Saturday, September 24, 2011

Driving While Intoxicated (DWI) and Driving Under the Influence (DUI) in New Mexico

Here is the post I was talking about regarding driving while intoxicated (DWI) and driving under the influence (DUI) in New Mexico. My law partner wrote this article and I thought it was a good follow up to the last article, and this one gives a great overview of what to expect with DWI or DUI charges.

As an Albuquerque criminal lawyer, I know that the crime of Driving Under the Influence (DUI) in New Mexico is a serious charge. In New Mexico a blood alcohol content (commonly referred to as BAC) of greater than .08% or more makes it illegal to operate a motor vehicle. For commercial drivers that limit is further reduced to .04%. A conviction for a first offense can result in significant fines and even jail time depending on aggravating factors. Examples of aggravating factors include:

  1. Being found to have a blood alcohol content of .16% or greater (two times the legal limit)
  2. Refusal to submit to chemical testing
  3. Causing injury to another human being while being unlawfully under the influence of drugs or alcohol
Note that in addition to the penalties listed in the DWI offense chart on our website; aggravating factors in New Mexico carry mandatory jail time, even for a first DUI.

Separate from the criminal sanctions listed above, penalties involving a person’s right to drive are handled through separate Motor Vehicle Department (MVD) hearings. When a person is arrested for a DUI they receive a “Notice of Revocation”. The accused person then has 10 days to request a hearing to contest this revocation. Upon making this request the license will be held within 90 days from the date of arrest. The hearings are conducted at law enforcement facilities and are presided over by a hearing officer.
The issues at this administrative hearing are limited to:

  1. whether or not the hearing was held no later than 90 days after the notice of revocation
  2. whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs
  3. whether the person was arrested
  4. whether or not the person refused to submit to a test upon request of the law enforcement officer (aggravating factor)
  5. the law enforcement officer advised the driver that the failure to submit to a test could result in revocation of the person's privilege to drive; or
  6. whether:
    1. the chemical test was administered pursuant to the provisions of the Implied Consent Act; and
    2. the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths (8/100’s) or more if the person is 21 years of age or older, four one hundredths (4/100’s) or more if the person is driving a commercial motor vehicle or two one hundredths (2/100’s) or more if the person is less than 21 years of age.
The standard of proof that the State must meet for a revocation hearing are much lower than that of the criminal proceedings. The State need only provide a preponderance of the evidence rather than prove beyond a reasonable doubt, making it that much more important to put forth all possible defenses. This can many times be accomplished with the aid of a competent Albuquerque DUI attorney.

Monday, September 5, 2011

Misdemeanor Cases and Your Criminal Defense Lawyer

The following is an article my law partner, who is a Albuquerque criminal defense lawyer, wrote. If you need more information about criminal defense, see our criminal defense practice page on our website. Stay tuned because I will also be posting an article that my other law partner, who is an Albuquerque dwi attorney wrote over the topic of DUI and DWI.

There are two main categories or classifications of crimes: Misdemeanors and Felonies. Misdemeanor charges are less complicated and less serious than felonies, but that does not mean that they can simply be disregarded. Misdemeanor convictions will remain on your criminal record forever and could possibly damage future employment prospects, credit ratings and even your personal reputation. Ideally, you are in a position to be able to afford to hire a criminal defense attorney, enabling you to employ the best defense lawyer in your community. If, however, you cannot afford a private attorney, the court will appoint a public defender to represent you and your interests.

The misdemeanor citation given to you will tell you when you must appear in court. DO NOT disregard this notice. Failure to appear on time for your court date could potentially result in the issuance of a warrant for your arrest. Once you have either hired your defense attorney or one has been appointed to you, you will want to provide any and all information you have regarding your case. The decision to leave out the smallest of details or misrepresent the truth in any way could possibly have disastrous results for you in the long term. Even though a detail or fact may seem small or insignificant to you, your defense lawyer might be able to use that detail in his or her constructed strategy of defense.

Your defense lawyer will serve as your defender and your guide through the labyrinth of the legal system. He or she is trained in the rules of procedure, evidence and courtroom practice. It is precisely this heightened expertise that you are paying for. Your lawyer can dispute evidence or testimony presented against you in court or through statements or depositions. Likewise, your defense lawyer can create a comprehensive strategy for your defense, focusing on jury perceptions, media relations, damage control, and a number of elements of a trial that are often not considered by members of the greater public; most of these higher end strategies are typically used for more serious crimes however. If you are truly innocent, it is your lawyer that is best suited to assist you in show the judge or jury that you are innocent.

The situation can be more clouded if you are actually guilty of the charged misdemeanor. Your defense lawyer will possibly even encourage you to plead guilty if there is an offer for a reduced charge or reduced sentence. That being said, because misdemeanor charges are generally less serious and carry less extensive punishments, these settlement agreements are usually made outside of court and before your actual trial.

It is certainly your option to not hire a private attorney and to not accept a court appointed public defender for your misdemeanor case. This is generally referred to as defending your case “pro se”. However, because you, the accused may not have sufficient experience, information or knowledge about the law, the charges and the procedures of the court, this is not the suggested path to take for most defendants in most situations. Hiring a good defense attorney, even for your less serious misdemeanor charges, may save you time, money and perhaps even your liberty.

Monday, August 15, 2011

New Mexico Lemon Law - Consumer Rights

The other day my aunt had asked me about how New Mexico’s lemon law works. As an Albuquerque business lawyer, I figured that this subject would be of interest to many consumers who have purchased a vehicle in this state. Believe it or not there exists a lemon law with regard to both used and new vehicles. The lemon law comes from the Motor Vehicle Quality Assurance Act (NMSA 1978, 57-16A-1 to 57-16A-9).

With regard to newly purchased vehicles the lemon law applies to new and demonstration vehicles sold by New Mexico car dealers. Basically the law applies to force car dealers to repair all defects which have a substantial impact on the market value and of course the use of the car. The time period to which the law applies is the shorter period of either one-year after which the consumer takes possession of the vehicle, or when the manufacturer’s warranty expires. Basically the law will allow a consumer to be eligible for a replacement or repurchase under the law, if during the one-year period the car has been at the dealership for a total of thirty days or more (this is cumulative), or the car has the same problem repaired four or more times.

NMSA 1978, 57-16A-3.1 applies to used vehicles, and applies to vehicles sold by a New Mexico car dealer. Car dealers must include disclosure of the lemon law in the contract for the sale of the vehicle otherwise the purchaser may cancel the contract. The law provides that used vehicles cannot be sold “as is”; any commercial lawyer would recognize the “as is” language as a disclaimer of warranty, but it does not apply in this context. Additionally the law creates a warranty on the vehicle for the time period of whichever occurs first between 500 miles or 15 days. Once the consumer becomes aware of a problem that limits the use of the car, he or she must return the vehicle to the dealer before attempting to have the car repaired. Failure to follow this key point will make the lemon law inapplicable to the dealer; the essence of this is to give the dealer a chance to repair the problem. The car dealer can charge up to $25 for the first two attempts to repair the vehicle. If a dealer refuses to fix a problem that occurs within the short warranty period, then the consumer can cancel the contract, is entitled to get their money back and if a car was traded in, the consumer can get their old car back. Lastly and obviously, the law does not apply when the problem occurs as the result of abuse, off-roading, racing, failure to maintain required fluids or lubricants and other such operator errors. If you have questions about whether the lemon law applies to your situation, contact one of our Albuquerque attorneys.

Friday, August 5, 2011

Bankruptcy Common Questions: Student Loans

As a Albuquerque bankruptcy attorney I am often asked if student loans can be discharged by filing a bankruptcy. Generally the answer is no, because while it is possible to have student loan debt discharged, it can be very difficult to get the debt discharged. At one time, student debt was treated like other types of unsecured debt, meaning it could be discharged. In 1998 the bankruptcy code was revised and made it so that student loan debt is presumed to remain with the debtor after a bankruptcy (or in other words there is a presumption that student loan debt will not be discharged). The change was enacted in Section 532(a)(8) of the bankruptcy code and was meant to address abusive student debtors and to ensure solvency of student loan programs. There was a point in time where debtors would file bankruptcy specifically to avoid paying their student loans. In 2005 the bankruptcy code was changed again which made private student loan lenders treated like government loans, meaning there is no longer an important distinction on who lent the funds.

In order to rebut the presumption regarding student loan debt, the debtor must initiate an adversary proceeding, and claim that the student debt presents an undue hardship on the debtor and the debtor’s heirs. The question then becomes whether the debtor has an undue hardship. There are a variety of tests used to determine undue hardship. The most widely used is the Brunner test first articulated in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395, 396 (2d Cir. 1987), and requires the debtor to prove:

“(1) that the debtor cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.”

Under the test, if the court finds that one of the elements is not met, the student loan debt will not be discharged. Another test used in the 8th circuit is the totality of the circumstances test as articulated in Andrews v. South Dakota Student Loan Assistance Corp.(In re Andrews), 661 F.2d 702, 704 (8th Cir.1981):

“(1) the debtor's past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor's and her dependent's reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor's reasonable future financial resources will sufficiently cover payment of the student loan debt-while still allowing for a minimal standard of living-then the debt should not be discharged.”

The 10th circuit, of which New Mexico is included, has adopted the Brunner test, but noted that the traditional test has been used to disallow the discharge of student debt to even those in the worst of circumstances; and try to apply an approach that is less rigid than the traditional Brunner test. Now while the Brunner test is not insurmountable, it certainly requires that the debtor be experiencing dire circumstances. If you have more questions about what types of debt are or are not dischargeable in bankruptcy, you should contact a bankruptcy lawyer in your state.

Monday, July 25, 2011

Insurance Coverage – The Duty to Defend and The Duty to Indemnify

Because insurance is nothing more than a contract, certain terms can be negotiated away, and certain terms may not exist in a particular insurance policy. Because insurance policies are contracts, and can be very complicated, an attorney should be used to review the policy to make sure it provides adequate coverage. Insurance policies typically come with contractual obligations in the form of a duty to defend, a duty to indemnify, and a duty to pay claims in good faith; failure to do the latter can make an insurance company subject to a bad faith claim. Many attorneys recognize that often the value of the duty to defend is greater than the value of the duty to indemnify. Courts are typically liberal in finding coverage for the duty to defend. With regard to the duty to defend, New Mexico has adopted the following law:

“If the allegations of the injured third party's complaint show that an accident or occurrence comes within the coverage of the policy, the insurer is obligated to defend, regardless of the ultimate liability of the insured. The question presented to the insurer in each case is whether the injured party's complaint states facts which bring the case within the coverage of the policy, not whether he can prove an action against the insured for damages. The insurer must also fulfill its promise to defend even though the complaint fails to state facts with sufficient clarity so that it may be determined from its face whether or not the action is within the coverage of the policy, provided the alleged facts tend to show an occurrence within the coverage.” America Employers' Ins. Co. v. Continental Casualty Co., 85 N.M. 346, 348, 512 P.2d 674, 676 (1973) (quoting 1 Long, The Law of Liability Insurance § 5.02 (1973))

Because an insurance policy is a contract, a duty to defend is found by comparing the four corners of the complaint against the four corners (this is a contract law term meaning all aspects of the document) of the insurance policy. It must be noted that the duty to defend is distinct from the duty to indemnify; because while the duty to indemnify may not apply in a given case, the duty to defend may be applicable in the same case. The duty to indemnify applies if the event causing damage was covered under the terms of the insurance policy. Like the above case law indicates, the duty to defend can be triggered if there is a question about whether the insurance policy covers the event; meaning that while the duty to indemnify may not actually be triggered, the duty to defend is triggered.

As a business attorney I can appreciate the value of the duty to defend. Litigation can be very expensive and having legal defense included in the insurance contract can save a business or individual from having to pay legal fees out of pocket. The duty to defend is also triggered if the complaint for damages seeks compensation for covered and non-covered injuries. Some states allow insurance companies to stop defense if amended pleadings or discovery indicates facts that show that the harm is not covered within the insurance policy.

Thursday, July 7, 2011

Limited Liability - Business Law

The following is an article I recently published on my law firm website (BFDLawyers). I plan to make several counterpart pieces in my Albuquerque Business Lawyer and Albuquerque Bankruptcy Attorney series. Feel free to visit our website for more information.

Business Attorneys are often asked how limited liability works, because this is often one of the greatest advantages to forming a limited liability business entity (limited liability partnership, limited liability company, corporation, etc). Limited liability basically protects the business owner for the negligence of his or her employees. In other words, the limited liability status of a company does not protect the business owner from liabilities that are a result of his or her personal negligence. Business owners that actually take part in the daily activities of a business should be aware of this fact; because this makes almost as though the business is a sole proprietorship.

Limited liability, on the other hand, is one of the biggest advantages of forming a corporation, or LLC, even if it only protects the business owner from his or her employee’s negligence. While any employee’s misconduct is likely outside the scope of employment, and would not make the business owner liable, the limited liability status is important for protecting the business owner’s personal assets. Failure to form the business properly might result in the business being recognized as a partnership, where the business owners would be joint and severally liable for the business’ debts (including judgments against the business); A Business law expert is useful for ensuring that your business is formed and operated properly.

Clients often wonder what causes court not to recognize limited liability; this is known as piercing the corporate veil. Traditionally piercing the corporate veil is a remedy the court uses after considering certain factors. To avoid the risk of having your company’s limited liability status go unrecognized it is important that the business adhere to corporate formalities. Corporate formalities are those things which are usually done when conducting a legitimate business. This includes adequate record keeping, keeping the business owner’s personal funds separate from the operating funds of the business, acting in accordance with bylaws (for a corporation) or an operating agreement (for a limited liability company) for the business in question, and treating the business’ assets as though they were your own. A Business Lawyer prepares these documents for record keeping purposes and can help ensure that the business is staying compliant. The other thing to avoid is what is called undercapitalization, and is often found where businesses fail to properly maintain adequate insurance coverage in the case of any possible misfortune. The main point here is that the business was not formed as a limited liability entity to avoid potential business debts arising from judgments against the business.

Friday, June 3, 2011

Adequate Insurance Coverage

One thing that I always recommend to clients is that they should always have adequate insurance coverage. Insurance limits one’s exposure to liability and in many cases it is also required by law. It is my experience that client’s usually do not appreciate the importance of insurance until they make a claim or receive a benefit.

Whether you are dealing with a car accident, a medical negligence claim, or even a workers compensation claim there is usually some type of insurance in the mix. Understanding insurance should be in every attorney’s tool kit because whether you are advising businesses or individuals, insurance is generally if not always a must. For example, anyone involved in estate planning can tell you that life insurance and annuities are often used, and certainly recommended for clients that can buy life insurance for little cost. I have met with fairly young clients (mid 30’s) that have children and have a net worth of roughly $250,000; in cases like this life insurance makes sense because it is relatively inexpensive due to the client’s age and is recommended because $250,000 simply is not enough considering the cost of education.

When conducting transactional work, general liability insurance is a must in many situations such as for any newly formed business that plans on operating in any way. Insurance can be obtained for a variety different risks or liabilities too; for example golf courses can buy hole-in-one insurance for fundraisers that give large prizes to anyone that hits a hole-in-one. One of the most important aspects of insurance is that certain types of insurance come with a duty to defend on behalf of the insurer; this is usually true in professional malpractice insurance. In some cases the duty to defend is even more valuable than the duty to indemnify.

Examples of underinsured entities can be seen in many of the cases that are assigned reading in law school. I can readily recall my business associations class from law school where my professor would ask “What could this business have done differently?” Often one solution was that the business should have carried adequate insurance. Transactional lawyers are expected to have some foresight and that includes recommending insurance coverage that would be adequate to protect the client’s interest. Another person that can aide in recommending coverage levels is an experienced insurance broker. Having a relationship with an experienced insurance broker is extremely valuable because helping a client select proper insurance coverage may require back and forth communications between the attorney and the insurance broker.

See my website to find out more about what I do and about how to contact me, Albuquerque Attorney