-- Paul E. Padilla
There are many differences between state and federal laws. In many cases, the differences are based on policy. A state law is usually influenced by what is important in that particular state, while federal law is based on national policy and a very different political perspective. But, once in a while the differences are a result of timing and chance.
The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by the government. This requires the police to get warrants, have probable cause for making arrests, and to follow many other procedural steps in law enforcement and investigation.
If the government doesn’t follow those procedures, the evidence they obtain can be excluded from prosecution, and may not be used against a person charged with a crime. This is called the Exclusionary Rule.
States also have constitutions, and many of them are almost identical to the U.S. Constitution. However, even though a state constitution may be identical to the U.S. Constitution, it may not have the same protections or be interpreted in the same way, because a state court is making the decision, rather than a federal court.
Generally, when the police attempt to execute a search warrant, they must knock on the door of the place to be searched, and announce that they are police. This is called the Knock and Announce Rule. Under federal law, if the police do not knock and announce, and instead kick in the door without warning, the courts have held that the evidence found at the location can still be used against a person charged with the crime, because the police’s failure was minor (based on policy).
However, in New Mexico, if the police do not knock and announce their presence, the evidence found at the location cannot be used against the person charged with the crime.
At first glance, you would think that New Mexico has a different policy than the federal government. But, the real answer as to why there is a difference is because New Mexico’s law has not changed since the federal government changed the federal law.
Therefore, until the New Mexico Supreme Court decides to change the rule, remember this: if the police don’t knock and announce and you are prosecuted in federal court, the evidence WILL BE used against you; if the police don’t knock and announce and you are prosecuted in state court, the evidence CANNOT BE used against you.
It may be scary, but it’s as simple as that.
-- Paul E. Padilla
Last week, the New Mexico Court of Appeals released a decision that will have a big impact on New Mexico's DWI law. In the case of State v. Valdez (2013-NMCA-016), the Court of Appeals decided that anyone who is convicted of a DWI in New Mexico must have an interlock device installed in their car, even if the DWI did not involve alcohol.
In general, a person can be convicted of DWI if they are under the influence of any drug that impairs their ability to safely drive a vehicle. NMSA Section 66-8-102(B). However, the law also requires anyone convicted of any type of DWI “to obtain an ignition interlock license and have an ignition interlock device installed and operating on all motor vehicles drive by the offender[.]” NMSA Section 66-8-102(N).
In the case of State v. Valdez, a woman was arrested for driving under the influence of oxycodone and other prescription pills, but had no alcohol in her system. The woman pled guilty to DWI, but challenged the requirement to have an interlock device installed in her car, because she had not been drinking when she was arrested.
Interlock devices can only detect alcohol, and do not test for other drugs, such as marijuana or prescription pills. Therefore, the woman argued that there was no basis to make her install the interlock device, since alcohol had nothing to do with her arrest.
However, the Court of Appeals did not agree, and ruled that it is reasonable to believe there is a “connection between the use of prescription drugs and the use of alcohol.”
Therefore, even if you have not been drinking, if you are pulled over and convicted of a DWI for pills, marijuana, or any other drugs, you will still need to register for and install an interlock device, which costs a lot of money. An interlock will cost an average of $1,000 per year, plus the cost of getting an interlock driver’s license ($63.00), and fines if you try and start your car with alcohol in your system.
At the end of last week, a federal court struck down a law passed in 2010 that would have required certain online retailers to collect Colorado state sales tax for online purchases.
The court’s decision held that the law was unconstitutional, because it placed an undue burden on interstate commerce. Generally speaking, this is because Colorado cannot pass laws that restrict commerce or business that crosses state lines, because the U.S. Congress has the sole responsibility to regulate that area of the law.
Legalese aside, this means that when you buy things online you still do not have to pay sales tax, unless the online retailer is actually located within Colorado.
Some news stories have spun the issue, saying the decision “vindicated” the Republicans or that the Democrats lost. But, the truth is that the court didn’t care who “won.” Knowing Judge Blackburn, the judge who wrote the decision, I am confident that the decision was neutral and objective, and legally the correct outcome.
However, the real issue is not which party won a fiscal battle, but what affect the decision will have going forward. The law was originally passed with two laudable goals: 1) to generate additional tax revenue to aid an out-of-balance state budget; and 2) an attempt to even the playing field for local retailers (some called it the “Amazon Tax”).
I would be a hypocrite and liar to say that I don’t shop online, or that I don’t love seeing “$0.00” for sales tax when making a purchase. But, as a proponent of small businesses, I think it is critical to support the local economy, as well as continue to search for viable solutions for our unwieldy state budget. Regardless of whether the court was right in making its decision (which it probably was), there still exist two problems in need of solving.
Currently, online retailers have three main advantages over local brick-and-mortar retailers: 1) little or no sales tax encourages online spending; 2) low overhead (no fancy storefronts needed); and 3) a much larger potential customer base. The proposed law would have at least limited one of the three advantages that online retailers have over local stores.
Additionally, as far as the state budget is concerned, the proposed sales tax produced a new source of funding to the government that was based on consumption, rather than taking more from your paycheck every week, before you even cash it. Unless you also receive a paycheck from an online retailer, online shopping is a one-way street that siphons money out of the local economy.
So, while it’s nice to buy things for the advertised price, with no add-ons inflating the bill at check-out, it is equally important to remember where your money is going, whether to New Jersey, China, India, or anywhere else.
The ruling is based on the idea that there is no state or federal constitutional right to operate a dispensary, therefore no right has been taken away by implementation of the city-wide ban. However, an interesting issue that may develop down the road is whether the dispensaries can successfully make an analogy between marijuana dispensaries and adult entertainment.
On its face, it seems that the Longmont ban is based on morality. I can only guess that the citizens of Longmont have decided that they would prefer not to have marijuana sold within city limits, because they do not believe in the sale of marijuana, regardless of whether it is for health care or recreational purposes. This seems like the same argument that has been made for adult entertainment for 70 years. Basically, “we don’t want it in our community.”
Without delving into the litany of U.S. Supreme Court cases regarding adult entertainment, the short version is that adult entertainment is a form of protected speech, and therefore a community can limit where it occurs under the police powers of the state, but it cannot absolutely ban it. There must be a time and place for adult entertainment.
While I don’t specialize in medical marijuana (I’ve never done a single case), this sounds like a persuasive argument. The dispensaries have lost the first round arguing that they have Fifth Amendment protection, but maybe they can find success by arguing that the First Amendment applies. While limitations on the time and manner for marijuana sales may not be ideal, at least it would be a way to operate within city limits.
This week, a district court judge in Boulder held that the city-wide ban of medical marijuana dispensaries in Longmont, Colorado, does not constitute a “takings” under the Fifth Amendment. The three dispensaries that brought the case against the city have 45 days to appeal the decision, but for the time being the ban will remain in full force.