Legalization of marijuana is picking up steam in California. It is expected that there will be enough signatures to get the measure on the ballot in 2010.

Possession of marijuana remains a crime under federal law. Possession of marijuana remains a crime in New Mexico, classified as possession of a controlled substance.

The police in New Mexico continue to make arrests for marijuana. Likewise, they continue to allege intent to distribute for relatively small amounts of marijuana.

All the while the State of New Mexico continues to move forward with its groundbreaking medical marijuana program. There has been a shortage of medical marijuana. There has to date been only one licensed grower and distributor.

There are currently 25 applications for non-profit licenses for the production and distribution of medical marijuana. Seven of these applications have been forwarded to the New Mexico Department of Health Secretary Alfredo Vigil.

There is bound to be a clash between the States of New Mexico and California and the Federal Government. The U.S. Supreme Court also has ruled that federal law enforcement agents have the authority to enforce and prosecute the federal laws against the production, sale and possession of marijuana even against state sanctioned programs.

It is unclear whether the federal government will be able to force the cooperation of state and local governments in these activities. Without the assistance of state and local law enforcement, the federal government would be hard pressed to enforce the federal laws in California, a state of 40 million.

The numbers are telling. In 2008, there were 847,000 marijuana related arrests. Only 6300 of these were made by federal law enforcement, representing less than 1% of the total.

It remains to be seen if New Mexico will follow the lead of California. Or will limit the legal use of marijuana to medical purposes thereby continuing to criminalize a harmless and common activity.

The harm to otherwise law-abiding citizens goes well beyond the criminal penalties, which can be fairly severe in the case of possession of 8 ounces or more, which is classified as a 4th degree felony, and possession with intent to distribute which is at a minimum a 4th degree felony. Conviction can impact not only employment, but education since some convictions carry with the disqualifications for federal student loans or other aid.

DISCLAIMER

The 10th Circuit Court of Appeals reinforces the long held and cherished 4th Amendment right against unlawful search and seizure in the unlawful intrusion by police into an Albuquerque home.

In Manzanares v. Higdon, Albuquerque Police officers came to the home of the Defendant Manzanares for the purpose of investigating Manzanares‘ co-worker in a rape case.

The Albuquerque Police Officers first arrived at the home of Manzanares at 5:50 AM in the morning. From the beginning, Manzanares was very cooperative with the Albuquerque Police officers, allowing them into them into his home, and providing helpful information into the identify and location of the alleged rapist.

The police continued with the interrogation for hours on end until finally Manzanares asked that the police leave his home. The police refused to leave, instead handcuffing Manzanares as they continued to interrogate him.

Manzanares brought a civil lawsuit against the police under the 4th Amendment for Illegal Search & Seizure. The jury ruled in favor of Albuquerque Police Officer Higdon on all counts.

Manzanares filed a Motion of Judgment as a Matter of Law. This Motion was denied by the trial court. Manzanares filed an appeal to the 10th Circuit Court of Appeals. The 10th ruled in favor of Manzanares that his 4th Amendment rights were violated as a matter of law.

The police officers argued that officers argued the encounter constituted an investigative stop and that his detention was needed to prevent his interference with the investigation. The Court was not persuaded putting great emphasis on the fact that the seizure occurred in Manzanares home.

The Court recognized that Manzanares consented to the entry of the police into his home. However the court stressed that his consent could be withdrawn at any time. The refusal of the Albuquerque Police officers to leave once consent was withdrawn amounted to an illegal arrest without probable cause in violation of the search and seizure clause in 4th Amendment.

The Court emphasized the sanctity of the home stating, ” It has been clear for nearly thirty years that a warrantless entry into a home…is presumptively unreasonable. The Supreme Court has consistently reiterated the famous refrain that a man‘s home is his castle and has preserved the home as the center of the Fourth Amendment‘s protections.”

The court found that reasonable police officers would have recognized that their refusal to leave upon withdrawal of consent constituted a seizure. There was no warrant, no probable cause to believe a crime had been committed, and no extraordinary circumstances to justify their continued presence in Manzanares‘ home against his wishes.

Once his consent to their presence was withdrawn, their refusal to leave was a violation of the 4th Amendment. This means you too have this right.

DISCLAIMER

Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest.

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

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls.

Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant‘s phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant‘s attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant‘s Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody.

The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

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

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington.

The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.

DISCLAIMER

The International Drug Policy Reform Conference will be held in Albuquerque, New Mexico on November 12-14. The conference was held in Albuquerque in 2001. It returns because the presumably New Mexico is a “beacon of reform” because of its innovative Good Samaritan laws passed to prevent fatal overdose, and its medical marijuana initiatives.

There will be a variety of drug law reform advocates including doctors, lawyers, activists, educators and law enforcement. Much of the discussion will center on the recent tide of support for the legalization and regulation of marijuana.

The War on Drugs has clearly failed. The War on Drugs destroys the lives of otherwise productive, law-abiding citizens. It also enriches and empowers the drug cartels. The War on Drugs has never appreciably affected drug use.

Instead, it has placed a huge tax burden on federal, state and local governments. The enforcement, prosecution and punishment of drug use costs the country billions upon billions of dollars per year.

This is in fact probably the reason for the new enlightened views on legalization. With governmental budgets devastated by the ongoing recession, necessity has led to enlightenment.

It remains to be seen whether Albuquerque will live up to the honorary title of “beacon of reform.” Neither the Albuquerque Police Department nor the District Attorney in Albuquerque have gotten the memo. Instead, marijuana possession continues to be prosecuted quite aggressively.

The potential penalties for possession of marijuana in New Mexico remain severe. Possession of marijuana in any quantity is still considered possession of a controlled substance. Misdemeanor possession of less than 8 ounces carries up to one year in jail.

Felony possession of 8 ounces or more carries criminal penalties of up to 18 months in prison. Possession of more the 30 grams carries deportation consequences. A second offense of less than 30 grams carries deportation consequences.

Hopefully, someone from City of Albuquerque will attend the International Drug Policy Reform Conference. They should at least be aware of their purported leadership role in this important trend.

DISCLAIMER

The New Mexico Supreme Court ruled in City of Las Cruces v. Rogers that the City of Las Cruces has no authority to regulate DWI/DUI on private property under the City‘s DWI/DUI Code.

In order to so regulate drinking and driving on private property, the City would have to gain written consent from the property owner. In the alternative, the driver should be charged under the New Mexico DWI/DUI Statute which is customarily the case.

The driver cannot be charged for DWI/DUI on private property under the City Code.

The facts of Rogers are remarkable. The defendant was in a parking lot of a convenience store where she had purchased cigarettes. The police officer had followed her into the parking lot on the suspicion that she had been drinking and driving.

As the defendant was preparing to drive away, the officer stopped her while she was still in the parking lot. The officer administered field sobriety tests which Rogers failed. Consequently, she was arrested and charged with DWI/DUI.

The Municipal Court dismissed the DWI/DUI Complaint. The city appealed to District Court which ruled that pursuant to City of Rio Rancho v. Young, and Section NMSA §3-49-1(O), the City could not enforce its traffic code on private property absent a showing of express written consent by the owner of the property.

The case wound its way up to the Supreme Court through the Court of Appeals which upheld the District Court ruling.

The New Mexico Supreme Court agreed with the lower court rulings again citing Young and NMSA §3-49-1(O). The Court made the distinction between violations of state statutes and municipal statutes.

Las Cruces had failed to charge the defendant under the State statute NMSA 66-8-102. Instead, the defendant was charged under the city ordinance which the Court agreed could not be done without the written consent of the property owner.

DISCLAIMER

There is a small but growing trend toward the decriminalization of marijuana. Albuquerque and New Mexico, despite taking a lead on medical marijuana, lag behind the trend toward decriminalization.

Governor Arnold Schwarzenegger has indicated that legalization needs to be studied closely. Massachusetts voters approved a referendum decriminalizing marijuana. Denver has passed a law making adult marijuana possession the lowest law enforcement priority.

Other countries have gone much further. Portugal decriminalized all drug possession. The feared spike in drug use never materialized. Several Latin American countries are following the lead of Portugal including Brazil and Colombia, who have called on other countries in the region to follow suit.

Surprisingly, there has been no reaction from the United States government when in years past these trends would have been met with severe diplomatic reactions.

The American people seem to accept marijuana use. Polls have shown that over 50% believe that marijuana should be legalized, taxed and regulated. These folks have it right.

This approach would have numerous positive effects. First, it would bring tax dollars all but bankrupt governments at the Federal, State and local levels. Second, it would reduce the power, wealth and influence of organized crime which is a very serious threat to United States national security. Third, it would save State and local governments huge budgetary waste expended on enforcement, prosecution and punishment of this completely harmless crime. Finally, it would stop ruining the lives of those caught up in these senseless policies.

Despite these trends, and New Mexico‘s forward looking vision on medical marijuana, the State and Albuquerque in particular continue to take a hard stand on marijuana possession.

Marijuana is still considered a controlled substance. Possession of marijuana is classified as possession of a controlled substance. Possession of less than 8 ounces is a misdemeanor, possession of more than 8 ounces is a felony.

Even a charge (without a conviction) for possession of a controlled substance can have devastating consequences to a defendant. A conviction can have many serious consequences beyond even the penal consequences.

New Mexico, and Albuquerque should take the lead here as they have in other areas such as immigration and medical marijuana. The current enforcement policies are barbaric to the those unfortunate enough to be caught in the system, and neglectful of responsibilities to our taxpayers.

DISCLAIMER

Marijuana use in New Mexico and throughout the United States seems be generally accepted. Stories have appeared this month alone on the Today Show, Marie Claire magazine, Variety, and even Forbes depicting marijuana use in relatively favorable light. Forbes described the medical marijuana trend as a step toward the end of prohibition.

Many of our top political figures including Bill Clinton, Barak Obama, Mayor Michael Bloomberg, Arnold Schwarzenegger and even George W. Bush have admitted to smoking marijuana in the past. Yet more than 750,000 people are arrested every year on charges of marijuana possession. New York, where the mayor has admitted past marijuana use, leads the way with 40,000+ arrests each year.

The fact that law enforcement and prosecutors continue to bring these cases at great costs to taxpayers, and often catastrophic costs to the defendant, is disappointing to put it mildly. More disturbing, however, is the racial component of the arrests.

Though Anglos smoke pot at higher rates than blacks or Latinos, and make up the majority of the United States population, the great majority of those arrested for marijuana are black or Latino. In New York, called the marijuana arrest capitol of the world, blacks and Latinos are 87% of those charged.

Possession of less than 8 ounces of marijuana in New Mexico is a misdemeanor. Possession of over 8 ounces is a 4th degree felony.

Most possession charges fall in the misdemeanor category. Though misdemeanor possession my seem to some like a trivial criminal matter, marijuana is stilled considered a controlled substance. Possession of a Controlled Substance in New Mexico carries very serious consequences well beyond the penal consequences.

The trend toward medical marijuana and what Forbes describes as the end of prohibition cannot move fast enough for those unfortunate enough to be arrested for what is pretty well accepted by all a harmless act.

DISCLAIMER

A criminal defendant has a right to confront and cross examine the State‘s witnesses under the 6th Amendment.

This is the chief weapon for domestic violence defendants in Albuquerque and throughout New Mexico. The refusal of the alleged victim to testify is the basis for the great majority of the dismissal of these types of cases.

Unfortunately for defendants, this option may be very limited in the future as a result of the New Mexico Court of Appeals ruling in State v. Soliz.

The U.S. Supreme Court of Crawford v. Washington made the right to confrontation of witnesses more explicit when it ruled that a defendant has a right to confront any testimonial witness. The Court stated that when the witness is unavailable, any out of court testimonial statement made by that witness is inadmissible. The question becomes what is “testimonial”? Crawford set out some guidelines with the basic premise being whether or not the statements were given with an eye toward prosecution of the defendant.

The U.S. Supreme Court in Davis v. Washington set further guidelines on the term “testimonial.” The Court in Davis stated that statements are non-testimonial if they are given with the primary purpose of assisting the police in an ongoing emergency.

They are testimonial when there is no such ongoing emergency, and the primary purpose of the statement is to provide information potentially relevant to a subsequent criminal prosecution.

The New Mexico Court of Appeals in State v. Soliz had an opportunity to address the definition of testimonial witness in a domestic violence setting. State v. Soliz involved a domestic violence call to 911.

Soliz girlfriend was frantic and crying when she told the 911 operator that Soliz had just attacked her, he had fled, he had pursued her with the instrument with which he had attacked her, and he was under the influence of drugs or alcohol.

The Court in Soliz followed Davis fining that the statements by Soliz‘ girlfriend were non-testimonial since made in an emergency situation for the purpose of gaining assistance from the police.

Because they were non-testimonial, they were fully admissible at trial despite her unavailability. In fact, the girlfriend refused to testify or otherwise cooperate in the prosecution of Soliz. This frequently occurs in domestic violence cases.

The ruling in Soliz poses some real potential problems for domestic violence defendants in the future. In essence, Soliz will allow the State to go to trial on the back of a 911 call without the necessity of bringing the victim to trial.

The lack of a victim has in the past been the primary means for getting these cases dismissed. This option is now severely curtailed by Soliz.

DISCLAIMER

Many clients are very surprised when they are charged with DWI/DUI when their blood alcohol level is below the legal standard of .08. In fact, the police regularly arrest these drivers and the District Attorneys, particularly in Albuquerque, routinely prosecutes these “below the limits” cases.

The District Attorney in Albuquerque brings DWI/DUI cases for drivers at .03 or .04. This practice is shocking to the driver who thought that he or she was behaving responsibly.

The New Mexico Court of Appeals has struck one more blow against these well-intentioned drivers in State v. Pickett. NMSA 66-8-102(A) states: “it is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.”

The Court cited approvingly the language in State v. Sanchez which stated “a person is under the influence … if as a result of drinking [the driver ] was less able to the slightest degree…to handle a vehicle…” The court referred to this standard as “impaired to the slightest degree,” a term established in State v. Neal.

The Court stated that in order to convict the Defendant, the State needed only prove that the defendant was less able to the “slightest degree” to safely operate a vehicle. Remarkably, the court allowed in otherwise inadmissible evidence for the determination of impairment to the slightest degree. Though the breath test scores could not be admitted, the test was allowed to be used to show there was alcohol in the defendant‘s system.

Essentially, an officer will be able to make the determination of impairment to the slightest degree at his or her discretion. The officer may conduct field sobriety tests which are horribly subjective, and susceptible to abuse. Then on the basis of what the officer determines weak fields sobriety tests, the officer may then take the blood alcohol tests.

The catch for the driver is that if you refuse, your license is automatically revoked even if you win your trial.

Once the officer determines there is alcohol in your system, and that you performed poorly on the field sobriety tests, he may arrest you and charge you with DWI/DUI. This absolute discretion on the part of the officer is the basis for the below the limits cases that we are now regularly seeing in court at levels as low as .03. And the District Attorney is prosecuting these with the same level of zeal as an aggravated DWI/DUI.

The problem is clear. I think history has shown that it is not a good idea for civil rights or liberty to allow police officers absolute discretion. The potential for abuse is too great.

And though the great majority of police officers are honest and conscientious, there are bad apples as in any profession. A dishonest mechanic is just painful on the wallet. Police officers have the power to destroy lives on what amounts to the most vague possible standard that could be drafted for DWI/DUI.

DISCLAIMER

Related Reading:
New Mexico‘s Impaired to the Slightest Degree DWI Standard Has to Go!
Medical Grounds of Inadmissibility Redefined to Possibly Include DWI
The Problem With Under the Limits DWI Arrests in New Mexico

On every criminal charge filed in Albuquerque or anywhere else in New Mexico for that matter, an Order Setting Conditions of Release will be issued. The Order is pretty standard for the most part.

The Order will prohibit the possession or consumption of alcohol or illegal drugs, the violation of any laws while out on release, driving without a valid driver‘s license, or the possession of firearms or other deadly weapons. Finally, the Order will prohibit contact with the alleged victim(s).

These Orders Setting conditions of release are taken very seriously by the judges throughout New Mexico, and especially in Albuquerque. Violation of the conditions can result in arrest and worse a hold until the date of trial.

The condition that stings the most in domestic violence cases is the Order prohibiting contact with the alleged victim.

Often, the alleged victim does not want to pursue the charges. There are many cases when the alleged victim did not even call the police. Instead, a neighbor may have called in a domestic violence call. Frequently, the alleged victim will flat out explain to the police that nothing happened, and there was no domestic violence.

An arrest is made anyway as a matter of law enforcement policy. The police officer simply will not take the risks of leaving both parties unattended at the scene of a possible domestic violence. There are too many high profile cases where this was done, and one of the parties was badly injured or even killed.

The arrest of course kicks in the criminal process and the no-contact order. The defendant is now prohibited from returning to the home. This places enormous emotional strain on the couple or family. In addition, the financial consequences can be disastrous.

So what should you do? This is a hard question to answer and an even harder decision to make on your part. You can file a Motion to Modify Conditions of Release. This requires both your appearance and the appearance of the alleged victim in court before the judge.

Once the alleged victim appears, the District Attorney, and sometimes the Court, will strongly insist that the alleged victim appear for all future court appearances. The prosecutor may even insist on regular contact between the alleged victim and the prosecutor‘s office. This keeps the alleged victim under the control of the District Attorney and almost insures the alleged victim‘s appearance in Court on the date of trial.

Why is this a problem? Many of the cases described above get dismissed eventually because the alleged victim does not want to pursue the charges, and will avoid the District Attorney to avoid being forced to proceed on questionable or baseless charges.

Once the District Attorney has made contact with the alleged victim, the greater the chances are that the District Attorney will coerce the attendance of the alleged victim even by threat of contempt, or the threat of charges against the alleged victim for making false criminal charges.

Thus, the reluctant alleged victim who knows full well the call to the police and the consequent criminal charges should not have been made will show up for court out of fear of reprisal by the District Attorney for their refusal to cooperate.

Thus, in the end, you are faced with the decision of modifying the conditions of release which on the one hand allows you to legally go home while on the other greatly increasing your chances of a full blow trial.

DISCLAIMER

Related Reading:
New Mexico Domestic Violence Laws
Domestic Violence Early Intervention Programs in New Mexico
Domestic Violence Calls in New Mexico: Someone is Going to Jail

Collins & Collins, P.C.
Albuquerque Attorneys