FAQ’s – Criminal Defense

If you have been charged with a crime, you probably have many questions.  The criminal justice system can be quite intimidating and confusing to most.  Though it cannot alleviate all the stress and anxiety of the situation, knowing what to expect and how the system works can provide some level of comfort.

This section deals with more generalized but frequently asked questions related to criminal charges.  These questions typically apply to a wide range of charges from misdemeanor to felony charges.  We have also attempted to provide more specific FAQ sections for various types of charges as well as other more specific areas of the criminal justice process.

For instance, we have separate sections for the following:

We will adding more FAQ sections in the coming months.  If you do not find a helpful discussion here, you might find information that is more relevant to your situation on one of the other sections or at our New Mexico Criminal Law Blog.

Please keep in mind that these FAQ sections are simply generalized discussions of the topics addressed.  They cannot fully address individualized situations.  Nor should they be relied upon as legal advice.

Criminal cases are complex.  They require the guidance of an experienced criminal law attorney.  This is reflected in the 6th Amendment Right to Counsel under the United States Constitution.  It also explains the existence of the right to a free attorney if you cannot afford one through the Public Defender.

In short, if you are faced with criminal charges, contact an attorney immediately.  If you cannot afford a private attorney, there are many highly experienced and capable attorneys in the New Mexico Public Defenders Office.

Having said all that, we hope these pages do provide some helpful information and most of all we wish you the best in what is no doubt a very difficult time.

Can I Ask For a Lawyer When I Am Being Questioned by the Police?

Miranda rights are useless unless you stop talking and request an attorney.
Miranda rights are useless unless you stop talking. So request an attorney and then stop talking!

Many people are very familiar with the Miranda right to counsel.  Watch any popular television show and chances are that you will see an accused invoke his or her right to counsel, under the Fifth Amendment to the United States Constitution.

The issue of Miranda warnings and 5th Amendment Right to Counsel can get complicated.  It is important to seek the guidance of an experienced criminal defense attorney right away if you have become the target of a criminal investigation.

First and foremost, you should understand that the key to Miranda rights is silence.  If you fail to exercise the right to remain silent, then Miranda will not protect you.

All Questioning Must Cease Once an Attorney is Requested

If you are in police custody and you are being questioned, you can at any time prior or during the interrogation ask for counsel.  Once you ask, the questioning must cease until you are able to speak with an attorney.  Remember, do not be ambiguous about your request for counsel, stating merely that you think you should have counsel may not be enough to prompt the officers to stop the interrogation.

You Can Waive Your Right To Counsel If You Do Not Remain Silent

You can request an attorney at any time. Questioning must cease unless you then decide to keep talking on your own.

It is understandable that you may be afraid and not thinking clearly when you are being interrogated.  It may also take a considerable amount of time for you to have a hired attorney speak with you or have a state attorney be appointed for you.

In that time frame, it is quite possible that the anxiety and fear may cause you to ask questions yourself.  If you ask questions yourself, even as simple as “what is going to happen to me now?”  You may conceivably waive your right to counsel.

Miranda Applies Only to Custodial Interrogation

Miranda applies to custodial interrogations only. Essentially, custodial interrogation means that you are not free to leave. 

Your Fifth Amendment right to counsel only applies to a custodial interrogation.  This gives rise to the obvious question of what is a custodial interrogation?  The definition can be somewhat confusing but the basics are pretty clear.

This means that you were already arrested either at the scene or by warrant and the investigating officers are questioning you about the alleged crime.  You have a right to have your attorney present during the interrogation, not just to speak with the attorney.  So make sure that you do not answer any questions until you consult with your attorney, and the attorney is present.

A Stop Is Not Necessarily a Custodial Interrogation

A simple stop is not a custodial interrogation. However, it may quickly turn into one.

In many instances, you may be confused as to what is a custodial interrogation.  For instance, if you are stopped for a traffic infraction, or if you are approached by a police officer on the street, and the officer asks for you to identify yourself, that is not a custodial interrogation.

However, the stop can turn into a custodial investigation if you are not free to leave.  Likewise, it may turn into a custodial interrogation if you do not believe you are free to leave. As you might imagine, this issue can be hotly disputed on both sides.

Request an Attorney If the Answers May Incriminate You (or Even if they Won’t)

You should request an attorney immediately if you are being questioned about a crime and you may be the target of the investigation.  You should request an attorney if the answers may incriminate you.

Perhaps just as importantly, you should request an attorney if you are not sure.  The friendly police officer is there to investigate a crime and prosecute.  He is not your friend.  Rest assured, the friendly conversation you are having may and will be used against you if it can.

So stop talking and request an attorney if there is any possibility, however remote, that you may be the target of the investigation.

Seek Experienced Criminal Defense Counsel

Once you have requested an attorney, it is important to seek the advice of an attorney.  Simply ignoring the problem is generally not a good idea.

Specifically, there are often opportunities for heading off the investigation against you.  In their words, citizens are wrongfully charged far too frequently.  It is far better to avoid the charges to begin with than to try to deal with them after the fact.

The attorneys at Collins & Collins, P.C., have extensive experience in representing clients in criminal matters.  This includes all phases from the investigation to grand jury to criminal trial.  We can help.

What are Conditions of Release?

One of the first things that will happen when you have been charged with a crime is that the judge will set conditions of release. These conditions are requirements that the judge will set for you to stay in the community. In other words, you must abide by these conditions or you will be taken into custody until your case has been concluded.

The conditions of release are usually set at the bail hearing. However, they will be set even in those cases where no bail is set. In other words, even if you are released on your own recognizance, the conditions of release will be set. Moreover, even with relatively minor charges, violations of the conditions of release are taken very seriously.

The conditions themselves will vary depending upon the nature and seriousness of the charges. They will often vary and increase in severity with repeat offenses.

There are a Number of Standard Conditions Issued in Almost Every Criminal Case

There are some fairly standard conditions that are set in almost every criminal case. These include:

  1. No illegal drugs or alcohol,
  2. No violations of the law,
  3. No contact with the victim,
  4. No weapons,
  5. Stay in contact with your attorney,
  6. Don’t miss court dates.

There may also be restrictions on travel, prohibitions on returning to the scene of the incident, court ordered counseling, random drug and alcohol testing, regular reporting to probation, court ordered drug and alcohol abuse assessments and counseling and so on.

In some cases, a defendant may be ordered into pretrial services. This is tantamount to very serious probation. In short, pretrial services can require weekly or even daily meetings with a probation officer. In all cases of conditions of release, you can be on a pretty short leash. In pretrial services, you are pretty much under constant supervision.

Some Conditions May be Negotiable Depending on the Nature of the Criminal Charges

Depending on the nature and seriousness of the charges, your attorney may be able to avoid some restrictions. For instance, travel restrictions are often waived for work and family travel. There are cases where firearm restrictions will be waived for employment and sometimes even for hunting. The leniency of the judge will depend on the charges. For instance, the firearm restrictions are not likely to be waived when the charges include any kind of allegations of violence—including domestic violence.

Again, the thing to mostly keep in mind is that your release from jail is conditioned on abiding by these conditions. If you do violate, you may be jailed while your case is pending. Because criminal cases can take quite some time to conclude, this could result in very significant jail time even if you are ultimately acquitted of the charges.

Inadvertent Violations are Still Violations So Understand Your Conditions of Release

It is very important that you understand the conditions of release. If you are unsure, err on the side of caution and talk with your attorney if you are at all confused. The judge will not care much that you didn’t understand the conditions. Your understanding is presumed and the burden is on you to understand the conditions.

Finally, keep in mind that judges are individuals and they react differently. There are some judges that will not tolerate even a single technical violation. A judge’s tolerance may depend on the kind of day the judge is having. It is best to assume that you will have a very strict judge having a very bad day. To assume otherwise may result in very unpleasant outcome to your hearing on violations of your conditions of release.

How do I get someone out of jail?

In most New Mexico criminal cases, including both felony and the most common misdemeanor cases of DWI and domestic violence, bail will be set for the release of the defendant.  There are a couple of ways to get the person out of jail.

Cash Only Bail 

On occasion, cash only bail is set.  This means that the full cash bond must be paid in order to get the defendant out of jail.  In these cases, the bail must be paid to the court in full prior to release.

Once the case is over, assuming the defendant has showed for all hearings, the bond is returned in full.  If the defendant misses hearings, the court may charge warrant fees depleting the bond.  If the defendant skips, then the bond is forfeited completely.

In Albuquerque, if you wish to post a cash bond on your own, you can do so through customer service at the Albuquerque Metropolitan Court or the Criminal Division of the Second Judicial District Court.  Metro Court has a customer service window as well that is open 24/7 where you can post bond.  There is no customer service window at district court so bond must be posted during business hours.

Cash or Surety Bail

In cases involving cash or surety bail, the defendant can be released upon payment of the full cash bail or the posting of a bond by a bail bondsman.  The bail bond route is the route that most will take for a couple of reasons.

Advantages of Using a Bail Bondsman

There are several advantages to using a bail bondsman.  First, in order to obtain release, you need only post 10% of the cash bail.  For many, this is necessary due to the difficulty of raising the full cash bail.

Another advantage to using a bondsman is that the bondsman will take care of all the tasks necessary for getting the defendant out of jail.  Once you have paid the bondsman and filled out the necessary paperwork, the bondsman will take over insuring the proper release of the defendant.

Finally, the only money at stake for you when using a bail bondsman is the 10% deposit.  The bondsman then assumes the risk of the defendant not showing for court.  Most defendants do show for court but a no-show is a risk and when cash bond is paid, you will bear the full risk of the defendant’s no-show for court.

Disadvantages of Using a Bail Bondsman

The primary disadvantage is the cost of using a bail bondsman.  As noted, the fee for services is usually 10%.  On occasion, depending upon the bondsman, the charges, the financial situation of the defendant, the criminal history of the defendant and other factors the bondsman may deem relevant, the bail bondsman may charge less than 10%.

Keep in mind that the 10% fee is not refundable.  Some folks for some reason expect to get a refund when the case is over.

As discussed above, the fee is charged because the bondsman has assumed the risk of the defendant not showing for court.  It is not returned because the defendant shows.  Likewise, no additional fees are charged if the defendant doesn’t show.

Payment of Cash Bond

Assuming you decide to pay the cash bond in full, you must pay the bond directly to the court.  The bond can be paid by cash or credit card.  Checks are not accepted.

For Albuquerque Metropolitan Court, the bond can be paid at customer service in the Metro Court lobby or at the customer service window located on the south end of the building on Lomas.  The customer service window is open 24/7.

For the Second Judicial District Court in Albuquerque, the same process is followed.  However, there is no customer service window at district court. The bond must be paid during business hours through the Criminal Division in the Court Clerk’s office.

Once bond is posted, the process for release can take hours (sometimes many hours)  for the paperwork to be processed through the jail.  Once the defendant is released, you can pick the defendant up at the Bernalillo County Metropolitan Detention Center.  If the defendant is not picked up, the jail will transport the defendant downtown with other inmates where they are released.

Can I Change the Conditions of Release (and if so, How)?

If you have been charged with a crime in New Mexico, then you most likely have conditions of release. Some of these conditions are non-negotiable. Depending on the nature and severity of the charges against you, others might be negotiable. So the first question is can you change the conditions of release? If so, the how becomes important and this is what we will address here.

Deviations from Standard Conditions of Release Best Handled Early

To change the conditions of release, your attorney will need to request that the judge waive the particular condition or provide limited exceptions to the condition. This would best be handled at the first appearance or arraignment. However, it can be done later in case you did not have an attorney at the first appearance or arraignment.

In those cases where you do not have an attorney, it is possible to make the request yourself. However, it is generally necessary to get the prosecutor’s approval before a judge will allow it. It is rarely a good idea to speak with a prosecutor directly. You should have an attorney do this for any number of reasons, which need not be addressed here. In fact, you do not have to have an attorney in any case, but you have a right to one and you should exercise that right.

Motion to Modify Conditions of Release May be Necessary

If the changes have not been made at the first appearance or arraignment, then your attorney must file a motion to modify the conditions of release. Again, these changes require the judge’s approval, which generally requires a  good reason for such a change.

Some changes are a little easier to change than others. The most common needed changes are the travel restrictions. Conditions of release will often prohibit travel outside the county. This condition will often severely interfere with employment and other family duties. More often than not, if your attorney can show travel is necessary to employment or other family duties, the change will be allowed.

The judge can limit travel outside the county for those specific purposes.  Keep in mind that the modification applies only to those exceptions stated in the modification of conditions of release. It is therefore important to address all possible situations where travel will be necessary if the judge does set limits on the waiver of the travel conditions.

The Alleged Victim May Have to Appear in Court for a Change of Conditions

There are cases where neither the judge nor the prosecutor will agree, absent agreement by the alleged victim. This is the case in domestic violence cases where the parties would like to lift the no-contact order and the prohibition against returning to the scene of the incident (usually the home).

In order for the prosecutor or the judge to approve of such a change, the alleged victim must show up in court. The judge and the prosecutor will question the alleged victim on the safety of such a change. The alleged victim must ask for the change and state that such a change will not result in any danger to household members.

The alleged victim must often give a good reason for the change. The reasons generally include financial hardship and issues regarding care of the children. The judge can refuse the modification. This is not unusual particularly where there is a history of domestic violence in the home.

Some Conditions Cannot be Changed

Finally, there are a number of conditions that will not be waived such as the prohibition on the use of drugs and alcohol, violations of law, and with very few exceptions, the possession of firearms. The restriction on firearms may be waived when the firearm is necessary for employment. However, there is no guarantee that the judge will allow it even then. Whether the judge will grant it will depend on the judge and again, the nature and severity of your charges.

Many times, the conditions of release will be set before you ever meet with an attorney. It is extremely important that you let the attorney know of the need for a modification. Again, it is best to do this at the first appearance or arraignment. If it is not done then, it will require the filing of a motion. A hearing on such a motion may be many weeks after the motion is filed. Until the motion is granted and the judge enters an order, all conditions are fully effective and violation can mean immediate jail time.

How is Bail Set?

Bail is used to guarantee, to the degree possible, that the defendant will show for all court hearings. The level of bail will depend on a number of considerations.

Bail will typically be set at the First Appearance.  Along with bail, assuming it is granted, the court will also set conditions of release.

Bail is Based on Flight Risk and Danger to the Community

First and foremost, these considerations are focused on the flight risk of the defendant or danger to the community. Flight risk is what it sounds like, the risks of the defendant taking off and not showing up for hearings. Danger to the community is also what it sounds like and will consider the seriousness of the crime, the character of the defendant, and the criminal history of the defendant among other considerations.

In consideration of flight risks, the court will consider a number of factors. The court will first consider whether the defendant has a history of fleeing or otherwise not showing up for court. If the defendant has fled in the past, the court will likely deny bail. In addition, if the defendant has a history of missing hearings, intentional or otherwise, the court will also take this into consideration.

The court will also consider whether the defendant has anything in the community keeping him or her there. The court will look at ties to the community such as family, home ownership, employment and other considerations that make it unlikely that the defendant would flee.

This will take into consideration the type and seriousness of the crime. This consideration addresses both the motivation to flee as well as dangerousness to the community.

Court May Deny Bail on Basis of Flight Risk or Danger to Community

In cases involving very serious crimes, the court may deny bail. The court may determine that the flight risk is too great or it may instead determine that the dangerousness to the community is too great. The court is not obligated to allow bail and denial of bail is not entirely uncommon.

Under the 8th Amendment, the court cannot unfairly deny bail nor can the court set arbitrarily high bail. It is up the state (i.e. prosecutor) to show to the court that the defendant is a flight risk or a danger to the community.

Burden on State but Burden Lower than Trial Burden

However, the standard is not the same standard of proof as necessary at trial. The standard, in other words, is not ”beyond a reasonable doubt.” And the standard will differ depending upon whether the issue relates to dangerousness to the community or to flight risk.

Under dangerousness to the community, the state must show by “clear and convincing evidence” that the defendant is a danger to the community. It might not sound like much but there is actually a significant difference between the two burdens.

The burden is still lower for flight risk. In consideration of flight risk, the state must only show flight risk by a preponderance of the evidence. This is a significantly less burdensome level of proof than either beyond a reasonable doubt or clear and convincing evidence.

Be Prepared to Address both Flight Risk and Danger to Community

In any event, it is important to be prepared for the bail hearing. It would be best to err on the side of caution and assume that the state will allege that you are either a flight risk or a danger to the community. Preparation will be key to both the setting of bail as well as a fair and rational bail amount.

How Long Does a Conviction Stay on Your Record?

This question comes up all the time.  It usually comes up well after the conviction when the person is facing issues with employment so this will be the focus of the discussion.

The short and unfortunate answer to this question is that a conviction with extremely rare exceptions stays on your record forever.

This answer applies to all criminal convictions from the most innocuous petty misdemeanor to the most serious felonies.  This can have long-lasting consequences for those with a criminal history.  Again, the most common issues related to employment.

Certain criminal offenses may disqualify you from certain kinds of employment.  Some employers might simply take a position that they do not hire anyone with any kind of criminal record.  In New Mexico, one issue that arises repeatedly due to the government labs, military bases and other sensitive government facilities is the inability to get required security clearances.

If you are in this position, your first call should be to an employment lawyer.  In fact, you would probably want to talk to an employment lawyer versed in these types of issues well before any applications for employment or security clearances.  There are many reasons for this.  First, and foremost, failure to disclose on governmental application may be a crime itself.  Second, a failure to fully disclose, even if not a crime, may be grounds for later termination.

Unfortunately, we do not handle employment law matters.  There are many capable attorneys throughout New Mexico that do.  If you are facing a situation where a past criminal charge is affecting your employment, then you should consult with an attorney immediately.

As mentioned in the opening paragraph, there are very rare exceptions where it is possible to clear an old criminal charge.   One such rare instance would entail an expungement of the conviction and the criminal charges.   Expungements are extremely difficult to get in New Mexico.  It is perhaps worth exploring if you have the money to pay an attorney to look into it.  However, you should understand that it is a long shot at best.

The other perhaps even rarer possibility is having the record sealed.  This is typically reserved only for juvenile offenses.  It would be near impossible to get the record sealed without first getting an expungement which again is extremely difficult itself.  Even with an expungement, it is not necessarily the case that the record would be sealed.

In short, a criminal conviction will most likely stay on your record forever.  If you have a criminal record, it might be worth speaking with an attorney about possible expungement just in case your situation is the rare exception.  Though this might give you some level of comfort in knowing, you should be prepared for the bad news.

Because the cases are so difficult to win and the outcome is usually very disappointing for the client, we do not handle these types of matters.  Instead, we refer them out to someone that will take them with the understanding that it is not inexpensive and the outcome is likely to be anything but satisfying.

Additional Reading:

How Do I Prepare for My Bail Hearing?

At your bail hearing, the judge will consider a number of factors to decide whether to grant you bail and how high to set your bond. The main considerations are the seriousness of the charge against you, past criminal convictions, prior failures to appear, and whether you are on parole or probation.
Ties to the Community Important in Bail Decisions
 The judge has access to the files containing these facts, but does not likely know about your employment status, community ties, family, or personal history. Your Albuquerque criminal defense lawyer will want to emphasize these things to show what an upstanding citizen you are. A criminal history does not necessarily disqualify you from bail, and could even help—for example, if you were granted bail previously and showed up at court as required.
 Information That Should be Passed on to Your Criminal Defense Attorney
 Here are some questions your Albuquerque criminal defense lawyer is likely to ask when helping you prepare for your bail hearing.  You should have this information available at the very first meeting with your criminal attorney.  The point of this information is to illustrate your character and your ties to the community that minimize flight risks.  In other words, you will show up for court.
About Your Family
  • Are you married?
  • For how long?
  • Do you have any children who rely on you for support?
  • If you have any children from past relationships, do you pay child support?
About Your Job
  • Where do you work?
  • How long have you worked there?
  • Who is your supervisor?
  • Will you be able to return to the job if you post bail?
About Your Living Situation
  • How long have you lived in your home?
  • Do you own or rent?
  • If you rent your home, do you have a written lease?
  • If you own your home, is the deed in your name? How much equity does the house have? What is the balance on your mortgage?
  • Do you have anyone to stay with if you are not able to return to your home? What is their relationship to you?
About Your Criminal History
  • Have you been arrested before?
  • Do you have any prior convictions?
  • What were your sentences?
  • Were you granted bail?
  • How many court appearances did you make?
  • Were you sentenced to parole or probation? Did you meet the conditions of your parole?
About Your Residential Status
  • Are you an American citizen?
  • Where were you born?
  • What is your immigration status?
  • Do you have a green card?
  • Have you ever been deported?
  • Have you ever overstayed a visa or work permit?
About Your Military Service
  • Have you served in the military?
  • What branch?
  • Where were you stationed?
  • What was your rank?
  • What type of discharge were you given?
Successful Bail Hearings Dependent Upon Your Showing of That You Will Show Up for Hearings
Bail hearings are not necessarily successful because of your criminal defense lawyer’s legal arguments, but because of the facts that the attorney can show to illustrate that you are a reliable person with community ties who presents a low flight risk.
In many cases, bail is a routine matter.  In other more serious cases or cases involving repeat offenders, it can be quite challenging.  It is very important that you seek the guidance of an experienced criminal defense attorney to guide you through the bail process.
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