Albuquerque Criminal Lawyer Blog

The recent New Mexico Court of Appeals of State v. Gurule once again expands the scope of DWI and DUI. The Court made clear that DWI is a strict liability crime meaning no intent is required. The Court also expanded the strict liability of DWI to "impaired to the slightest degree" cases.

The defendant, Bertha Gurule, was suffering from a cold. She stayed home from work going to her to mother's home to be with her mom and sister. Her mother gave her a homebrewed cold remedy which included a shot of bourbon. Ms. Gurule also took some cold medicine. Her sister received a phone call alerting them that a granddaughter was in the hospital. Not realizing that the cold remedy had bourbon or that the cold medicine contained alcohol as many common cold formulas do, Ms. Gurule drove to the hospital. Upon leaving the hospital hours after consumption of the home remedy and the cold medicine, she was stopped and charged with DWI.

There was no breath alcohol score even mentioned in the case suggesting a breath alcohol score below the .08 limits. Ms. Gurule was prosecuted on the "impaired to the slightest degree" standard.

Remarkably, the court determined that DWI, even under the "impaired to the slightest degree" standard, is a strict liability offense. The court made clear that it does not matter whether Ms. Gurule knew that the cold medicine or home remedy contained alcohol. It does not matter that she had no intention of consuming alcohol. And of course under the impaired to the slightest degree standard, it does not matter what her breath or blood alcohol level was at the time of driving.

In this case, there was some liquor involved. However, might it be possible to get a DWI strictly through the use of cold medicine. As the law stands now, sure it is. Recall that drivers are now being convicted of DWI under the same vague and meaningless "impaired to the slightest degree" standard for prescription Ritalin or Adderall, drugs formulated to increase focus and concentration. So was it even necessary to mention the home remedy with bourbon? Why not prosecute drivers for taking cold medicine? After all, many common cold formulas contains alcohol and they can cause drowsiness, as indicated on the label.

House Bill 392 which would have gotten rid of the "impaired to the slightest degree" standard failed to pass for the third year running. As the law now stands, any alcohol, no matter the source and no matter the level, may lead to a DWI conviction. Worse yet is the very long list of prescription drugs that arguably would impair a driver to the "slightest degree." To this list, one would be prudent to add cold medicine.

Hopefully, House Bill 392 or its equivalent will pass next year. To encourage correction of this legal anomaly, you can contact your legislator. In the alternative, don't get sick or get a home based job, and don't have kids, one might get sick as happened in State v. Gurule.

Collins & Collins, P.C.
Albuquerque Attorneys

House Bill 392 has been re-introduced this year. It has been introduced twice in the past with no success. After reading, please contact your legislators to encourage passage of this bill.

The bill does a couple of things. First, it gets rid of the "impaired to the slightest degree" standard for DWI convictions. I have written plenty in the past with the many problems associated with this amazingly vague standard. Suffice it to say, you can toss all you ever believed about the .08 breath alcohol standard. Instead, a driver is impaired if the officer says so whether or not below the limits and it is then the burden of the driver to prove in court at great legal expense that he or she was not impaired.

This brings us to the second part of the bill, and the recent Ron Bell case. The bill states that it is not a crime to take medication in the lawfully prescribed dosage where there is no FDA prohibition or warning against driving while on the prescription medication. One would have assumed that this was always the case. It is not.

Ron Bell was arrested for prescription Adderall. Adderall, like Ritalin, is a commonly prescribed medication for ADD/ADHD both for children and adults. Of note, there are no driving prohibitions while on Ritalin or Adderall. In fact, research shows that the medication improves driving. This makes perfect sense since the medication is prescribed for attention deficit disorder. What does not make sense is to institutionalize distracted driving by discouraging the use of these medications.

But this is exactly what the Ron Bell case suggests. The same impaired to the slightest degree standard applies to prescription drug use. There is no other established standard. In fact, there are no established levels for safe driving for most prescription drugs, including Adderall and Ritalin. Again, it comes down to the officer's judgment. In short, any admission to prescription medication may get you a tour through the criminal justice system.

There is a much glee surrounding Ron Bell's conviction. The press is replete with gloating headlines regarding the high profile lawyer that sues drunk drivers getting convicted for DWI. Once the gloating stops, one might consider his or her own medicine cabinet. One might consider the teenage driver in the family that must take Adderall or Ritalin to function normally.

Now consider the other prescription drugs in your cabinet and what the State might say about those. If the State will argue that a drug like Adderall or Ritalin, scientifically formulated and proven to improve focus, impairs one's driving to the "slightest degree," what about your anti-anxiety or anti-depression medication? Or how about how that allergy medicine that makes you a little bit drowsy (it says so right on the label)?

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

Many mistakenly believe it is in their best interests to refuse the breath alcohol test (breathalyzer) on a New Mexico DWI stop. The fact is that refusal has some pretty serious consequences with little possible trial benefits.

Refusal to take the breathalyzer results in some rather harsh consequences. First, a refusal results in an automatic one year drivers license revocation for a first time DWI under the New Mexico Implied Consent Act. Second, a refusal results in a charge for aggravated DWI which carries mandatory jail time for conviction. The mandatory jail time varies with the number of prior DWI convictions. For a first time DWI offender, an aggravated DWI carries 48 hours mandatory jail. It gets increasingly more severe for subsequent convictions.

So why the misconception about the refusal's benefits at trial? A .08 breath alcohol score results in a presumption of driving while intoxicated which is hard to overcome. A .16 or above is aggravated. Some believe that if there is no breath score, then it is harder to prove driving while intoxicated. This would make much more sense if the standard in New Mexico was not "impaired to the slightest degree." In other words, the true standard for the prosecutor to meet is whether or not alcohol impaired the driver's ability even to the slightest degree. This provision was in fact inserted in the statutes to address those drivers that refuse the breathalyzer. Unfortunately, its use has been significantly broadened and is used now routinely on drivers below .08.

So now the driver who has refused has suffered much more serious consequences. In addition, the standard is impaired to the slightest degree which is a very low standard if any standard at all. The jury is presented with testimony that the driver was in fact drinking which is typically not too hard to prove. The jury is also presented with a defendant driver who refused the breath alcohol test. Jurors who often assume guilt from the outset of trial expecting the defendant to prove his or her innocence now have a fairly easy logical conclusion on which to hang their prejudice. They might and do ask, if he wasn't drunk then why did he refuse the test?

Don't forget that the State still has the field sobriety tests on which to base their arguments. Police officers now often video the field sobriety tests, and this video is crucial evidence in the case. Even without the video, the officers will document each and every misstep on the field sobriety tests. Make no mistake, these tests are a challenge under the best of circumstances. The circumstances are hardly ideal in most DWI stops.

In conclusion, refusing the breathalyzer carries substantial risks with questionable value. Despite the myths, there is no fool proof strategy to beat a DWI charge except to avoid drinking and driving in the first place.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico's Winter DWI Superblitz began yesterday. The Superblitz will run through January 9, 2011. The timing of the Superblitz is no accident. DWI driving along with DWI accidents go up tremendously during the holiday season.

The State hopes to deter drunk driving over the holidays. The anti-DWI campaign will come with significant public exposure and advertising including TV ads, newspapers ads and billboards.

This is not unusual. Operation DWI in New Mexico has been going since 1993. The campaign has been pretty effective at reducing DWI related crashes and fatalities. According the New Mexico DWI Resource Center, alcohol related accidents dropped by over 25% from 1997 to 2006 (from 3884 to 2871). During the same time period, alcohol related accidents involving serious injury or death dropped by over 45% (from 1333 to 703 per year).

There is no data available after 2006 but it appears that the trends have continued in the same direction. Hence, the Superblitz which will last through the entire holiday season. Of course, the state will continue to utilize the 100 Days and Nights of Summer and other operations throughout the year that include 75 to 100 checkpoints throughout the State during the anti-DWI campaigns.

What does this mean for you? It means simply do not drink and drive. Not even a little. Most assume the standard for DWI arrest is a .08 breath alcohol level. This is not the case in New Mexico which instead follows the "impaired to the slightest degree" standard. There have been countless drivers convicted under this standard despite being below, sometimes well below the traditional .08 standard.

As such, if you are stopped at a checkpoint and either admit to drinking of the officer either smells even a hint of alcohol, you will be asked to exit your vehicle for some holiday exercise walking heel to toe, doing nice tight turns, balancing on one leg, and so on. Then of course, there will be the night in jail where you will be sure to keep up that New Year's fasting resolution. Not the way you wanted to burn off the holiday calories.

And that's just the beginning of the DWI process which can end with some pretty serious criminal and civil consequences.

Seriously, Don't Drink and Drive. Not Even a Little!

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

New Mexico takes DWI extremely seriously and for good reason. New Mexico has for years ranked among the national leaders in DWI accidents and fatalities. Unfortunately, many DWI fatalities in New Mexico and other states involve child passengers.

There is a growing trend in New Mexico and other states to charge DWI drivers with child abuse when children are present in the car at the time of the DWI offense. In New Mexico, parents charged with DWI with their children present often find themselves charged with Abandonment or Abuse of a Child, a third degree felony carrying up to 3 years in prison for the first offense.

The law is intended to protect children from the dangers of drunken driving. The law is admirable in its intentions. However, the way the law is enforced can lead to some rather draconian results. For instance, there is a trend across New Mexico, particularly in Albuquerque, to charge drivers with DWI at breath alcohol levels below, often well below .08. Not only are drivers being charged at these levels, they are regularly being convicted. The conviction of DWI at these levels would carry with it possible conviction for Abandonment or Abuse of Child when children were present.

It is impossible to identify any standard in DWI arrests and prosecution in cases involving breath alcohol levels below .08. instead, the prosecutor need only show that the driver's ability to drive was "impaired to the slightest degree." Your guess is as good as mine as to what the this means other than you are impaired if the officer, sometimes right out of the police academy, says you are impaired. This is no standard at all and when New Mexico parents may face felony prosecution for child abuse for a glass of wine or two with dinner, lack of standards is unacceptable.

There was legislation presented in the last legislative session to redress the problems with such a vague standard. Unfortunately, no action was taken on the bill. Worse still until the standard is addressed, families could be torn apart by overly aggressive and misguided enforcement of DWI laws. Many would argue that no alcohol at all is acceptable before driving. Perhaps this is a valid position but it is not the law. The law is meant to deter driving impaired by alcohol.

If New Mexico's intent is to completely prohibit alcohol and driving, then pass a law to that effect. At least then drivers will know that it is against the law to drink even a little and get behind the wheel. What is not acceptable is leaving it at the sole discretion of the officer to decide whether or not you are impaired despite a low breath alcohol level, exposing law abiding citizens to DWI and child abuse charges. The legislature needs to act one way or the other and it needs to hear your voice no matter which side you are on. Contact them now.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

In State v. Toms, the New Mexico Court of Appeals addressed the foundational requirements for admission of breath alcohol score results in a DWI trial. The Court in Toms reiterated the ruling in the 2007 New Mexico Supreme Court case of State v. Martinez. In addition, the Court expanded on Martinez in addressing the proper procedural grounds by which a defendant may attack the foundation of the breath alcohol results.

The Court first stated that calibration of the machine by the officer was not enough. Though calibration of the machine is a measure to insure the accuracy of the breath alcohol score, it is insufficient to establish the foundation for admission of the score into evidence at trial. In addition, as stated in Martinez, the State must prove by a preponderance of the evidence that the machine has been properly certified and the certification is current at the time of the test. The State in short must show that the machine has been properly certified, the certification is current, and the machine was certified by the Scientific Laboratory Division of the Department of Health (SLD).

Failure to fully establish the foundation for admission of the breath alcohol score will render the evidence inadmissible. These foundational requirements are meant to insure the accuracy of the breath alcohol scores and to protect defendants against unreliable or inaccurate tests results. The State argued that the defendant must raise the issue prior to trial. Effectively, the State argued that the defendant was obligated to alert the State to weaknesses in its case prior to trial in essence providing the State with the opportunity to cure the defect.

Fortunately, the Court disagreed. This foundation is the State's responsibility, not the defendant's. The Court expressly expanded on Martinez to address the State's argument. The Court stated that the defendant has no obligation to raise the deficiency in the State's case via pre-trial motion as the trial court and the State had suggested. The Court stated that the state has the burden of laying the foundation for the breath alcohol test results and that the Court would not "require the defense to file a pretrial motion simply to advise the prosecution that it may have a defect in its proof or some problem in establishing the appropriate evidentiary foundation."

DWI is enforced very vigorously in New Mexico for good reason. DWI is a threat to the safety of all of us and our families who drive New Mexico roads. However, on occasion, DWI is perhaps enforced a little too vigorously as was the recently invalidate practice of arresting drivers who were sleeping in their cars, and the continuing practice of arresting and prosecuting drivers at breath alcohol levels below .08. Fortunately, the Court in State v. Tom has not shifted the burden of prosecution to the defendant him or herself by placing the responsibility of foundational elements to the defendant. After all, the defendant should not carry the burden of prosecuting him or herself despite the efficiencies that would come from such a requirement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The presumptive breath alcohol level for driving is .08. A driver who blows over .08 is presumed to be DWI. There are no such levels established for drugs and driving. This issue is becoming more prevalent with increasing trends by Albuquerque and Rio Rancho police to arrest drivers who are on prescription medication.

The problem has made headlines recently with DUI charges against Ron Bell, a well known local Albuquerque attorney. Ron Bell was arrested for the use of prescription methylphenidate, Ritalin, which is commonly used for the treatment of ADHD. In fact, studies show that treatment of ADHD actually reduces driving risks so any policy that would deter ADHD drivers from taking their prescription medications will actually put New Mexico drivers and their families at risk.

The trend toward arresting drivers on prescription medications is problematic for any number of reasons. First, the medications may be necessary for the individual to function, i.e. go to school or work. Second, many of the medications for which drivers are being charged do not impair driving ability at therapeutically prescribed levels. Finally, and most importantly, there are no standards for when an officer can make an arrest. The arrest decision is left entirely up to the officer.

The problem resembles the "impaired to the slightest degree" standard used in DWI to convict drivers at breath alcohol levels well below .08. The "impaired to the slightest degree" standard and the complete lack of standards for prescription drug use leads to some interesting due process issues. So how do you know when a driver is impaired? Arriving at the answer to that is pretty straightforward. In a bench trial without the benefit of a jury the answer is easy. Though, there may be some theatrics and a few procedural protocols, it comes down to the prosecutor and the judge asking the cop what he or she thinks. If the cop says you are impaired, you are impaired unless your attorney can convince the judge otherwise. Juries are much more discriminating. Unfortunately, first time DWI's are not eligible for a jury trial.

There are many that take the position that any alcohol, no matter how little, is too much for driving. There are others that cry that any drugs and driving are unacceptable. Its more than a little ironic that Ron Bell fit into the first group as the self-anointed punisher of drunk drivers and now falls prey to the second. Both those in the first group, like Mr. Bell, and those in the second might want to consider the implications for both due process and their family's safety when getting behind what appears to be a trending policy toward arresting drivers for prescription medication use without the benefit of any standards to protect against wrongful conviction.

Most officers are honest and professional. But even honest officers could have problems here. There simply are no standards forcing officers to err on the side of caution. This may be fine for most endeavors but not criminal justice. The standard for conviction is "beyond a reasonable doubt." How is this standard of proof applied to a crime that has no definition?

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Most in Albuquerque have heard about the recent DWI arrest of well known personal injury attorney Ron Bell. He was arrested and charged with DWI. These charges were dismissed against Bell when the Breath Alcohol score came back at 0.0%. He has now been charged with DUI for the presence of prescription methylphenidate, more commonly known as Ritalin in his blood alcohol results. Methylphenidate is regularly prescribed for attention deficit disorder.

Bell has been charged with DUI despite the fact that his blood levels are within therapeutic ranges on the often abused legal standard of "impaired to the slightest degree." It is not clear why he is being charged. It could be overzealous DUI enforcement, the same zealotry that led to the arrest of drivers sleeping in their cars. It could be related to a need for DUI arrest numbers. It could be related to a fear of a pretty significant personal injury suit against the City of Albuquerque and the Albuquerque Police Department for the wrongful arrest of Ron Bell in the first place.

Why is in important to you? It is important because attention deficit hyperactivity disorder (ADHD) is a major cause of auto accidents in both teenagers and adults. Any trend by Albuquerque police or any other law enforcement agency in New Mexico toward arresting and charging drivers for the use of prescription methylphenidate will place you, your family and all other drivers on New Mexico roads in peril. And for no good reason other than beefing up DUI arrests and conviction statistics.

In fact, an article from the Journal of Safety, published by the National Safety Council and written by a panel of writers including Russell A. Barkley, Ph.D. a leading expert in the field of ADHD, clearly illustrates the dangers of a trend toward DUI arrests and conviction for the therapeutic use of methylphenidate.

The article states the well accepted conclusion that ADHD does cause heightened driving risks in both teens and adults. The article further concludes that control of ADHD through medication such as methylphenidate is necessary to reduce these risks. In fact, the authors go so far as to suggest that employers screen and treat drivers for ADHD to reduce driving risks of their employees.

Clearly, DUI arrests and conviction of drivers for prescription use of methylphenidate will deter the use of these medications for the treatment of ADHD. As a result, there will be an increase in untreated ADHD drivers as drivers will have to choose between proper medication and jail. So once again, overzealous and misguided DWI/DUI enforcement has placed you, your family, and all other drivers in New Mexico at risk.

As much pleasure as some take in seeing a well recognized attorney arrested, including some in the media, you would be well advised to contact your representatives to express your concern for this trend. It is important well beyond whether or not Ron Bell is convicted. It is dangerous public policy that jeopardizes the safety of all those that drive our streets, including you, your family and loved ones.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court expanded on its ruling in State v. Sims in the case of State v. Mailman. Sims addressed the problematic situation that had arisen by overly aggressive DWI/DUI enforcement in the arrest and prosecution of drivers found sleeping in their cars after drinking.

Sims stated that for a DWI arrest in such situations, the driver must have been in actual physical control of the vehicle as evidenced by both control and intent to drive. Sims set forth several factors to be considered in the issues of control and intent which have since been formalized in proposed jury instructions to address sleeping while intoxicated. These factors include:

1) whether the vehicle was running, 2) whether the ignition was in the "on" position, 3) where the key was located, 4) where the driver was located, 5) whether the person was asleep, 6) whether the headlights were on, 7) where the vehicle was stopped, 8) whether the driver had voluntarily pulled off the road, 9) the time of day, 10) the weather conditions, 11) whether the heater or A/C was on, 12) whether the windows were up or down, 13) whether the vehicle was operable, and 14) any reasonable explanations justified by the circumstances.

The Court in Mailman reiterated the finding in Sims stating that intent may not be inferred by control of the vehicle. The court stated that actual physical control requires not only control but intent, suggesting that each be proven independently. The court explicitly overruled State v. Tafoya which involved a conviction of a driver found in an inoperable vehicle that had stalled in the middle of a major street because the court had failed to consider control and intent as set forth in Sims.

In Mailman, the driver was found highly intoxicated in his broken down vehicle in the parking lot of a convenience store. The driver admitted to being intoxicated and admitted to having driven to the store. The State presented two different theories to the jury, 1) he was actually driving while intoxicated, and 2) he was in control of the vehicle while impaired to the slightest degree. The jury found the defendant guilty but it was not clear on which theory the verdict was rendered.

The Supreme Court in Mailman found that though defendant might have legitimately been convicted for actual driving while intoxicated which was basically admitted by defendant, there was insufficient evidence presented by the State for conviction based upon actual physical control under Sims. Because it was not clear on which grounds the conviction rested, the legitimate or illegitimate grounds, the verdict was reversed.

The Court expanded on Sims in holding that actual physical control, control plus intent to drive, may be established by eyewitness testimony of defendant's driving. However, in the absence of eyewitnesses, the State must prove actual physical control as set forth in Sims adding that defendant's own admissions may/should be taken into consideration. In other words, Mr. Mailman dodged a bullet as a result of the prosecutor's failure to settle on one theory or another.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com