Albuquerque Criminal Lawyer Blog

New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

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The New Mexico Supreme Court addressed expert testimony given by police officer in DWI/DUI trials in State v. Marquez. The case involved an Albuquerque police officer who gave testimony regarding the statistical correlations between a suspect's performance on field sobriety tests and the probability of a blood alcohol score over .08.

The defendant's attorney had argued that the officer was not qualified as an expert to testify on statistical probabilities under the U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals. Interestingly, the State conceded that the testimony given by the officer was improperly admitted. Instead, the State argued that the admission of the evidence was harmless because there was sufficient legally admitted evidence for the conviction.

The case of State v. Marquez is interesting because the New Mexico Supreme Court found that the testimony was unnecessary for the conviction. The Court cited New Mexico Uniform Jury Instruction 14-4501 along with the well established New Mexico case law suggesting that the true standard is whether the defendant's ability to drive was impaired to the slightest degree.

The testimony of the officer undoubtedly would have established this without the statistical testimony. The officer testified that she saw the defendant stumble out of a bar, get in his car, almost strike another vehicle as he backed out of his parking space, and then back 60 feet into oncoming traffic on a congested and dangerous street. In addition, the officer testified that the defendant was slow to respond to questions, fumbled with his identification, was slow getting out of his vehicle, had to brace himself against his vehicle for balance and generally performed poorly on the field sobriety tests.

In light of impaired to the slightest degree standard, the statistical evidence was hardly necessary. However, the prosecutor got a little greedy perhaps and solicited the testimony anyway over the objection of the defense attorney. Basically, the officer gave testimony on statistical studies suggesting that poor performance on the field sobriety tests correlates to a high probability that the defendant's breath score exceeded the .08 limit.

The Court recognized that because of the impaired to the slightest degree standard, the breath alcohol score is not necessary for a DWI/DUI conviction in New Mexico. The Court further recognized that it is common knowledge that a breath score of over .08 is an indication of impairment. Thus, the testimony of the Albuquerque police officer, though unnecessary for a conviction, could have confused and misled the jury. In short, the testimony may have distracted the jury from its role of weighing properly admitted evidence by undue attention to the wrongfully admitted statistical evidence. In essence, the statistical evidence improperly undermined the credibility of the defendant.

Because the evidence was improperly admitted and could have confused or distracted the jury, the defendant's DWI conviction was reversed. The case was remanded for a new trial. In light of the evidence available to the State, and the Court's ruling that the breath alcohol score is unnecessary, the outcome of the new trial is likely to be the same as the first.

The case is somewhat paradoxical that the Court further restricts the bounds of admissible DWI evidence while at the same time reiterating its position that such evidence is unnecessary anyway. However, the case should prove important in cases where the evidence of intoxication is not so overwhelming as was the case here.

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A case in Ohio's Supreme Court recently set forth a framework for protection against the unlawful search & seizure of a suspect's cell phone. The case hopefully signifies a legal trend that should will across the country, including Albuquerque and the remainder of New Mexico.

The case of State v. Antwuan Smith established a warrant requirement prior to the search of person's cell phone. This marks the first time that the Supreme Court of any state has addressed this issue.

It is well established that searches conducted without a warrant are presumed unreasonable. There are exceptions related to officer safety and preservation of evidence which allow the officer to search the area within the arrestee's immediate control. If there is no issue of officer safety or preservation of evidence, then the exception no longer applies. It is equally well established that an officer may search any containers or articles on the defendant' person such as purses. Law enforcement have attempted to equate a person's cell phone to a purse or in the alternative to argue that search of a cell phone is necessary for the preservation of evidence. The Supreme Court of Ohio has refuted these arguments.

The Court's analysis rested upon the classification of a cell phone. A 5th Circuit Court of Appeals case analogized a cell phone to a closed container in the possession of the accused. However, this ruling partly arose as a result of the defendant's legal theory which in part conceded the analogy. The United States District Court for Northern California suppressed the warrantless search of a cell phone. The court reasoned that cell phones are far more than communication devices. Instead, they store immense volumes of personal information and the court said they were more akin to laptop computers which have far greater privacy protections than do purses.

The Ohio court took the latter position. As a result, the evidence seized from the warrantless search of the cell phone was ordered suppressed. The court's ruling recognized that the defendant's phone was not a smart phone but rather a less sophisticated model with phone, texting and camera capabilities.

The Ohio court stated that the 4th Amendment serves to protect the reasonable and justifiable expectations of privacy. The court found that citizens have reasonable expectation of the privacy of their cell phones. Moreover, there is no issue of officer safety or preservation of evidence that would suggest a warrantless search of a cell phone.

The law often trails behind the development of technology. The Ohio Supreme Court serves notice to law enforcement its own state as well those in other states that the warrantless search of cell phone which has become routine in criminal investigations will likely be challenged under the 4th Amendment. The issue is likely to become even more prevalent as many individuals now possess a variety of devices such as I-Pods, flash drives, and other devices capable of voluminous data storage.

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The United States Supreme Court finds that the 6th Amendment right to confrontation requires that an analyst who tested drugs in the lab must testify in court to get those lab results entered into evidence. This important case will impact both drug cases and DWI/DUI cases in Albuquerque and throughout New Mexico.

The United States Supreme Court case of Melendez-Diaz v. Massachusetts involved the introduction of evidence by the prosecution of laboratory certificates from the state laboratory regarding cocaine connected to the defendant. The analyst that conducted the testing of the cocaine was not present at trial.

The defendant objected to the admission of the lab certificate without in-court testimony by the lab analyst. The defendant argued that the practice was a violation of the 6th Amendment confrontation clause as set forth in the 2004 Supreme Court case Crawford v. Washington.

The United States Supreme Court in Melendez-Diaz v. Massachusetts agreed that the practice of admitting lab certificates in lieu of or in the absence of foundational testimony was a violation of the confrontation clause as set forth in Crawford.

The court rejected the prosecution's arguments that these analyst were not accusatory witnesses. The court stated that there was no exemption from the confrontation clause for those witnesses testifying to facts other those observed at the crime scene. The court found any witness who offers his testimony is subject to the confrontation clause.

The court also refused the prosecution's argument that these certificates are excluded from the hearsay rules as official business record. Likewise, the Court refused the argument that these lab analysts are neutral and unbiased simply applying scientific methods to the substance in question. Finally, the court stated that it was immaterial that the defendant himself could have subpoenaed the analyst to court holding that it was the State's burden to bring their witnesses to court for foundational purposes.

The Melendez case could have significant impact on cases throughout the State of New Mexico. It appears that the ruling will cover the admission of lab results from New Mexico's scientific lab division in both drug cases and DWI/DUI cases. The cases are winding their way through the New Mexico courts now as the Courts here attempt to deal with the Melendez-Diaz rulings.

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The recent New Mexico Supreme Court case of State v. Joshua Garcia makes clear that Article II, Section 10 of New Mexico's Constitution extends greater protection from illegal search and seizure than that set forth in the 1991United States Supreme Court case of California v. Hodari D.

State v. Garcia involved a domestic violence call whereby the caller indicated that she wanted an individual named Joshua Garcia removed from her home. Upon responding to the call, the officer saw a man walking across the street near the caller's address. The officer immediately flashed his spot light on the unidentified man and told the man to stop. The officer had no prior knowledge of the identification of the defendant. Garcia continued walking past the patrol car and which point the officer again instructed him to stop. Garcia ignored the instructions of the officer and continued walking. The officer sprayed Garcia twice with pepper spray. As Garcia continued walking, the officer saw something fall from his pocket at which time the officer tackled and handcuffed Garcia. The article that fell from Garcia's pocket was identified as crack cocaine.

Garcia was charged which possession of crack cocaine. The question that arose was whether the evidence of crack cocaine should be excluded from evidence as the fruit of an illegal search and seizure by the officer. The District Court refused to suppress the evidence under the "fruit of the poisonous tree" doctrine. Garcia pled guilty to the charges reserving his right to challenge the court's suppression ruling.

The Court followed the ruling set forth in the 1997 New Mexico Supreme Court case of State v. Gomez. State v. Gomez explicitly recognized that New Mexico's constitutional protections could at times exceed the protections afforded under federal law. Upon applying the law set forth in Gomez, the Court found in Garcia that New Mexico's Constitution, Article II, Section 10 provided greater protection than that set forth in Hodari D.

In Hodari D, officers drove up on a group of youths huddled together. Upon seeing the patrol unit, the youth took flight. The officers pursued the youth on foot. During the pursuit, one of the youth discarded a rock of crack cocaine. The officer tackled the youth and recovered the discarded crack. The United States Supreme Court found that the youth was not seized at the time the crack was discarded. The Court determined that a seizure is defined by the reaction of the suspect. Because the suspect fled, there was no seizure despite the fact that the pursuit lacked any reasonable basis from its inception. Because there was no seizure, the evidence was not illegally seized.

The New Mexico Court in Garcia reverted back to the law as previously set forth by the United States Supreme Court in the 1980 case of U.S. v. Mendenhall. Mendenhall stated that a person is seized when a reasonable person under the circumstance would not feel free to leave. Utilizing the Mendenhall standard, and the protections set forth in Article II, Section 10, the Court found that Joshua Garcia was illegally seized at the moment the officer shown his spot on him and commanded him to stop. Because there was no reasonable suspicion for the stop, the search and seizure that ensued was illegal, and the crack cocaine should have been excluded from evidence.

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The 4th Amendment to the United States Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment protections against unlawful search and seizure rests on the right to privacy proving protection against unlawful and abusive law enforcement practices that would invade that right to privacy. The protections of the 4th Amendment are broad and complex. Entire books are written on the 4th Amendment, and there are legal scholars that spend much of their careers studying and writing about the 4th Amendment. Many of the most important cases in criminal law and criminal procedure derive from the 4th Amendment as do the rights of criminal defendants.

The importance of the protections afforded under the 4th Amendment cannot be over-stated. The 4th Amendment protects at every stage of a criminal case from the initial stop by the officer, to the search of the suspect's vehicle, home, property or other belongings both before, during or after the arrest, and of course to the arrest itself.

The 4th Amendment provides protection in all variety of encounters with law enforcement. The protections stretch from the petty shoplifting offense, to DWI/DUI stops and investigations to the most serious felony offenses. Violations of the 4th Amendment have serious consequences including the exclusion of evidence seized illegally. Often, the exclusion of illegally seized evidence will result in the dismissal of the charges in whole or in part. Should the prosecutor refuse to dismiss based upon the lack of evidence, the exclusion of the illegally seized evidence can be an insurmountable obstacle for the prosecution at trial.

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Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest. The recent New Mexico Court of Appeals decision in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls. Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant's phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant's attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant's Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody. The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

The lesson here is clear: Stop Talking and Hang Up the Phone. It is exceedingly unwise to voluntarily give incriminating statements to a police officer over the phone particularly when you initiated the call. Miranda will not protect you here.

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington. The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.