Términos de Libertad Condicional Orientados Hacia el Fracaso

Cuando se habla de la injusticia del sistema de justicia penal, uno de los primeros lugares a observar es la libertad condicional. La mayoría de los términos de la libertad condicional son discrecionales por parte del oficial de libertad condicional. Esto significa que el oficial de libertad condicional determina si usted tendrá libertad o no. Esto significa que un período de prueba está a la disposición de su oficial de libertad condicional. El capricho nunca es algo bueno, especialmente cuando está relacionado de alguna manera con el encarcelamiento. El resultado es que las cárceles de Nuevo México están llenas de prisioneros que fueron violados en libertad condicional por asuntos menores, técnicos y no penales.

Todas y cada una de las disposiciones pueden ser manipuladas y contorsionadas para que una persona vuelva a prisión si así lo desea el oficial de libertad condicional. Frecuentemente ese es el caso y los tribunales están dispuestos a complacer la petición.

A continuación, enumeraré cada término y comentaré sobre el posible abuso. Léalos como si usted estuviera en el período de prueba y no le agradara a su oficial de libertad condicional, correcta o incorrectamente. Léalo nuevamente y, de acuerdo con los tiempos, imagina que eres negro, Latino/Hispano o nativo americano y que tu oficial de libertad condicional es racista.

La aplicación abusiva e insensible de los términos técnicos de libertad condicional, mantiene ocupados a los tribunales, a los oficiales de libertad condicional empleados, a los innumerables grupos parasitarios, organizaciones y profesionales financiados y las cárceles llenas. Se trata de dinero y avaricia con cada peldaño del sistema rezando por los más vulnerables entre nosotros por su propia ventaja económica.

Términos de Supervisión de Libertad Condicional Estándar

A continuación, se encuentran los términos estándar de libertad condicional del sitio web de NMCD. Todos están sujetos a una aplicación abusiva, pero nos centraremos en los que tienen más probabilidades de obtener una libertad condicional bien intencionada en prisión:

  • Leyes estatales: no violaré ninguna de las leyes u ordenanzas del Estado de Nuevo México ni ninguna otra jurisdicción. No pondré en peligro a la persona o propiedad de otro.

¿Obedecer las leyes estatales? Eso parece razonable hasta que se mira el Código Penal de Nuevo México y se considera una legislatura republicana que hace no mucho tiempo quiso convertir en delito que un adolescente pareciera borracho. ¿Qué significa eso? ¿Es un crimen parecer borracho? Por supuesto que no, todos los adolescentes parecen borrachos la mitad del tiempo. ¿Es un delito parecer borracho si estás en libertad condicional? Tal vez lo sea si el oficial de libertad condicional concluye que estás borracho. ¿Y qué significa poner en peligro a una persona o propiedad de otra? Cualquier cosa que el oficial de libertad condicional pueda convencer a la corte que significa.

  • Informes: Informaré a mi Oficial de Libertad Condicional tantas veces como sea necesario y presentaré informes escritos completos y veraces según lo requiera mi Oficial de Libertad Condicional/Oficial Probatorio. Toda comunicación con mi Oficial de Libertad Condicional/Oficial Probatorio será veraz y precisa y responderé de inmediato a cualquier correspondencia o comunicación que pueda recibir de la Oficina de Libertad Condicional.

Faltar con el informe es una de las principales razones para regresar a prisión. No hace falta imaginación para ver cómo un funcionario de libertad condicional abusivo o racista podría abusar de esto.

  • Estado: Obtendré permiso de mi Oficial de Libertad Condicional/Oficial Probatorio antes de: a) Salir del condado donde estoy siendo supervisado y/o residiendo; b) Cambiar de trabajo; c) Cambiar de residencia; o d) Participar en cualquier contrato financiero o deuda importante.

Cambiar de trabajo puede significar que perder el trabajo no es demasiado difícil para un delincuente convicto.

  • Asociación: No me asociaré con ninguna persona identificada por mi oficial de libertad condicional/Oficial Probatorio como perjudicial para mi supervisión de libertad condicional, lo cual puede incluir personas con antecedentes penales, otras personas en libertad condicional, y víctimas o testigos de mi crimen o crímenes.

Esto deja mucho al capricho del oficial de libertad condicional para determinar, después de todo, quién o quién puede ser considerado “perjudicial” para la supervisión.

  • Nivel de supervisión: Seguiré todas las órdenes e instrucciones de mi oficial de libertad condicional/Oficial Probatorio, incluida la participación activa y la finalización exitosa de cualquier nivel de supervisión y/o programa de tratamiento, que puede incluir correcciones comunitarias, ISP, monitoreo electrónico u otro programa de supervisión/tratamiento, según lo considere apropiado el oficial de libertad condicional/Oficial Probatorio.

Agobio, agobio, agobio “según lo considere apropiado el Oficial de Libertad Condicional”. Dios, me pregunto cómo se podría abusar de esto. Visitas: Permitiré que cualquier Oficial de Libertad Condicional/Oficial Probatorio me visite en mi casa o lugar de trabajo en cualquier momento. Permitiré una

  • búsqueda sin orden judicial por parte del Oficial de mi persona, automóvil, residencia, propiedad y/o vivienda si tiene una causa razonable para creer que la búsqueda producirá evidencia de una violación de mis condiciones de libertad condicional.

Esto está claramente sujeto a abuso, básicamente dando a un Oficial Probatorio racista o maligno una licencia para hacer de la vida de una persona en libertad condicional un infierno.

  • Empleo: a menos que esté exento, haré todo lo posible para obtener y mantener un trabajo legítimo y cumplir con todas las obligaciones financieras que se me exigen, incluido el apoyo de mi familia. Cooperaré con mi Oficial de Libertad Condicional en cualquier esfuerzo para ayudarme a obtener empleo. Si pierdo mi trabajo por cualquier motivo, informaré este hecho a mi oficial de libertad condicional/Oficial Probatorio dentro de las 48 horas posteriores al cambio.

Drogas: no compraré, venderé, consumiré, poseeré ni distribuiré ninguna sustancia controlada, excepto las prescritas legalmente para mi uso por un médico certificado por el estado. También proporcionaré muestras de orina o de aliento para análisis de laboratorio a petición de la división de Libertad Condicional.

Una palabra: marihuana. La marihuana es la posición alternativa para cualquier Oficial Probatorio motivado y racista. La marihuana permanece en su sistema durante 30 días. A pesar de su uso medicinal científicamente establecido para muchos de los problemas de salud física y mental que enfrentan los que salen de prisión, las personas en libertad condicional no son elegibles para una licencia de cannabis medicinal.

  • Costos de libertad condicional: Pagaré los costos de libertad condicional según lo determine mi oficial de libertad condicional/Oficial Probatorio en la fecha designada cada mes al Departamento de Correcciones en forma de giro postal o cheque de caja.

Piensa en los deudores de la prisión. Esto es real y la gente llega a la cárcel y a la prisión todo el tiempo debido a la pobreza o la falta de recursos financieros.

Original English Version:

When talking about the injustice of the criminal justice system, one of the first places to look is the prisons. To address prisons, one way to approach is through probation and parole which seems more geared toward filling prison beds than rehabilitation. This is in fact no different than prisons themselves and the New Mexico criminal justice system on the whole.

However, probation/parole officers have enormous power over the freedom of probationers/parolees. Some might argue they have unfettered power. With this, there is simply no way to avoid abuses when that power is in the wrong hand.

The problem begins with the subjective terms of probation/parole which allow for discretionary enforcement, arbitrary enforcement and/or malignant enforcement of the terms. With discretionary or subjective terms of probation/parole, a probationer or parolee is at the whim of his or her supervising officer. Whim is never a good thing especially when it is in any way related to imprisonment.

Probation/Parole Subject to Abuse

A review of the standard terms of probation and parole will show that many of the terms are discretionary and subjective. In other words, a motivated probation or parole officer can find a reason to violate the person for even slight technical violations. A malignant officer could not only find reasons but generate reasons to violate a person’s probation or parole. In fact, there are a significant number of inmates in New Mexico prisons right now on minor technical violations. Due the discretionary nature of the terms of probation/parole, we as New Mexicans have idea or even any way of knowing whether reincarceration was fair and justified. We must simply take the word of the probation/parole officers. I frankly have a problem with that.

The system is not geared toward keeping inmates from returning. It is just the opposite. It is far too easy to send someone back to prison.

Discretion is no Basis for Justice

The standard terms include highly discretionary terms. The first regarding reporting to the probation or parole office is actually probably the most problematic of all stating:

Reporting: I will report to my Probation/Parole Officer as often as required and will submit completed and truthful written reports as required by my Probation/Parole Officer. All communication with my Probation/Parole Officer will be truthful and accurate and I will promptly reply to any correspondence or communication I may receive from the Probation Officer.

The next very problematic term which is subject to abuse relates to associations, friendships, even family members;

Association: I will not associate with any person identified by my Probation/Parole Officer as being detrimental to my Probation supervision, which may include persons having a criminal record, other probationers and parolees, and victims or witnesses of my crime or crimes.

The next is equally prone to abuse should a probation officer see it fit to abuse it:

Supervision Level: I will follow all orders and instructions of my Probation/Parole Officer including actively participating in and successfully completing any level of supervision and/or treatment program, which may include Community Corrections, ISP, Electronic Monitoring or other supervision/treatment program, as deemed appropriate by the Probation/Parole Officer.

The problem with these terms is that they are extremely difficult to comply with under the best of circumstances. They are impossible to meet with an abusive probation or parole officer.

Little Recourse in Court

When there is an abusive probation or parole officer, there is little for a defendant to do. The courts will almost always side with the probation or parole officer. After all, how can the court trust a convict. The presumptions against the former inmate are extremely difficult to overcome.

In addition, imagine trying to gather evidence on behalf of the probationer or parolee for a violation of any of the above. It really is the probation/parole officer’s word against the former inmate/convict. More than that the probation/parole officer establishes the rules, i.e. “as deemed appropriate by the Probation/Parole Officer”. How do you think this might turn out? When we are talking about locking people up, there are countless collateral consequences to the inmate, the family and if that is not enough for taxpayers. Is it too much to ask that there be very well-defined rules?

Rules Matter

Discretionary rules are not rules. They are opportunities for abuse. They are opportunities to feed the monster that is the criminal justice system. They are opportunities for profits. They might even be as trivial as the desire of a probation/parole officer to lessen a workload. They might also be an opportunity to express racism, other bias or just an authoritarian personality.

There should be no room for judgement on the part of probation/parole officers. There should be rules, they should be well defined and they should be followed by all including the supervising officers.

Following the last legislative session, it is now possible to have your criminal record expunged in limited situations. Not all criminal charges and/or convictions may be expunged. However, there are several high volume victimless crimes that may be expunged from your record. These convictions historically have weighed most heavily on minorities and the poor. The new expungement law recognizes the injustice and harm of a lifetime criminal record for relatively minor offenses or charges even where they were acquitted or dismissed.

The burden of the prior laws on expungement as all things related to the criminal justice system fell and continue to fall on minority and poor individuals, families and communities. The long oppressive history of our criminal justice system and the prison industrial complex need not be discussed here. Suffice it to say that the expungement law is a very small step in the right direction.

Types of Charges and Convictions that May be Expunged

There are a number of categories of criminal charges and convictions that may be expunged.

EXPUNGEMENT OF RECORDS UPON IDENTITY THEFT

The only thing remarkable about this category is that expungements were not freely allowed in the past. Imagine that. The wrong person is charged and cannot have the record expunged. Worse, the wrong person is convicted and the record cannot be expunged. This has been the law in New Mexico until now. It remains the law in most of the rest of the U.S.

Returning to the opening paragraphs, if one had to guess, what segments of the population would be most heavily targeted by these types of charges and convictions? Which individuals, families and communities would be forced to bear the grossly oppressive injustice of such a legal reality?

EXPUNGEMENT OF RECORDS UPON RELEASE WITHOUT CONVICTION

This one is only slightly more remarkable. The same targeting of minority and poor communities with false charges holds true. Some might argue that not all individuals that are charged and not convicted are innocent. This is certainly true. However, our entire system of criminal justice rests on the presumption of innocence. The prior laws on expungement tossed this basic precept out the window along with any pretense of justice for those falsely charged.

The new law is fairly broad but it does have one significant limitation. A prior dismissal or acquittal may not be discharged if the person seeking expungement has current pending charges. The law does not address the situation where the person is convicted on the current charges or other past charges. The problem here again goes to the presumption of innocence. This limitation basically presumes guilt on the prior charges that were dismissed or acquitted due to new charges. There are too many issues to discuss here related to the problems with this limitation but the most obvious is that the criminal rules of evidence themselves protect against such presumptions of guilt.

EXPUNGEMENT OF RECORDS UPON CONVICTION

Convictions themselves may be expunged even in the case of felony convictions under very limited circumstances. This provision of the law is far more complex than the first two categories eligible for expungement.
It is important to note the exclusions from this provision. Criminal records may not be expunged for the following categories of crimes:

  1. Crimes and offenses against a child,
  2. Crimes and offenses causing great bodily harm or death to another person,
  3. Sex crimes and offenses,
  4. Crimes or offenses of Embezzlement, and the big one,
  5. Crimes or offenses involving driving while under the influence of intoxicating liquor or drugs.

Anyone with charges related to those exclusions is very likely wasting their time and their money even attempting the exclusion. Although the law may evolve over time through the courts and/or additional legislation, there are currently no exceptions to the exclusions.

For expungements of convictions, he basic premise is that justice will be served by the expungement. What this means in reality is that it is up to the judge to decide based upon individual cases. This in turn means that you are going to need work hard to gain an expungement for actual criminal convictions.

Seek Legal Counsel

Whatever category of charge or conviction that you are seeking to expunge, don’t assume that it will be easy. Don’t assume that you will get more than one shot at it. There is nothing in the law that says you will. In any criminal case or matter, you may represent yourself. You do not have to have an attorney. However, this is far different than saying it would not be better to have an attorney.

It is not clear whether there will be public defender or other public assistance for purposes of expungements. A safe guess would be that there will not be. Sadly, even a law at least in part passed to alleviate the burden on minorities and the poor, they may have the least opportunity to use the new law to their benefit.

There have been a number of suicides recently in New Mexico prisons and jails. Collins & Collins, P.C. is aware of these because we have gotten calls from 2 of the 3 families affected by the inmate suicides. It appears based upon local news coverage from KOB that there were 2 such recent suicides  in a matter hours at the same New Mexico Corrections Department prison facility.   The 3rd suicide occurred in a county jail and the inmate died at a hospital.  In sum, there appears to have been 3 inmate suicides in a week in New Mexico jails.  The suicides all occurred within a 48-hour time period.  This is clearly a problem.  

Inmate Suicide Should Not Occur

The plain fact is that suicides in jails and prisons simply should not occur. There are many clear warning signs for potential suicide.  Jails and prisons have a duty to keep an eye out for these warning signs and to take appropriate action in order to prevent an inmate suicide. In fact, there are federal and state guidelines on suicide prevention in jails and prisons. In addition, both the American Corrections Association (ACA) and National Commission on Correctional Health Care (NCCHC) establish prison industry standards for suicide prevention.

Prison Industry Standards for Inmate Suicide Prevention

The NCCHC and ACA both set forth minimal standards for suicide prevention. These suicides are preventable. Yet New Mexico jails and prisons deliberately choose not to follow these simple requirements.  The basic standards include adequate staffing levels and adequately trained staff.  These are both generally lacking throughout New Mexico prisons and jails. 

1.  Staffing Level Requirements

New Mexico prisons and jails are chronically understaffed. This is true in New Mexico Corrections Department run facilities,  privately-run facilities and county facilities. The problem is very well documented, yet prison and jail administrators throughout the state have chosen not to enforce staffing level requirements. The failure to adequately staff correctional facilities undoubtedly adds to the already significant risks of inmate suicide.

2.  Staff Trained in Suicide Prevention

It is essential that staff be trained in suicide prevention. This means that staff must be trained to identify inmates at risk of suicide. It means further that there should be guidelines on how to identify suicidal inmates and the appropriate preventive measures that must be immediately implemented to protect those inmates. Correctional facilities in New Mexico clearly do not value this training or the standards that should for the basis for the training.  The failure of training and the consequent violation of the standards and guidelines governing suicide prevention shows a callous and reckless disregard for the health and safety of inmates. 

Preventive Measures Must Be Implemented

Following the last point, it is absolutely essential that immediate preventive measures should be activated once an inmate at risk of suicide is identified. This of course is problematic based upon the numbers 1 and 2 above. Staffing levels are insufficient for appropriate staff inmate one on one interaction. Staff are not properly trained to identify at risk inmates. Even when identified, the industry guidelines on preventive measures are not implemented. This brings us back to fact that a casual observer and perhaps even a legally trained observer might conclude the New Mexico corrections simply lacks concern for the health and safety of its inmates.

NMCD Facilities Not Accredited by ACA or NCCHC

To reiterate, NMCD facilities are not currently accredited by the ACA or NCCHC.  Collins & Collins, P.C. has for at least 2 years been attempting to obtain information on NMCD accreditation under the American Corrections Association and National Commission on Correctional Health Care. What we have found is in our estimation is pretty shocking. However, there is much more to learn and perhaps even greater shock to come.

What we do know now is that NMCD has simply chosen not to seek accreditation under NCCHC at all. This is remarkable in the fact that NCCHC sets minimal constitutional requirements for correctional healthcare. Likewise, it has been established that Central New Mexico Correctional Facility (CNMCF) has not been ACA accredited since at least 2015.

Why is this so shocking? Because 2 suicides in a matter of hours occurred at CNMCF last week as reported by KOB.

As mentioned, there is much more that Collins & Collins, P.C. needs to learn. Also, as mentioned, NMCD has chosen not to seek nor follow NCCHC accreditation or its guidelines. We also know CNMCF is not currently ACA accredited. What we do not know is on the overall status of ACA accreditation for NMCD facilities other than CNMCF. The tasks of making that determination has been monumental with Inspection of Public Records Act (IPRA) requests ongoing and at least one IPRA lawsuit in progress.

Current Litigation Regarding Medical Care in NMCD Facilities

Collins & Collins, P.C. is currently in litigation on a number of cases involving what we believe to be egregious medical malpractice in NMCD facilities. There are several more that we are currently evaluating. The thread running through these cases is the absolute disdain for the health and safety of inmates in NMCD facilities. Of course, this carries through to inmate suicides and specifically to the rash of suicides we saw last week.

We will do our best to keep you posted. However, the best way to stay abreast of these developments is to follow the litigation.

Lawsuit says prison failed to care for man who killed himself/ By Sami Edge | Santa Fe New Mexican

Two inmates commit suicide within hours of each other at NM prison

New Mexico inmate sues medical care providers, state over massive bedsore/By Phaedra Haywood | Santa Fe New Mexican

Former New Mexico state prison inmate claims poor medical care in lawsuit/ By Rebecca Moss|Santa Fe New Mexican

 The incidence of domestic violence in the military has been so high that the Department of Defense has made special and concerted efforts to address this problem over the span of years. Rates of domestic violence are far higher among military families than among members of the general population.

PTSD Common Element in Military Domestic Violence Cases

In 2011, the Pentagon noted that Post-Traumatic Stress Disorder (PTSD), combat-related, was one of the primary drivers for family violence. The report remarked that “Soldiers with PTSD are up to three times more likely to be aggressive with their female partners than those without such trauma.” The report also noted that many are afraid to report incidents of family violence due to repercussions such as the impact it might have on promotion within the military and rates of pay.

Female Service Members Often Suffer Domestic Violence at Hands of Civilians

According to the Department of Defense in 2011, “Military family advocacy social workers supported 14,237 people in response to domestic violence reports. Victim advocates worked with 18,055 during that time, Defense Department records show. The family advocacy program, Military OneSource, and military family life counselors supported many more who sought help without a report being filed,” Robertson said. She also noted that half of all reported cases were from a female service member abused by a civilian man. Overall family safety should remain the primary consideration of all parties involved; however, other considerations may also have far more dire and long-lasting impacts on military families than on other sub-populations in the United States.

On Responses within the Military

The bulk of cases involving family violence among active duty military personnel are addressed by the civilian justice system(s) when the incident did not occur on a military installation. Those that take place on-post are handled by military authorities. At most military installations commanders will have a Memorandum of Understanding (MOU) with local community governmental authorities that address how criminal cases will be handled.

There are actually two systemic mechanisms put into place to deal with domestic violence cases in the community; the Family Advocacy Programs (FAP) and the Military Justice System or Uniform Code of Military Justice (UCMJ). How each program will respond and the steps undertaken with respect to a given incident of domestic violence will vary by local agreements and understandings with civilian authorities and by the circumstances surrounding the incident. FAP usually involves multiple stake-holders, on both the military and civilian side, and they are tasked with addressing violence within military families.

Impacts of a Conviction for Domestic Violence upon Active-Duty Military

Perhaps the foremost consideration when an active duty military member is convicted would be the repercussions under the Lautenberg Amendment. Under Lautenberg, if you are convicted of an act of domestic violence you lose the right to bear firearms—in other words, for active-duty military personnel this may mean you will not be able to perform your duties and you will have to leave the military. Conviction for an offense involving domestic violence will, in fact, mean that you will never be able to own firearms, period. There are other long-term impacts which one should also consider when facing charges for an act of domestic violence, among them; inability or restriction upon ability to obtain professional licensure or certification (in health care or law enforcement, for example) and other barriers to employment in a variety of professions.

It is imperative, if facing charges in a case involving domestic violence, to pursue competent and reliable legal representation. Collins & Collins is a long-established, experienced and reputable law firm that can provide a quality legal defense in cases involving domestic or family violence. We can be reached at (505) 242-5958

 To get started, you should understand that there are many important deadlines that will come up during your DWI case. Many of these will come up during the DWI criminal process. Your attorney will handle these deadlines.

The deadlines that you really need to be aware of are the deadlines that may come and go before you even think about hiring an attorney. Two of these relate to your driver’s license and your vehicle.

You should keep in mind that the driver’s license revocation proceedings and vehicle seizure proceedings are separate from the criminal case. This will be explained in a later section.

To get straight to the point, here are the early deadlines in your DWI case that can really nick you if you are no paying attention:

Request for MVD License Revocation Hearing

Deadline = 10 days from date of arrest

Result of Missing Deadline – Automatic License Revocation

This is one deadline that many people miss. The deadline is provided with a lot of other paperwork that you receive upon release from jail. The Request for Hearing is not included. You can obtain the Hearing Request online at by searching for MVD License Revocation Hearing Request.

Once you obtain a Request for Hearing, you will note that you must mail the Request within 10 days of arrest along with a $25.00 check or money order. We recommend mailing the Request by Certified U.S. Mail, with a return receipt. This provides you proof that you mailed it by the deadline and that the MVD did receive it. Failing to mail the request in time and/or failure to enclose the $25.00 will result in automatic revocation.

There are very few exceptions. Do not wait on sending your request.   You do not need an attorney nor is there any reason to wait. It has to be done within 10 days of arrest

The Request for Hearing can be found online readily by searching “New Mexico MVD Hearing Request.”

Important Points for MVD Hearing Request

There are a couple of points to keep in mind on the Hearing Request form:

Make sure you are using the most current form. They do not change often but when they do, it is important to make sure you are using the most current form.

Be sure to check the boxes next to “Implied Consent Act” and “I want the officer to be a witness at my hearing.” This will be discussed more in the MVD Hearing section.

Request for Vehicle Seizure Hearing

Deadline = 10 days from date of arrest

Result of Missing Deadline – Automatic forfeiture of your vehicle

This is another deadline many people miss. Often, they do not fully understand what has happened to their vehicle. Many times, the vehicle does not belong to the DWI driver but someone else who has no idea what is happening with the vehicle.

It is very important to move quickly on this issue. There are some things you can do save your vehicle leading up to and at the hearing. However, if you miss the deadline, you do not get a hearing. The hearing request can be found online by searching for Albuquerque (or other city) DWI vehicle seizure hearing request.

There are possibilities to regain your vehicle following forfeiture but it is both difficult and expensive. The better route is to meet the deadline and then prepare for and attend the hearing.

You do not need an attorney to send in the request for hearing so send it out immediately, do not wait! You can find the hearing request by searching “Vehicle Seizure Hearing Request for Albuquerque.” It should pop right up.

The State of New Mexico and the City of Albuquerque have recently been getting less than stellar national media attention. The State of New Mexico has made the national news by having the distinction of being the state with the second highest crime rate nationally. On the other hand, the City of Albuquerque has received national media attention because its leaders have entered into a consent decree with the United States Department of Justice over the excessive use of force by Albuquerque Police Department officers.

Routine Use of Lapel Cameras by Police Officers Have Made Video Evidence Prevalent

Given these dubious distinctions, it is easy to see how the Albuquerque Police Department has been at the forefront in the use of lapel cameras by police officers and the New Mexico State Police with video cameras in squad cars for use during traffic stops. With such a high crime rate, it is easy to see how, even the best-intentioned police officers can be swept into a situation where excessive force is resorted to and used.

For example, two Albuquerque police officers have been recently charged in the murder of a homeless man during a stand-off, primarily because of the video evidence from an officer’s lapel camera during the incident. The prevalence of video evidence from police encounters has now added a new scope in the prosecution and defense of criminal cases.

Video Evidence Must Be Disclosed Otherwise a Criminal Case May Be Dismissed

The routine use of lapel cameras by the Albuquerque Police Department officers has made it such that during the prosecution of a criminal case, if video evidence is not disclosed, the criminal case may be dismissed. A review of the relevant case law shows us that the standards from a 1981 case now applies to video evidence.

The most commonly cited case is State v. Chouinard, 1981-NMSC-096 (S. Ct. 1981), as it is applied to video evidence. If video evidence is not disclosed, or if it is lost, the trial court must make a determination on the materiality and prejudice of not having the video evidence. With the prevalent use of lapel video cameras by police officers, the absence of the video during the prosecution of the criminal case, can result in a dismissal of the criminal charges.

Lapel Video Evidence is Material and its Absence Can be Prejudicial to the Defendant

This is certainly something that has been unique to Albuquerque, as the police department has been using lapel cameras for some time now. As a matter of course, lapel video evidence is now always requested, in any criminal defense here in Albuquerque. If the officer failed to turn on his lapel camera or if the video evidence is lost prior to trial, the court must either exclude all evidence which the lost video evidence might have impeached (such as officer testimony), or admission with full disclosure of the loss and its relevance and import of the lost evidence.   State v. Chouinard, 1981-NMSC-096 (S. Ct. 1981).

Consult With an Experienced Criminal Law Attorney

As you can see, a criminal arrest has many new aspects, of which you should be aware and prepared for as it happens. If you feel that your arrest is not justified, or if you feel police conduct is not justified, you can always ask if the arresting officer is using his lapel camera. Video evidence of your arrest can be critical for your defense. Real time evidence as the arrest is happening can make your defense clear cut and your charges easier to defend. Criminal defense can be very complicated, and therefore, you should seek competent and experienced counsel to represent you. The attorneys at Collins & Collins, P.C., are experienced in these types of cases and are ready to represent you.

There are fairly basic requirements for admission of the breath alcohol score into evidence at trial.  However, these basic rules are on occasion violated by the officer.

In case of violation of the rules, the breath test score will not be allowed in court.  This does not necessarily mean the case is dismissed which will be discussed below.

In cases where the rules are violated, the breath alcohol score can be excluded from evidence.  In cases where the breath score is .08 or above, this is very beneficial to the defense of your DWI charges.  The harder decision is when the score is below .08.

Requirements of DWI Officer and DWI Testing Equipment

Here are the requirements for admission of the breath score at trial.  This is something that your DWI attorney should address during the course of the defense of your DWI charges.

  • The Defendant’s mouth was checked to ensure there was nothing in the mouth,
  • Related to the first requirement, there must be a 20 minute 
“deprivation period” where the defendant is observed with nothing to eat, drink or smoke,
  • The officer conducting the breath test must be certified by New Mexico Scientific Laboratory Division for operation of the Intoxilyer machine,
  • The Intoxilyer machine must be certified by SLD,
  • There must be no apparent malfunctions during the test,
  • The machine’s calibration was between .07-.09,
  • Two subject samples were obtained, or if the first two were more than .02 apart, then a third sample was obtained that was within .02 of either of the first two samples.

Each one of the requirements must be met.  Whether or not they were met will be given significant attention in reading the DWI incident reports, the interview of the DWI officer, the documents related to the equipment and finally at trial on cross examination of the police officer.

Inadmissibility of Breath Score Does Not Mean Dismissal of Charges

It is not all that uncommon that the breath score is excluded from evidence at trial for any number of reasons, many times related to violation of one of the requirements above.  However, exclusion of the evidence does not mean that the case is dismissed and you win your case.  A trial may be, and generally is, still conducted.

The reason the district attorney can move forward even without a breath score showing that your breath alcohol level was at .08 or above is that New Mexico follows an “impaired to the slightest degree” standard.  This means that you can still be found guilty of DWI even if your breath alcohol score was below the .08 level.

Impaired to the slightest degree is really no standard at all.  It comes down to if the officer says you were impaired, you are getting charged no matter what your breath alcohol level.  Not only are you getting charged, but also depending upon the judge, there may be a very good chance that you will lose on this standard.

Bench v. Jury Trial

You may be asking, as do most DWI attorneys, how can this be? To begin, the outcome will often differ dramatically depending upon whether you have a bench trial (just the judge) or a jury trial.  You have a much better chance of winning at below .08 with a jury than with some of the judges (not all).

So now you may ask why you would ever have a bench trial rather than a jury trial.  Unfortunately, for first time simple DWI which is the vast majority of DWI cases, you have no right to a jury trial.  Your only option is a bench trial.

The outcome then is in the hands of the judge alone.  For most judges, this is not necessarily a horrible thing although a jury is generally preferable.  However, for a select few judges, you can find yourself at a severe disadvantage at trial.

Seek Experienced DWI Counsel

This is only a cursory discussion of the issue.  The admissibility of the breath alcohol score can get immensely complicated invoking not just criminal law and evidence but also science and chemistry.  The issues surrounding the impaired to the slightest degree standard are significantly less complicated but confusing nonetheless for most non-attorneys.

It is important that you seek the guidance of an experienced DWI attorney to guide your through this process with the best chance. Collins & Collins, P.C. can be reached at (505) 242-5958.

Welcome To New MexicoTravel comes with a few risks.  Most of these are well known and relate to safety.  Most travelers routinely prepare of these prior to any extended trip.

Aside from the normal precautions that you may need to take when going on a road trip, consider also taking precautions for a less widely known hazard of road trip travel, i.e., contact with law enforcement agencies.

Although civil asset seizure has always been prevalent in the United States, since September 2001, it has been more pervasive as the federal government has been training and encouraging local law enforcement agencies to seize personal property from those traveling on America’s highways.  If there is any “suspicion” that the property is connected to a crime, it is at risk of seizure.

Law Enforcement Does Not Have to Charge You With A Crime to Keep Your Property

The City of Albuquerque, New Mexico has two interstate highways that intersect it, making civil asset seizure a bounty for both state, city and county law enforcement agencies. A simple traffic stop by law enforcement can result in asset seizure without ever being charged with a crime. Law enforcement agencies are trained to ask for permission to search a vehicle and many times, perfectly innocent items can prompt an asset seizure.

For example, if you are carrying with you a large sum of cash, law enforcement officers can accuse you of having the cash in anticipation of making a drug deal, and seize the cash, all without ever charging you with a crime or initiating forfeiture proceedings. Even having expensive items in your vehicle without receipts, such as video game consoles or jewelry, can result in a seizure as an investigation is now launched into whether or not you are transporting stolen goods. In other instances, even your vehicle may be seized, leaving you stranded.

If Your Property Has Been Seized, You Have A Right to Fight to Get it Back

When you are traveling through an unfamiliar city and you have an unexpected encounter with local law enforcement, the experience can be very traumatic. In many occasions, law enforcement officers know that you are in a hurry to travel somewhere else and encourage you to continue on your travels while keeping your property for evidence, while they conduct an investigation, knowing that a lot of people will not contest the seizure in court.

Law enforcement agencies are encouraged to aggressively search for suspicious people, drugs and contraband and unfortunately, a lot of those encounters are with law abiding citizens that through no fault of their own do get caught up in the asset seizure quagmire that may take months and considerable expense and legal fees to get those items returned. In many instances, law enforcement agencies will not even pursue a forfeiture case, leaving it to the law abiding citizen to sue the department for return of their seized property.

Don’t Expect Fairness Without a Fight

News agencies throughout the United States have begun reporting and investigating what many have experienced and seen for years, legal battles against law enforcement agencies for the return of seized property in cases where a person was never charged with a crime, or the law enforcement agency initiated a forfeiture proceeding.

These aggressive seizure tactics are unfortunately used by many law enforcement agencies not to fight crime but to acquire assets for their departments.  No matter that it is accomplished on the backs of innocent citizens and families.  When asset acquisition is the goal, it goes without saying that fairness is not part of the equation.

Regardless of your situation, you should seek competent and experienced legal counsel if this happens to you.   Albuquerque attorneys, Collins & Collins, P.C., can be reached at (505) 242-5958.

The holiday season comes with a lot of celebration.  Much of it includes alcohol. It also includes bouncing from one get together to the next, whether it be with friends, family, work or business associates.

This means there are numerous temptations to drive after having consumed alcohol.   It goes without saying that this is bad idea.  It is never a good idea to drink and drive, but in terms of possible DWI charges, the holiday season is perhaps the worst due to the huge emphasis placed on DWI by New Mexico law enforcement during the holiday.  This is particularly so in Albuquerque.

Here are few things to keep in mind before you hit the road and the party circuit this holiday season.  If you do you end up slipping and getting arrested for DWI, hire an attorney right away.  There are a number of early deadlines in these cases that must be met to fully protect your rights.   Collins & Collins, P.C. can guide you through the process.  Give us a call at (505)242-5958.

.08 is Not the Measure of DWI in New Mexico

New Mexico courts follow an “impaired to the slightest degree” standard. In other words, .08 is not the rule in New Mexico DWI cases. 

Perhaps more important than any other fact that you should know about DWI in New Mexico is that the well known .08 breath alcohol limit is not the standard.  Instead, New Mexico follows an “impaired to the slightest degree standard.”

What does impaired to the slightest degree mean?  It means that you are getting arrested if you have been drinking at all and the cop is of a mind to arrest you.  It means there really is no standard other than what the individual officer wants to impose at the time.

This is not an exaggeration.  Drivers are charged routinely, particularly in Albuquerque, at breath alcohol levels below, sometimes well below, the .08 standard.

Refusing the Breath Test Results in Aggravated DWI Charges and Automatic Revocation of Your Driver’s License

Yes, you have the right to refuse the breath test but you might want to think it through before you do.

This is always a hard one to explain.  Most people who have no legal experience with DWI believe that it is their right to refuse a breath alcohol test.  They may believe this is to their advantage in case criminal charges are filed.  They are partly right on both counts but there is much more to it.

Yes, you have a right to refuse the breath test.  And yes there may be advantages later at trial if there is no breath score.  On the other hand, refusal has serious consequences and the benefits for refusal may be purely illusory.

Refusal means automatic aggravated DWI charges.  Conviction for aggravated DWI carries mandatory jail time.

Refusal means automatic revocation of your driver’s license under the Implied Consent Act.  In case there is a breath test, your license is revoked only if you blow over .08.  Even if the officer chooses to arrest you under the aforementioned impaired to the slightest degree standard, your license will not be revoked at a breath alcohol measure below .08.

Child Passengers Mean Felony DWI Charges

DWI with child passengers = felony charges. Child passengers = children under 18 years of age.

This is a big one.  The car is often loaded with kids as you go from one get together to the next.  The safety of the children should be sufficient argument alone for avoiding driving under the influence.

However, if the children’s safety is not enough, you should understand that DWI with children in the care can and do result in a number of felony charges related to child abuse and neglect.

DWI Accidents Mean Felony Charges

There are a host of possible felony charges for a DWI involving an accident.

A DWI accident will also result in felony DWI charges.  These will definitely be filed in the foregoing DWI case involving child passengers.  But felony charges can come up in other situations as well.

Most common, DWI accidents involving injuries will result in felony DWI charges.  This would include accidents involving other drivers, pedestrians and/or passengers in your own car.

Most catastrophic for all involved is an accident involving death.  These accidents will be charged as vehicular homicide along with numerous other counts.

Plan Ahead – Don’t Drink and Drive

DWI During the Holiday - Its Not Worth It
DWI patrols are out in force during the Holidays in New Mexico. It is not worth the risks! Don’t drink and drive.

DWI is taken very seriously in New Mexico.  Law enforcement is aware of the celebrations that come with the holiday season and they plan accordingly.  Law enforcement will be out in force with roadblocks, DWI super blitzes, increased patrols and so on.

Drinking and driving during the holidays puts you at high risk for a DWI.  It puts other drivers on the road at risk as well.  It puts your family at risk.  Just don’t do it.

Plan ahead.  There are many resources available to get you and your family home safely.  These include designated drivers, cabs, Uber style services, Safe Ride and even monthly club memberships that make sure you get home safely.  Some will even get your car home as well.

If by chance, you do get a DWI, contact an experienced DWI attorney right away.