Burden of Proof

Many people don't understand the difference between pleas of guilty, not guilty and no contest, and the misunderstandings are compounded when the burden of proof is considered in the same factual predicament. When one enters a plea of not guilty, he is saying either that he is not guilty of the crime (there is insufficient evidence to sustain a conviction) or that he is innocent. When one enters a plea of guilty, he is admitting to have committed the crime. When one enters a plea of no contest, he is declaring that he does not admit that he is guilty of the crime as alleged, but agrees that there is sufficient evidence to sustain a conviction.
I recently represented a client that was accused of driving while intoxicated and careless driving. The evidence at trial was that my client's vehicle was involved in an apparent one-vehicle wreck, my client had the keys to his vehicle in his pocket when the police arrived, and my client told the police that he was in the back seat behind the driver when the crash occured and that the driver of his vehicle fled the scene. The officer checked the vehicle and saw a lot of stuff behind the drivers seat. Then, the officer alleged, my client told him that he meant to say he was behind the passenger's seat.
There was no doubt my client was intoxicated upon the arrival of the police. However, there was no testimony as to how the accident happened --be it driver error, vehicle malfunction, other traffic, etc. Nor was there any testimony as to when the driving took place --all the officer could say was that it happened some time prior to his arrival. Under those facts, you'd think the state can't make their case as it can't meet its burden of proof: it could not prove that my client was driving, or that he was drunk when he was driving. Remember, the fact finder had to find beyond a reasonable doubt that the defendant was guilty of driving while intoxicated and careless driving. Although the judge in the case was a respected jurist, I believe he didn't fully understand the burden of proof issues that the case presented. Perhaps the fact finder could find that more likely than not my client was driving the vehicle that early morning becuase it ws his vehicle and he had the keys upon the police arrival. But, there's no way the State proved its case beyond a reasonable doubt. I hope this case goes up on appeal...

Domestic Violence Cases

It is a prosecutor's duty to ensure that a criminal defendant has a fair trial. It is a prosecutor's duty, under the rules of professional responsibility, to do justice.

Recently, I represented a gentleman charged with domestic violence. The judge instituted conditions of release that prohibited my client from having any contact with the alleged victim (his fiance). The alleged victim came into my office and swore up and down that nothing happened --she was never hit, pushed, or even touched by my client. She just wanted to see him again. I filed the appropriate motion, spoke with the prosecutor, had the alleged victim talk with the prosecutor, and met with the judge and the prosecutor in order to try to get the conditions of release changed so that the couple could reunite their small family. The frustrating thing about it is that it just shouldn't take so much work to get justice done. What we had on our hands was an imaginary problem. There simply was no crime to prosecute. The problem is easy to identify, but impossible to remedy: too many assistant district attorneys are not trained or at least are not trained correctly. It is true that statistics are kept that demonstrate how many cases that are brought actually result in some sort of a conviction. It is also true that district attorneys are elected and their statistics regarding prosecutions vs. convictions are a big concern to campaign personnel. How sad is that? Politics before people? What about the alleged victim? If she was actually hit, she was victimized. If she was not actually hit, the district attorney will step in and ensure that the alleged victim gets victimized by asking for, and getting strict conditions of release. I've even seen a district attorney request that a warrant be issued for an alleged victim in a domestic violence case for failing to appear at trial! Just great. I guess someone's gotta go down, and they can care less about who or for what.

DWI: Impaired to the Slightest Degree

There are three ways the State can charge anyone with driving while intoxicated: per se (a breath alcohol content of .08), impaired by the slightest degree (impaired due to the consumption of alcohol to that point that you can not operate a vehicle safely), and impairment due to ingesting drugs.

In a recent trial, I had the honor of representing a gentleman who was charged with driving while under the influence of alcohol and the state brought two theories of intoxication: per se (.08 breath alcohol content), and impairment to the slightest degree.

The investigating officer testified that my client was so drunk, he couldn't even stand up straight during the instructions portion of the field sobriety testing. He said the instructional phase of the testing took about 20 seconds and my client was supposed to stand straight with one foot ahead of the other. According to the officer, my client almost fell several times and had to throw up his arms to use them as a de facto balancing pole just to stay standing for the 20 seconds. Wow!

Then, I got the officer to admit that he had my client walk across the street about 100 feet to a well-lit parking lot to conduct the field sobriety tests, walking to the parking lot took about twenty seconds, and my client was able to walk just fine to the field sobriety testing area (he never needed to throw up his arms to use them as de facto balancing poles to keep his balance). I also got him to admit that my client's driving was fine, that in order to drive a motor vehicle, you don't ever have to stand straight with one foot ahead of the other, etc., etc.

Needless to say, by the end of my cross-examination, it was clear that the jury would acquit my client of driving while intoxicated (impaired to the slightest degree) --and they did. DWI is a very fact-specific crime. Often, there are many defenses available in the cases.

Johnny Tapia's recent arrest/parole hearings

I was in district court and was able to catch the latter part of the pro boxer's arraignment hearing concerning the allegations of violating parole. The hearing was held before Judge Martinez in the Second Judicial District Court. If I heard correctly, he's looking at about a twenty-year sentence, his mother-in-law just passed away, and he's being held in custody up until his parole hearing. Like many New Mexicans, I've followed his career on and off and have seen Johnny get in and out of unfortunate situations several times. I really hope this incredible boxer who had such a tough childhood is able to rise up and overcome one more time, like we've seen him rise up hundreds of times before.

Parole hearings can be intimidating hearings. The accused doesn't have a right to counsel at the informal hearing, has other limitations regarding the introduction of evidence/proof, and the parole hearings are not held before judges. Much of his fate will be up to people who we can only hope are familiar with his incredible background and history of overcoming tremendous obstacles like he has throughout his life. Our thoughts and prayers go out to Johnny Tapia and his family as they go through this tough process of grieving and fighting for his freedom.

Domestic Violence cases in Second Judicial District Court

Lots of clients ask the question: if the alleged victim does not want the case prosecuted, can they just dismiss the case? The problem is that the alleged victim is only a witness, and, since they are not the prosecutor, dismissal of the action is not performed by them. However, there are all sorts of other issues that arise that could force a prosecutor to dismiss a domestic violence case. For example, prosecutors have an ethical duty to do justice, not just prosecute a case. In turn, when a case lacks substantive evidence, they often are required to dismiss a case. Prosecutors represent all of us --they represent the State of New Mexico, not the alleged victim, the defendant, or other community members distinctly. There is a big difference in the law between proof and evidence, and where that line is drawn dictates the outcome of many cases.

DWI, Driving While Intoxicated

There has been much discussion about what the correct outcome of the Sims case should be. In Sims, the Court of Appeals relied upon prior precedent, ruling that one doesn’t have to be actually driving their automobile to be convicted of DWI.

Here’s my solution: the Court should rule that the defendant was not driving if the car’s engine was never in gear. Then, the legislature should create a new law called “operating a motor vehicle while intoxicated.” Operating a motor vehicle should carry a jail sentence of 0-5 days and up to a $300.00 fine with no administrative effect towards their driving history (no affect on their driver’s license). A law like that would encourage people who are feeling intoxicated to pull over on the side of the road and rest instead of the current law that encourages people to risk getting a DWI trying to get home safely. Other states have already enacted similar laws and it appears to be a good solution to a very real problem.

Fourth Of July Celebration

I hope everybody had a safe weekend for the fourth of July. I had a chance to spend lots of time with family and friends. It was a time to relax and catch up with relatives and take a break from the stress through work. The sky was lit up with fireworks on both Friday and Saturday night.

Events In Albuquerque

Every Saturday from 1 p.m. till 2:30 p.m. is Family Art Workshops at The Albuquerque Museum. All supplies are provided with museum admission and is open to people of all ages. There are hands on art workshops for families to be creative together. If you are interested and would like to participate you may contact: Leslie Venzuela at lvenzuela@cabq.gov or call the museum at 505-243-7255.