There is a stir in Santa Fe over the fact that two drivers involved in high profile DWI/DUI fatal accidents have kept their driver‘s licenses.

Carlos Fiero, a prominent lawyer and lobbyist in Santa Fe, is accused of vehicular homicide in the DWI/DUI related death of a Santa Fe man outside a popular Santa Fe bar. Scott Owens is accused of driving the wrong way on a Santa Fe road killing several teenagers in a head-one collision.

Both men still have their driver‘s licenses despite the mandatory MVD license revocation under New Mexico‘s Implied Consent Act. MVD and the sheriff‘s office both deny responsibility.

The Sheriff has indicated that the normal Notice of Revocation was not issued along with a DWI/DUI charge because the DWI/DUI charge might have somehow allowed the defendant‘s to walk in and plea guilty to the DWI/DUI charges while escaping the vehicular homicide charges.

Typically, a Notice of Revocation is issued upon arrest of an individual for DWI/DUI following a breath alcohol score or .08 or greater, or a refusal to take breath alcohol test. The revocation is mandatory no matter what happens on the DWI/DUI charges.

Even if the driver wins at trial, the breath score of .08 or a refusal results in the mandatory revocation of the license. Vehicular homicide almost by definition carries with it a charge of DWI/DUI.

As such, the arguments from both MVD and the Sheriff make little sense. In fact, this was probably an administrative error. The sheriff either failed to issue the Notice of Revocation, the notice of hearing did not go out, the hearing was not set within 90 days of the arrest, or the hearing simply was not set at all. MVD hearings are a mere formality for the revocation of a license.

The only way one keeps a driver‘s license under the Implied Consent Act in Mr. Owens‘ or Mr. Fiero‘s situation is by administrative error, which is what appears to have occurred here.

DISCLAIMER

Related Reading:
MVD License Revocation Hearings: Strictly Formality!
DWI/DUI: License Revocation Under the New Mexico Implied Consent Act
Driver‘s License Revocation Almost Certain with DWI Arrest in New Mexico

The 10th Circuit Court issued another remarkable ruling that continues the assault on the rights of individuals to be free of unlawful search and seizure. In U.S. v. Roach (10th Cir. 2009), the court ruled that although a warrant lacked probable cause, the evidence seized during the unlawful search is admissible so long as the officers acted in good faith.

An affidavit was issued in support of the warrant from the federal magistrate. The affidavit failed to establish probable cause that the defendant was a member of the gang under investigation. The affidavit also failed to establish that the defendant even lived at the residence that was to be searched. In fact, the residence was the defendant‘s girlfriend‘s residence.

The unlawful search unsupported by probable cause for the warrant resulted in the seizure of a variety of drugs and firearms. The defendant moved to suppress the illegally obtained evidence. The motion to suppress was denied.

In U.S. v. Roach, the 10th Circuit Court of Appeals upheld the denial of the suppression motion. In doing so, the court acknowledged a warrant should issue only on probable cause. The Court further stated that there must be probable cause to believe that a crime has been committed, the defendant committed the crime and that the place to be searched has some connection to the crime. The court stated that probable cause could not be built upon hunches.

Then despite the very clear state of the law the Court ruled that suppression of the evidence must be refused if the officers executing the warrant relied in good faith on the authorization of the magistrate.

This is pretty remarkable circuitous reasoning clearly directed toward further restrictions on the rights against unlawful search and seizure. After all, did the officers themselves not provide the magistrate with the affidavit upon which the warrant was issued? So the officers are relying upon the magistrate who issued the warrant who relied upon the affidavit provided by the officers. In short, the officers have relied upon their own faulty affidavit which failed to establish probable cause. How can this ever be construed as good faith?

DISCLAIMER

Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment
4th Amendment and the Plain View Doctrine

Many of the Courts and Prosecutors around New Mexico, including Albuquerque and Rio Rancho have Pre Prosecution programs for certain felony offenders. These programs are restricted to first time non-violent, non-drug trafficking offenders.

If you are charged with a non-violent, non-trafficking felony offense, and you have no prior criminal history, you may be eligible for Pre Prosecution Probation. If you are accepted into the program, the charges against you are dismissed, and you are placed on probation for one to two years.

These programs are very beneficial to both the offender and to the State. The program saves the offender from consequences of a felony conviction. The program saves the State the costs of prosecution, supervised probation or imprisonment of qualified first offenders.

The real hurdle to getting into the program for many is that the program requires an admission of guilt or responsibility for the charges. Many individuals have a very hard time with these admissions when they feel that they have been wrongfully accused. The decision is made more difficult by the fact that the admission can later be used against the individual if admission to the program is denied or if the person is expelled from the program for a violation of its terms.

Once admitted, the person must comply with all the conditions of the program including community service, full time employment or school, random drug testing, regular reporting to the probation officer, a prison tour, and payment of all probation costs and drug tests costs. A person faces expulsion from the program for violation of these terms. In addition, a person can be expelled for any felony charge, a charge of DWI/DUI or a charge of Domestic Violence.

Though the terms may seem harsh to some, they are far less severe than a conviction or regular probation. The benefit of escaping a felony conviction for most makes the program worth doing.

DISCLAIMER

Related Reading:
Felony Criminal Process: Pre-Indictment
The Criminal Process: Pre-Indictment Criminal Investigations in New Mexico
Pre-Indictment Delay: How Long is Too Long in New Mexico?

Domestic Violence in Albuquerque is taken very seriously. The District Attorneys in Albuquerque, and many others throughout New Mexico have a very strict policy against dismissing domestic violence cases no matter how weak the evidence.

In fact, they rarely dismiss a domestic violence case even when it is perfectly clear that there was no act of domestic violence committed.

This position seems unreasonable to most, particularly those caught up in this policy. The policy is extremely frustrating for those wrongfully accused and forced to endure a wrongful prosecution.

Often times, even the alleged victim suffers the severe financial and emotional consequences of these policies. In short, a domestic violence proceeding is extremely stressful, and a even just the charge of domestic violence can have significant consequences.

This is true for U.S. citizens. The consequences for non-citizens can be disastrous. A conviction for domestic violence can result in deportation and inadmissibility of non-citizens.

There are few options for domestic violence cases. Typically, the most a district attorney will offer is Early Intervention Program. This program ultimately results in a dismissal. However admission to the program requires an admission of responsibility. Some judges require an admission of guilt.

These admissions can trigger the immigration consequences of deportation and inadmissibility. As a result, Early Intervention Program is probably not an option for the non-citizen. An admission of guilt is simply not an option for the non-citizen.

Often, the only option for the non-citizen is a trial. And any trial carries risks due to the unpredictable nature of jury trials, or bench trials for that matter.

If you are not a citizen and you are facing domestic violence charges, you need to be very careful about taking any kind of plea. If you have the resources, you should seek the assistance of both a criminal attorney and an immigration attorney so that you can understand and weigh all of your options.

Be careful, or you may feel the fleeting joy of what is seemingly a beneficial outcome of your case, as you soon learn that you are now subject to deportation.

DISCLAIMER

Related Reading:
Immigration Consequences: Deportation for Minor New Mexico Criminal Offenses
Federal Criminal Immigration Cases Reach Record High
Supreme Court Provides Some Relief from Harsh Immigration Consequences of Petty Drug Offenses

The New Mexico Supreme Court in State v. Ochoa clarified the rights of privacy in a car. The New Mexico constitution allows for New Mexico courts to expand on the rights against unlawful search & seizure afforded under federal law.

Under federal law, there is a lower expectation of privacy once a person enters into an automobile. The justification for the lower level of privacy in an automobile under federal law is that the inherent mobility of an automobile creates greater need for an immediate stop to prevent the loss of evidence.

New Mexico acknowledges the reasoning but rejects the conclusions of the U.S Supreme Court in Whren. Instead, Ochoa states that warrantless searches are per se unreasonable. The State bears the burden of proving the stop and the ensuing search were reasonable.

The Court in Ochoa explains that the greater protection from unreasonable search & seizure in an automobile is a distinct characteristic of the laws of New Mexico. Ochoa explicitly rejects the suggestion under Whren that a person‘s expectation of privacy is lessened in a car.

Finally, the court stated that though there are exceptions to the warrant requirement, the same standard requiring exigent circumstances to conduct a warrantless search are present in a car as in a person‘s home. Exigent circumstances justifying a warrantless search exist only where delay in obtaining a warrant will jeopardize the legitimate interests of law enforcement.

A mere hunch as present in Ochoa is simply not enough.

DISCLAIMER

Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
Evidence Seized Under the Pretext of a Traffic Stop is Inadmissible
Your Home is Safe from Unlawful Search & Seizure in New Mexico

It is unlawful in New Mexico for a police officer to stop you under the pretext of a traffic violation for the purposes of investigating another unrelated crime.

The law of New Mexico goes further in protecting its citizens against unlawful search and seizure under these circumstances than federal law under the U.S. Supreme Court decision of Whren v. United States.

Under Whren, it is allowable for a police officer to stop someone under the pretext of a traffic stop in order to investigate them for something entirely different, such as possession or distribution of narcotics. New Mexico through State v. Ochoa recognizes the danger of allowing such searches.

In the Ochoa case, the police officer suspected an individual of possession of narcotics. He lacked any verifiable proof, and he lacked a valid warrant to search the vehicle. Due to his hunch, and despite the lack of a warrant or other evidence of possession, he called the vehicle in on a traffic violation, and the car was stopped by another officer.

Indeed, there were drugs in the vehicle.

The Court in Ochoa recognizes that due to the huge volume of possible traffic offenses, we are all in violation of at least one traffic law at any given time. Allowing a police officer to stop someone to investigate an unrelated crime under the pretext of a traffic violation would basically nullify our rights against illegal search and seizure while in our cars. We would be at the mercy of the whim of any particular officer while in our vehicles.

Police officers would be free to search our vehicles at their leisure since they would need only articulate any one of hundreds of possible traffic violations. It would not take much of an imagination to come up with a reason to stop a vehicle. There would be no protection at all from the search of our vehicles. Every citizen, both guilty and innocent, would be subject to abusive police practices. The right to privacy in our vehicles would have little meaning.

Fortunately, the Supreme Court of New Mexico recognized the potential for abusive police practices under Whren. The court laid out some guidelines. The Court in Ochoa stated that in determining whether or not the stop was pretextual, the Courts should consider the totality of the circumstances, the credibility of witnesses, and the weight of the evidence.

The totality of the circumstances includes a consideration of the both the objective reasonableness of the officer‘s actions and the subjective intent or what the Court described as the “real reason” for the stop.

The burden of proving pretext is on the defendant. However, if it is found that the stop was not reasonable from its inception, any evidence discovered during the illegal stop will be excluded.

DISCLAIMER

Related Reading:
Pat-Down Search in New Mexico is a Protective Search for Officer Safety Not a Search for Evidence
Unlawful Search & Seizure Under the 4th Amendment
Your Home is Safe from Unlawful Search & Seizure in New Mexico

In New Mexico, a person has a right to defend himself and his home against harm. The long cherished rights of self-defense are clearly established in New Mexico under the State‘s Uniform Jury Instructions.

New Mexico General Jury Instruction on Self-Defense UJI 14-5190 states that “A person who is threatened with an attack need not retreat. In the exercise of his right of self defense, he may stand his ground and defend himself.” New Mexico UJI 14-5180, related to defense of one‘s property, states that a person may use force that he deems reasonable and necessary to defend his or her property.

Of course, the issue will be whether a jury believes the force was reasonable and necessary.

The issue of self-defense will certainly be an issue in the case reported yesterday about the Johns Hopkins University Student who killed an apparent burglar with a samurai sword. The burglar had broken into the student‘s apartment where he lived with several other students. Upon being confronted by the students, the burglar lunged at the students whereupon he was struck down by the samurai sword.

There is no jury instruction in New Mexico dealing with the flair or style in which one defends his or herself. It seems that this cannot be counted for or against you. So the use of a samurai sword should be deemed irrelevant without more. The Uniform Jury Instructions would seem to indicate that the student not be charged.

Unfortunately, there is more to it than that and it is possible that the student will be charged with something, and something quite serious such as homicide or intentional manslaughter, and it will be left to him to assert his defenses.

In New Mexico, the outcome would likely be much the same. Fortunately, the student will be armed with the long standing and rather sacred right to defend oneself and one‘s home from harm.

DISCLAIMER

Collins & Collins, P.C.
Albuquerque Attorneys

Domestic Violence can be very serious, and often it requires immediate law enforcement intervention to protect the parties. The police, the courts and prosecutors take it very seriously as well.

Often, however, the person making the call does not realize how seriously it is taken. It happens all the time. During the heat of an argument, one of the parties calls the for a any number of reasons other than a real threat to his or her safety.

Frequently, there is no violence, threats, or harm of any kind other than hurt feelings. No act of domestic violence has in fact occurred under the Statutory Definitions of Domestic Violence in New Mexico. The party calling the police has called for the wrong reasons whatever those reasons may be.

Immediately, the caller realizes the mistake that he or she has made. Typically, the other party is arrested. On occasion, the caller is arrested. Inevitably, somebody is arrested. Police officers do not make courtesy calls for domestic disputes. They don‘t show up to help the parties talk out their problems.

Somebody is leaving the home in handcuffs!

It often does not matter that the caller recants sometimes begging the police not to arrest their partner or spouse. It doesn‘t matter later when the caller contacts the prosecutor explaining that he or she does not wish to prosecute.

The criminal justice system has been set in motion and the couple is in for a long, stressful and often expensive ride.

I get the call all the time where my client explains that his or her partner does not wish to pursue the charges. In fact, these are generally the first words from my clients mouth in cases of domestic violence.

Despite the lack of reason or rationality, and even in the face of clear evidence that there was no domestic violence, prosecutors generally will not drop the charges. Instead, my client and his or her partner or spouse must endure the long and often frustrating criminal justice process as the case makes its way through the system.

This is the bad news. The good news is that eventually these types of case generally get dismissed. In the end, the prosecutor cannot prosecute a case without a cooperative victim. Typically, these cases will get dismissed due to the refusal or failure of the alleged victim to appear in court.

The prosecutor can, and will in serious cases of domestic violence, subpoena the victim to court. However, if it does go to trial, and the victim testifies that there was no act of domestic violence, then the client will be found not guilty.

The problem is that this process takes up to 6 months before the case is finally dismissed or taken to trial.

In the meantime, the client and the partner or spouse must suffer the emotional and financial stresses of court. Worse yet, the parties may be prohibited from contact during this entire time period placing enormous financial and emotional strain on the parties and their family.

So what is the lesson here? Don‘t call the cops unless you really need them. If you need marital counseling, get it. Cops are a very poor and expensive alternative to counseling.

DISCLAIMER

Related Reading:
New Mexico Domestic Violence Laws
Collateral Consequences of Domestic Violence Findings Can be Worse than Criminal Penalties
Conditions of Release on Domestic Violence Charges in Albuquerque

In the past, the federal government did not recognize medical marijuana laws in the 13 states that now have such laws. The result was that the federal government would prosecute aggressively those folks engaged in medical marijuana distribution despite the fact that their state allowed it. Attorney General, Eric Holder, quietly has announced that the federal government would no longer engage in these practices.

Instead, the federal government will now respect the laws of the states and will not preempt local law with federal drug policy. New Mexico and 13 other states have breathed a sigh of relief as their citizens can now rely on the law in their state.

New Mexico now has the first state-licensed medical marijuana farm and distributor. The law has been up and running for 2 years allowing medical marijuana in New Mexico. However, the state has moved cautiously awaiting the announcement of the new production and distribution program.

Despite its youth, the program has been hugely successful. The farm cannot keep up with demand. The farm is generating substantial revenue for the state helping to relieve the enormous budgetary strains that the state now faces. Yet the beat goes on with police and prosecutors continuing to prosecute simple possession of marijuana cases and possession of paraphernalia cases. Lives continue to be ruined through the criminal justice system as the State carves out a cottage industry in the production and sale of marijuana.

DISCLAIMER

Related Reading:
Reclassification of Marijuana Possession: Is it Enough?
A Surprising Source of Reason in the Marijuana Debate
Marijuana Use Accepted – Possession of Marijuana is Still Aggressively Prosecuted

The DWI Resource Center has utilized six years of crash data to map DWI/DUI hotspots around Albuquerque. The mapping technology identifies frequency, locations, time periods, dates, days of the week, and even holidays to determine the highest DWI/DUI risks for any particular day.

Law enforcement representatives are very excited about the potential for the technology for identifying DWI/DUI drivers. Law enforcement plans to use the data to set up DWI/DUI checkpoints in the near future.

Though the mapping technology has not been fully implemented, 12 New Mexico agencies have begun utilizing the program in the past month.

The 10 worst intersections over the Labor Day weekend have been identified and published illustrating the applications of the technology:

1. Wyoming Blvd, NE & Constitution Ave, NE
2. San Mateo Blvd, NE & Pan American East Highway, NE
3. Griegos Road, NW & 2nd St., NW
4. Pan American East Highway, NE & Montgomery Blvd, NE
5. Pennsylvania St, NE & Montgomery Blvd, NE
6. Irving Blvd, NW & Coors Blvd, NW
7. San Mateo Blvd, NE & Montgomery Blvd, NE
8. Louisiana Blvd, NE & Central Ave, NE
9. Wyoming Blvd, NE & Menaul Blvd, NE
10. Osuna Rd, NE & Jefferson St, NE

You can bet that there will be a DWI/DUI checkpoint at these intersection in the weeks to come. DWI/DUI in Albuquerque is taken very seriously in . The mapping technology will continue to identify other high risk areas.

As the technology and its use is perfected, it will be very risky to hit the road after a few drinks. Driving drunk will require a great deal more strategic planning for the drunk driver. Unfortunately, this sort of foresight is often lacking while under the influence of alcohol.

In short, it‘s not worth the risk. Don‘t drink and drive. The Consequences of DWI/DUI conviction are just too great. And the risks of detection just got higher.

DISCLAIMER

Related Reading:
U-Turn to Avoid DWI/DUI Checkpoint Creates Reasonable Suspicion for a Stop
DWI Roadblocks Growing in Frequency in New Mexico and are Difficult to Challenge
Driver‘s License Revocation Almost Certain with DWI Arrest in New Mexico