After a misdemeanor DWI arrest, your case will be set for an arraignment. At an arraignment the Judge will explain what you have been charged with, the penalties for the offense, your constitutional rights, and will ask you to pled guilty or not guilty. It is never wise to pled guilty at an arraignment. The Judge will also set your conditions of release while your case in pending.
An attorney can explain to you what the Judge would explain to you at your arraignment and request your arraignment be waived, which will be approved in a majority of cases. The only instance where you would want to appear at an arraignment is if the criminal complaint prepared by the officer or district attorney is defective on its face. This means that assuming every word in the criminal complaint is true, the conduct at issue still does not fit within the crime charged. If this is the case, you can make a probable cause challenge at your arraignment which may result in the case being dismissed.
Time is of the essence in preparing a DWI defense. For example, you only have ten days from the date of your arraignment to request the judge assigned to your case be recused and have your case reassigned to another judge. Also, in some circumstances, a jury demand must be filed within ten days or your right to a jury trial may be forfeited. If you are exposed to the possibility of spending more than 90 but less than 180 days in jail your case is eligible for a jury, but only if a demand is filed within ten days of your arraignment or the date your arraignment was waived. If you are exposed to more than 180 days in jail you case is automatically eligible to be tried by a jury.
Further, you only have ten days from the date of your arrest to request a MVD hearing be conducted by the New Mexico Taxation and Revenue Department. Otherwise, your licensed will automatically be revoked and you will be required to get an ignition interlock in any vehicle your drive.
In Bernalillo County Metropolitan Court the State has 30 days from the date of the arraignment or the date your arraignment was waived to provide discovery. In Magistrate and Municipal courts in other counties the rules are different.
Often times the Albuquerque Police Department or Bernalillo County Sheriff’s Department does not provide the District Attorney’s office the discovery or the witnesses its needs for the case to proceed. Other times the State either intentionally or unintentionally fails to provide discovery that defense counsel is constitutionally entitled under the Fifth Amendment of the US Constitution. Further under New Mexico Rules of Criminal Procedure, you have a right to request interviews with any witness the State intends to call at trial. If a witness fails toappear for a pre-trial interview, their testimony could be suppressed and the case dismissed.
After witnesses are interviewed and discovery provided, there are a number of procedural, statutory, and, most importantly, Constitutional defects that we could discover. For example, the Breathalyzer used to obtain your breath score (APD and BCSO use a machine called the IR 8000) must be calibrated, the officer who administered the test must be certified, and dozens of other State Scientific Laboratory Regulations must be adhered to regarding administering the test. If these are not strictly followed, it could be grounds to suppress the result of the test making it very difficult for the State to obtain a conviction. Furthermore, a recent United States Supreme Court decision, that originated in from a case in New Mexico, held that in a DWI case that resulted in a blood draw, the State must produce the chemist who performed the analysis of the blood. This is because you have a 6th Amendment Constitutional Right to confront your accuser
There are countless other facts and issues that could be uncovered during discovery that could result in variety of motions such as motions for dismissal, motions for suppression of evidence, and motions to exclude witnesses among others.
If a case proceeds to trial, a trial results in one of three outcomes: a not guilty verdict, a guilty verdict, or a mistrial. If you are found not guilty, your case is over for good. Your Fifth Amendment right to be free from double jeopardy attaches and the State cannot appeal the result or attempt to retry your case. If your case results in a mistrial, it would depend the circumstances on whether the State could try the case for second time. The State could also decide to drop the case. If you are found guilty, you could either appeal your case to the District Court, in which case case sentencing would be stayed until the appeal is resolved, or you could prepare for sentencing.
Unless your case is a true first offense with a breath score below .16, your case will likely be set for a sentencing hearing a month or more from the date of conviction. All DWI convictions in New Mexico carry mandatory penalties, including jail time, based on laws passed by the state legislature. For example an Aggravated DWI First Offense carries a mandatory minimum 2 days in jail and maximum 90 days in jail. Typically the Judge will order a pre-sentence report or PSR to be prepared by the Court’s probation department. The probation officer assigned to your case will interview you, investigate your background, possible drug test you, and consider a number of other factors when preparing his or her report. It’s very important to prepare for your interview with the probation department. After the PSR is complete, the probation officer will forward it to the parties and the Judge. The PSR recommendations are only advisory. The Judge has the discretion to impose the sentence recommended in the PSR or impose a lesser or harsher sentence. The Judge will hear arguments from the parties and occasionally hear testimony before imposing a sentence. After sentencing, a defendant has ten days to request a reconsideration hearing
We offer proven, aggressive, statewide representation of people charged with DWI or DWI related crimes. We have the resources, experience, and knowledge to defend your rights and interests in court. This includes defending you in the criminal proceedings, the state’s MVD hearing to revoke your license, and, if needed, the City of Albuquerque’s vehicle forfeiture proceedings.
We offer free telephonic consultations. We charge a flat fee to handle your case from start to finish and accept, cash, checks, and credit cards and can make payment plan arrangements.
If you would like to discuss your case with an attorney contact us today.
