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.