiracy. In U.S. v. Caldwell, Michael Caldwell was convicted for conspiracy to distribute marijuana with two other individuals based upon the mere presence of a common supplier to Caldwell and another party. The jury determined that the three men had entered into a single a three party conspiracy to distribute at least 100 kilograms of marijuana over a two-year period.

The defendant admitted to a conspiracy with his supplier but denied the conspiracy with respect to the third party. It may sound like an inconsequential rhetorical argument but the finding of the tri-party conspiracy had significant consequences for Caldwell's sentencing. Because of the jury's erroneous finding of a three party conspiracy, the quantity of marijuana involved in the alleged conspiracy pushed Caldwell into a higher sentencing category.

The facts are pretty straightforward. Caldwell had purchased marijuana from Herrera. Caldwell then sold the marijuana to other users. A friend of Caldwell's, Anderson, source had dried up. Caldwell introduced therefore introduced Anderson to Herrera. Anderson then began buying his marijuana from Herrera. Caldwell received no economic benefit for the introduction nor was he involved in the exchanges between Herrera and Anderson other than the initial introduction.

The 5th Circuit Court of Appeals found that no single tri-party conspiracy existed. Instead, the government had shown only the existence of multiple conspiracies. The court stated that it is often difficult to distinguish between a single large conspiracy and several small conspiracies. However, the Court stated that it would not uphold the finding of large scale conspiracy by "piling inference upon inference...The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt."

Citing United States v. Sells (10th Cir. 2007), the Court set forth the following requirements for a finding of a conspiracy:

(1) two or more persons agreed to violate the law, (2) the defendant was aware of the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily became a part of the conspiracy, and (4) the alleged co-conspirators were interdependent.

The pivotal question according to the court was the existence of interdependence of the parties which is present only where the co-conspirators intended to act in concert for their shared and mutual benefit. Citing U.S. v. Evans (10th Cir.1992).

The court boiled the issue down to the question of whether "the mere introduction of a common supplier, made by one drug dealer to another, is sufficient to create a single conspiracy among all the dealers?" The court concluded that it was not.

The finding of a single large scale conspiracy created an erroneous factual basis for Caldwell's sentence. The court should not have included quantities sold by Herrera to Anderson. The case was therefore remanded to district court for resentencing based purely upon the transactions established at trial between Caldwell and Herrera.

www.CollinsAttorneys.com