Stalking is a common domestic violence charge in New Mexico. The definition of stalking under the New Mexico statutes is fairly broad allowing prosecutors great latitude in bringing stalking charges.

Under the statute, stalking is defined to include any of the following acts on more than one occasion:

1) following a person in a place other than the residence of the alleged stalker,
2) placing another under surveillance by being present outside the person‘s residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence e of the alleged stalker, or
3) harassing another person.

Each and every element of the definition can be read very broadly to include some fairly innocuous behavior. A first time stalking offense is a misdemeanor. Under the prior law, a 3rd offense was a 4th degree felony.

However, due to the growing concern with domestic violence, the law was amended in 1997 to make a second offense a 4th degree felony. In addition, aggravated stalking may be charged for knowingly violating a protective order or no contact order.

Aggravated stalking is also a 4th degree felony. Aggravated stalking consists of knowingly violating protective order, violating a no contact order under conditions of release, stalking while in possession of a deadly weapon, or stalking a person under 16 years of age.

A 4th degree felony carries very serious penalties with possible jail time of 18 months and fines up to $5000 for each count. Most prosecutors will charge the offense of aggravated stalking only in cases involving real and serious danger to a victim. Others may err on the side of caution and charge it whenever the statute allows. Then there are those prosecutors that will charge everything conceivably possible under the alleged facts in order to gain strategic advantage. And felony charges most definitely place enormous plea pressure on a defendant due to the great risks associated with conviction.

To avoid any risk of charges for aggravated stalking, a person under a protective order or no contact order should have absolutely no contact with the alleged victim of any kind. This means avoiding contact even when the alleged victim initiates the contact. Charges under these circumstances are far too common.

The statute reads that a mutual violation “may” constitute a defense. Thus, a mutual violation is not an absolute defense. Nor does a mutual violation prevent the charges from being filed.

In short, it is highly inadvisable to test the boundaries of the statute. In a case of alleged domestic violence or stalking, the defendant should either stay away from the victim, or get the protective order or no contact order lifted. Any other course of action is extremely risky carrying very serious felony consequences.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

It is the unfortunate truth that divorce and child custody disputes can often lead to charges of domestic violence by or against either party.

In New Mexico, a single incident of reported domestic violence can result in criminal domestic violence and/or a civil domestic abuse case, either of which have serious consequences for the accused abuser.

The criminal domestic violence case is usually the result of the typical domestic violence call to the police or 911. Whenever the police are called on a domestic violence incident, one of the parties will be arrested if both are still present. Criminal charges are then filed against the arrested party. If the alleged abuser has left the premises, criminal charges will be filed without an arrest.

No matter how the charges are filed, the Court will almost always issue a no contact order that prevents the accused abuser/defendant from any contact with the victim. Typically, the court will also order the defendant to stay away from the alleged victim‘s home which is often also the home of the defendant.

In addition to criminal charges, the New Mexico Family Violence Protection Act allows a victim of domestic violence to file a civil case against the accused abuser by filing what is called a petition for order of protection. Upon filing the petition, an immediate temporary order of protection will be issued. Like the no-contact order in the criminal proceeding, the order of protection prevents any contact between the alleged abuser and the alleged victim. This civil proceeding can run concurrently with a criminal case.

In case of criminal charges, the case can go on for months. A civil case proceeds much more quickly. A hearing is set within ten days of service of the temporary order of protection and notice of hearing. In other words, once the alleged abuser receives notice of the allegations, an evidentiary hearing will be held for the court to determine whether or not the alleged abuser is guilty of an act of domestic violence. If domestic violence is found, a 6 month order of protection will be issued. This order may be extended for good cause.

Either a criminal conviction for domestic violence or a finding of domestic violence in family court have very serious and negative consequences on things like future employment options, the ability to carry a firearm, immigration status and even the ability to rent an apartment.

Either a criminal proceeding or civil proceeding will have many of the same negative collateral consequences. The severity of these consequences is why it is so important that parties on either side of a domestic violence action speak to an attorney to understand their rights, responsibilities and the consequences of a finding of domestic violence. It is equally important in both a criminal and civil proceeding.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

One of the biggest sources of contention early on in a New Mexico divorce action is which party is going to leave the parties‘ marital home.

In New Mexico, a temporary domestic order is entered at the beginning of divorce which prevents either party from forcing the other to leave their shared residence. If both parties refuse to move out, then the court will have to enter an order determining who can stay and who must leave. This is not an easy issue in light of New Mexico‘s community property laws.

It may seem reasonable to just let the court decide who stays and who goes. In reality, it can take months, often many months, to get a hearing before the court on this issue. In the meantime, there are two people who are most likely not getting along very well attempting to live under the same roof.

While neither party may want to leave because they fear giving up a claim to the residence, the parties should also consider other damage that can occur when people who are arguing are forced to live together. This includes acts of domestic violence and sometimes false allegations of domestic violence.

Domestic violence can result in horrible physical and mental harm, and even in death. Domestic violence is a very serious problem and it is taken very seriously by law enforcement. In fact, law enforcement officers face some of their most serious officer safety issues in domestic violence situations. This accounts for the inevitable and sometimes seemingly illogical arrest of one of the parties on every domestic violence call.

A conviction for domestic violence or even an entry of an order of protection can result in permanent and irreparable damage to the alleged abuser. These include consequences for gun ownership or possession, employment, security clearance, property rental and immigration status among others.

These dour consequences result on a conviction or finding of guilt. Many times, it is the alleged victim‘s word against the alleged abuser. Is it really worth the risk in either case? The house is not worth a lifetime of disadvantage resulting from a finding of domestic violence.

Any sensible person faced with a choice of leaving the house, loss of pride, financial concerns or the like as opposed to a possible domestic violence situation should think seriously about moving on.

False allegations of domestic violence are hard to swallow for the alleged abuser. A true act of domestic violence is completely unacceptable and intolerable for the victim, law enforcement and the courts. Either way, living in a hostile home environment in the midst of divorce is truly flirting with disaster.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

Many New Mexico courts, including Albuquerque‘s Metropolitan Court, offer a domestic violence early intervention program for first time offenders.

In order for a candidate to enter the program, the defendant, district attorney and presiding judge must all agree to a referral to the Early Intervention Program.

Assuming that the case is referred to the Early Intervention Program, the criminal case is stayed and is now basically in limbo. The case is taken off the presiding judge‘s criminal docket and transferred to the judge who oversees the Early Intervention Program.

An Early Intervention Program staff member interviews the candidate to ensure that the program is a good fit. The staff member is interviewing the person for two primary reasons. First, it must be determined that the person is voluntarily entering the program. Second, the defendant must admit some wrongdoing and that counseling would be beneficial.

An admission of wrongdoing is not the same as admitting guilt. Neither is it admitting to the allegations of the alleged victim. It is simply an admission of some wrongful behavior which would indicate and benefit from counseling.

On the other hand, a person who denies any wrongdoing at all is not a good candidates for the program. In the absence of some admission of wrongful behavior and the need to change the behavior, the defendant will not be admitted to the program.

Admission to the program carries with it a minimum of 6 month of supervised probation. While on probation, the person must comply with the a number terms. The standard terms include no further violations of law, no new domestic violence charges, no drugs or alcohol, and the completion of counseling. In addition, the individual must meet with his or her probation officer twice a month for the first 90 days. Depending on progress, this may be reduced to once a month after 90 days.

The goal of the program is for people to develop new relationship skills. As such, the most important part of the program is the completion of counseling. Counseling is provided by private sector domestic violence counseling programs authorized by the Court.

It is said that Domestic Violence is based on power and control not necessarily anger management. Physical abuse, manipulation, verbal abuse and demeaning comments are all forms of degrading and abusive uses of power and control often indicating the presence of and/or risk of domestic violence. Students are taught empathy, personal boundaries and communication skills to prevent future incidents.

The program has a high success rate due in part to the admission requirements. The program has a graduation rate of about 90% and a recidivism rate of only 8%. Not only does the individual benefit from counseling thereby avoiding future charges of domestic violence, completion of the program results in a dismissal of the charges. The value of avoiding conviction and the consequences of a domestic conviction cannot be overstated.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

The 6th Amendment‘s confrontation clause is crucial in criminal trials because it allows defendants to have a fair trial which the framers spelled out in the Constitution of the United States. The 6th Amendment of the Constitution protects an individual‘s right to confront their accuser at trial in a criminal case.

The confrontation clause bars the admission of hearsay evidence unless the out of court declarant testifies at trial. In other words, the statements of a witness or alleged victim cannot be admitted into court without the witness‘ or alleged victim‘s in-court testimony.

This is particularly important in domestic violence cases. When an alleged victim accuses a person of domestic violence, the alleged victim‘s and any other witness‘ statements can only be used against the defendant if they show up to court and testify. There are few exceptions to the rules prohibiting hearsay testimony. These rules would rarely apply in the typical domestic violence case.

At trial, the defendant has a right to cross examine the alleged victim and other State witnesses to determine the truthfulness of their statements. When an alleged victim does not show up to trial, the State usually does not have the necessary evidence to present their case.

By only presenting evidence of a crime without actually having a victim appear in court, the prosecution is attempting evidence based prosecution. Evidence based prosecution which is often attempted by prosecutors in domestic violence cases faces many challenges due to hearsay objections and confrontation issues under the 6th Amendment.

For example, prosecutors will frequently obtain the alleged victim‘s 911 call. As part of evidence based prosecution, the State may attempt to use the 911 tapes to prove that the defendant committed the alleged act of domestic violence such as battery or assault on a household member. In doing so, the State may argue that this is public record and try to admit this evidence.

The State is attempting to recreate the drama of the alleged incident to a jury through the 911 call. The State is also attempting to illicit statements from the 911 call which may implicate the defendant in wrong-doing. However, once the 911 operator begins to engage in any type of questioning, the statements are then testimonial hearsay and the confrontation clause bars this evidence from use at trial. Perhaps just as problematic is the identification of the caller. This issue would be raised as an objection for failure to authenticate the caller‘s identification.

If the State‘s only case is evidence based prosecution without eyewitness testimony, the State has an uphill battle when presenting its case. The prosecution will have a hard time overcoming the evidentiary objections to hearsay and authentication.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER

Legal situations like domestic violence or DWI can have far-reaching consequences.

Aside from the attorneys fees, court costs, fines and possible jail time, a potential military recruit may be denied enlistment in the armed forces if they are currently dealing with or have been involved in certain legal situations.

The military is not meant to be rehabilitative in nature. Gone are the days when the military was a possible escape from criminal prosecution. Prior to entry into the military, an initial screening process is conducted in an attempt to minimize the likelihood of receiving recruits who are disciplinary problems or who may become security risks.

What‘s more, there are some legal situations, including domestic violence, which may exclude a potential recruit from the ownership and use of firearms. Consequently, the recruit would not be able to perform job functions requiring the use of weaponry.

Military recruiting offices may run background checks on potential recruits, including police and court checks. It is best to disclose any legal situation, past or present, up front. Failure to fully disclose may itself be grounds for denial.

During the interview process, the recruiter will ask about arrests, current or dismissed charges or convictions, as well as probation, incarceration or parole periods. In addition, they will ask about juvenile criminal histories, including proceedings that were either sealed or expunged. They will even ask about traffic violations.

In some cases, a waiting period may be required before a recruit can enlist. In other situations, a waiver can be requested that might permit enlistment despite the potential disqualification. Each applicant is considered on a case by case basis.

Each branch of the armed forces may have slightly different regulations; however, some of the regulations that the U.S. Army follows involve:

-€¢ considering an unpaid paid parking ticket a disqualification as a pending charge;

-€¢ considering multiple charges for the same event individually;

-€¢ requiring a waiver in several situations regardless of how the case was decided, including domestic violence situations and serious criminal misconduct, even when the case was decided in the potential recruit‘s favor;

-€¢ discharging anyone who conceals a legal situation that requires a waiver, considering this “fraudulent enlistment”.

In situations where a waiver may be permitted, it is up to the applicant to provide proof that they have overcome the disqualification and that being accepted would be in the best interest of the military. Court documents, evidence of rehabilitation and even letters of recommendation may be required.

There are certain legal disqualifications that cannot be overcome by a waiver. Some of these include intoxication at the time of application, ongoing alcoholism or drug abuse and a history of psychotic disorders. However, recruiters are more than willing to sit down with an applicant and review any potential legal disqualifications. Again, each applicant is considered on a case by case basis.

DISCLAIMER

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party‘s home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party‘s future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

 In every criminal domestic violence case such as battery or assault on a household member, the court will issue a no-contact order.

Penalties are Harsh for Violation of No Contact Order

The no-contact order prohibits contact between the defendant and the alleged victim. There can be very harsh penalties for violation of the no-contact order.

Violation of the no-contact order can result in a bench warrant for violation of the conditions of release. In the alternative, the judge may order a hearing to review the conditions of release.

The judge can revoke the conditions of release and take the defendant into custody pending trial. The violation typically also results in new charges for the violation of the no-contact order. Repeated violations can result in felony charges.

The Wishes of the Alleged Victim Not Necessarily Determinative

Due to the severity of the possible consequences for violating a no-contact order, it is highly inadvisable to violate the order. This is the case even when the alleged victim wants contact. The fact is that the alleged victim will frequently want contact following domestic violence charges.

However, judges are highly intolerant of violations of the no-contact order no matter what the wishes of the alleged victim. To avoid the wrath of the judge, the defendant must get the no-contact order lifted.

Motion to Modify Conditions of Release

To do this, the defendant must file a motion to modify the conditions of release to allow contact between the parties. The alleged victim must be present at the hearing on the motion to modify the conditions of release. Neither the court nor the prosecutor will allow modification in the absence of the alleged victim.

This can be a tricky situation. Cases where the alleged victim wants the no-contact order lifted typically involve very minor incidents. Frequently there was no domestic violence at all which may be why the alleged victim is so anxious to resume contact. The alleged victim in many of these cases called the police in error or for illegitimate reasons.

As a result, alleged victims in these cases are often very nervous about going to court or speaking with the prosecutor about the case for fear of reprisals for making a false police report. And in essence, in order for the no-contact order to be lifted, the alleged victim must say that he or she does not fear harm from the defendant. One would think that this strongly suggests that no domestic violence occurred.

Prosecutors Not Particularly Sympathetic to Wishes of Victim

Unfortunately, prosecutors do not necessarily see it this way for many legitimate reasons. Then there are those that will not let go of a case no matter what the alleged victim says, even when he or she says unequivocally that there was no domestic violence.

Some prosecutors will simply assume the alleged victim is lying. Instead, these prosecutors that will take the opportunity at the hearing on the motion to modify conditions of release to insist that the alleged victim cooperate in the prosecution of the case.

It is therefore very important to know the prosecutor in the case before filing the motion to modify conditions of release. Many, if not most, are very reasonable with no time or inclination to prosecute baseless cases.

With these issues in mind, the motion hearing is worth pursuing and in some cases may even result in dismissal of the charges. With overly enthusiastic prosecutors, it may be both pointless and even unwise to file the Motion.

There can be both civil or criminal domestic violence no-contact orders against an accused.

Violation of either the Family Violence Protection Act Order of Protection or a no-contact order in a criminal domestic violence action is very serious.

Violation of the Order of Protection can result in a number of penalties including orders of contempt and bench warrants. Violation of a no-contact order in a criminal domestic violence action results in additional criminal charges.

Repeated or aggravated violations can result in aggravated stalking and other felony charges.

Unfortunately, these results may occur even in cases of inadvertent or innocent violations. Innocent violations such as contact through marital or family counseling and/or exchanges of the children can result in criminal charges for violations of the no-contact provisions in criminal cases. Worse yet, charges may result even if the alleged victim initiated the contact.

This often happens when the alleged victim invites contact and then calls the police on contact or upon receiving a text or phone call from the accused. This may happen for any number of reasons.

It may be malicious. At times, it could be that the alleged victim is simply confused or conflicted. The defendant may have a defense to the violation in cases where the alleged victim initiated the contact, but it will not prevent the criminal charges, and the stress and costs associated with those charges.

On many occasions, the alleged victim is confused or concerned about the process. The alleged victim may not want to pursue the case but be concerned about the calls or subpoenas from the district attorney‘s office. Many times, the alleged victim will actually call the accused for advice in these situations.

The alleged victim should be seeking independent legal counsel. The accused should not be talking with the alleged victim at all. Certainly, the accused should not be weighing in on issues related to the alleged victim‘s cooperation in the criminal proceeding.

The accused in these situations should have no contact with the alleged victim. In fact, the accused should have absolutely no contact with the alleged victim under any circumstance when there is an order of protection or no-contact order in place. This includes receiving or returning calls or texts.

The accused should under no circumstances advise or direct the alleged victim on how to proceed in the case. It is not uncommon that the alleged victim solicits the advice from the defendant and then passes the advice on to the prosecutor.

At this point, an aggressive prosecutor may file charges for tampering or intimidation of a witness. Intimidation of a witness may be charged as a 3rd degree felony carrying felony sentencing. This is so even when where the accused is genuinely concerned about the alleged victim and sincerely trying to help.

If an alleged victim is confused about the process or his or her rights in the process, he or she should contact a criminal defense attorney for advice. The reality is that the process can be just as confusing and frightening to an alleged victim as it is for the accused.

This is particularly so in cases that have been blown out of proportion by law enforcement or prosecutors, which at times seems the rule rather than the exception. Unfortunately, alleged victims have little input and no control over the process once it begins.

However, alleged victims do have rights and a criminal defense attorney will be able to explain those rights along with any legal duties on the alleged victim as the process moves along.

DISCLAIMER

In order to protect victims of domestic violence, the New Mexico legislature enacted the Family Violence Protection Act, which authorizes the courts to issue a type of civil restraining order called an Order of Protection. If an Order of Protection is entered, it prevents the person committing the domestic violence or abuse (called the Restrained Party) from having any contact with the victim of that abuse (called the Protected Party). A party that violates the provisions of an Order of Protection may face criminal and civil penalties. In some case, the Restrained Party may also be the victim of abuse by the alleged Protected Party.

The procedure under the Family Violence Protection Act requires that the a person be personally served with the Petition for Order of Protection before an Order of Protection may be entered against him or her. The alleged domestic violence offender must also be allowed to appear at a hearing to answer to the charges in the petition. If a Restrained Party believes that he or she is also a victim of abuse by the person filing the petition, then he or she may file a counter-petition informing the court of that abuse and asking that an Order of Protection be entered against the other party.

A counter-petition for an Order of Protection follows the same basic format as the petition and must be filed before the hearing on the original order of protection is held. If the court finds that both parties have committed domestic abuse against each other, it may enter what‘s called a Mutual Order of Protection, which means that both parties can face criminal and civil penalties for making contact with the other party. However, the court will not issue a Mutual Order of Protection if a counter-petition has not been filed. Thus, if a person is served with a petition for Order of Protection, it is important that they contact a New Mexico Divorce and Family Law Attorney immediately in order to ensure that they understand all of their legal rights, including the right to file a counter-petition.

Albuquerque Attorneys
www.CollinsAttorneys.com