-- Paul E. Padilla

This week, the New Mexico Court of Appeals announced its opinion in State of New Mexico v. Scharff (Onion No. 2012-NMCA-087), upholding the decision of the San Juan County District Court.

In the case, the defendant was arrested for DUI after she was stopped for illegally pulling out of a parking lot. The defendant claimed that the arresting officer used a pretext, or false reason for pulling her over, and therefore the evidence found during the stop should not have been used against her in her case.

The defendant was pulled over as she left a bar parking lot, because she stopped her car with her wheels on the sidewalk that crossed the parking lot exit, rather than stopping before the sidewalk. In New Mexico, there is a law that states that vehicles “emerging from an alley, driveway or building shall stop such vehicle prior to driving onto a sidewalk or the sidewalk area extending across any alleyway or driveway…” The court said that a parking lot exit is considered a “driveway” for the statute.

The arresting police officer saw the defendant stop with her wheels on the sidewalk, look for and yield to oncoming traffic, and then proceed into traffic.  The officer then made a U-turn, stopped the driver, discovered the smell of alcohol, and made the arrest for DUI.  The officer was specifically on the Farmington DUI patrol that evening.

The court of appeals held that the stop and arrest was valid, because the defendant did break the law that required her to stop before, not on the sidewalk.  Also, the court stated that even though the defendant said the stop was based on a pretext, she did not sufficiently prove it.

While this sounds like a radical new law that will allow the police to make stops for small, insignificant crimes, this is not a new concept.  In the case of Whren v. United States, the U.S. Supreme Court held that “any traffic offense committed by a driver was a legitimate legal basis for a stop.” 

This means that if the police suspect a driver of being drunk or having drugs in the car, but do not have a reason to stop them for those crimes, they can stop them for having a burned out tail or license plate light, with the hope that the stop will give them enough evidence to make an arrest for the alcohol or drugs.

The real lesson to be learned from this is that many times (if not most) issues like DUI, possession of marijuana, or driving on a revoked license will come from a much more minor issue, like making a right hand turn into the middle lane of traffic or stopping with your bumper extending into a crosswalk.

The financial and moral implications of a DUI conviction are widely known. MSN reported that the financial implications of a DUI total approximately $10,000. This figure is based upon the cost of bail, towing your vehicle, impound fees, increased auto insurance, legal fees, probation fees, and perhaps even a breathalyzer system installed in your vehicle. The risk to human life is obviously a serious implication of drunken driving.

However, the true cost of a DUI may lie beyond the financial and moral implications. DUIs can impact a person’s child custody case and immigration
status.

In a child custody case, the judge must determine what is in the best interests of the child. Some factors judges use to determine the best interests of a child include the mental and physical well-being of both parents and the ability of each parent to place the needs of the child above his or her own needs. If a parent has a recent DUI conviction, a judge may believe that parent has a drinking problem and therefore could question his or her mental well being. In addition, a judge may believe that a parent with a DUI cannot put the needs of a child above his or her own needs to drink alcohol. A DUI conviction can negatively impact a child custody case.

In addition, a DUI may impact an individual’s immigration status. Many immigrants are brought to the attention of Immigration and Custom Enforcement (ICE) once they are arrested. Often, an immigrant will be arrested for a DUI and then will face a deportation case. Importantly, even lawful permanent residents, or people with a green card, may be deported. A DUI conviction impacts whether an individual can get an immigration bond if the immigration judge believes he or she is a danger to the community. Finally, a DUI conviction can impact an individual’s defenses to deportation.

In conclusion, the true cost of a DUI includes much more than $10,000 and the risk to human life. A DUI conviction may negatively impact your ability to see your children or remain in the United States.

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The Colorado legislature encourages individuals to call 911 when someone is experiencing a drug or alcohol overdose and therefore passed S.B. 12-20 in May, 2012. Many people that are breaking the law are afraid to call the police because they do not want to be arrested or get into trouble. The new law provides immunity for a person that calls 911, in good faith, to report an emergency drug or alcohol overdose. The requirements for immunity are as follows: 1) call 911; 2) in good faith; 3) during an overdose emergency; 4) remain at the scene until law enforcement or emergency response personnel arrive; 5) identify yourself; and 6) cooperate with authorities.

Importantly, the person reporting the emergency may only be immune for prosecution for the following offenses: possession or use of a controlled substance (class 6 felony or misdemeanor); possession of 12 ounces or less of marijuana; display, consumption, or use of less than 2 ounces of marijuana; transferring or dispensing 2 ounces or less of marijuana from person to person without an exchange of money; unlawful use or possession of synthetic cannabinoids; possession of drug paraphernalia; and illegal possession or consumption of alcohol.

So, what does that mean? Here is an example: John is 18 years old, drinking alcohol in his freshman dorm room at college and his roommate appears to have overdosed on alcohol, John may call the police without be arrested for consuming alcohol as a minor. The law is intended to encourage individuals to seek medical attention for someone that appears to have overdosed on alcohol or drugs without fearing they will be arrested.


Keywords: drug-overdose, prosecuted, prosecution, criminal law durango, criminal attorney durango, criminal defense.

Child support calculations can be confusing and stressful when parents decide they no longer want to live together. Many parents want to financially support their children, but do not understand how the system works. When parents do not understand the inner workings of the child support system, it can lead to hurt feelings, resentment, and may negatively impact the children.

One purpose of the child support system in Colorado is to establish a policy to adequately support children once parents no longer live together. The child support guidelines aim to “calculate child support based on the parents’ combined adjusted gross income estimated to have been allocated to the children if the parents and children were living in an intact household.” C.R.S. 14-10-115(b)(I).

This means that children should have the same financial support after their parents no longer live together as they did when their parents were still living in the same house.  Realistically, this means that both parents’ income is combined and a formula decides how much each parent should pay to support the children per month.

Importantly, the amount that each parent should pay is partially based upon physical care arrangements (aka “custody”). For example, if little Sally lives with Mom 6 days a week and spends Saturday night with Dad, Dad will generally have a higher child support obligation than if he had little Sally 4 days a week. The theory is that when little Sally sleeps at Mom’s house, Mom pays for little Sally’s dinner, toothpaste, pajamas, etc. As a result, physical care arrangements impact child support obligations.

Child support calculations are complicated and small changes in income, physical care arrangements, or extraordinary expenses may have a big impact on the bottom dollar.  If you would like to see what your child support obligation might be, you may access the electronic child support worksheets here: http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=94.

Keywords: ex, ex-wife, ex-husband, child support, CSE.