--Paul E. Padilla

On June 20, 2016, the U.S. Supreme Court issued a ruling in Utah v. Strieff that allows the police to use evidence in a criminal case, even when the police collect the evidence unconstitutionally.
 
The general rule is that if the police violate your constitutional rights when collecting evidence, they are not allowed to use that evidence to prosecute you in a criminal case. Although there are exceptions to this rule, it is a right created by the 4th Amendment of the U.S. Constitution. In short, the police cannot benefit from breaking the rules.
 
In Utah v. Strieff, the Supreme Court expanded one of the exceptions to the rule, which will allow the police to use evidence against you, even if the evidence is collected illegally.
 
In this case, the police were watching a house where they thought drugs were being sold. They saw a man walk out of the house and down the street. The police had no evidence that the man had committed any crime. The police stopped the man and demanded his ID. When the man gave the police his ID, they learned that he had an arrest warrant from a completely different crime, so they arrested him. As they arrested him, they discovered methamphetamine in his pocket, which was used against him at trial.
 
When the police first stopped the man, it was an illegal stop because the police did not have any evidence to believe that the man had committed a crime. Before this case, the drugs found in the man’s pocket could not have been used in his prosecution because the police violated his constitutional rights.

But, this case now allows the police to use the evidence in prosecution, even if the original stop was illegal. The Supreme Court expanded a rule called the “attenuation doctrine” so a court will now consider three factors to decide if the police can use the evidence:

1. temporal proximity (timing between the police’s illegal activity and finding the evidence);
2. intervening circumstances (the relationship between the reason for finding the evidence and the illegal activity); and
3. purpose and flagrancy of misconduct (what kind of illegal activity did the police do).

 
This test is very dangerous for ordinary citizens, because it gives the police an incentive to conduct illegal searches with the possibility of finding very bad evidence. 

For example, the police could pull over a car for no reason, with the hope that the driver has an arrest warrant, past due child support, or drugs in the car.  Essentially, it will reward the police for making illegal stops, as long as the illegal activity is minor (stopping you on the street or pulling your car over) and does not relate to the reason for the illegal search (they stop you while driving, but find that you have bail violations for other crimes).

The Court's full decision is below:

-- 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.

-- Paul E. Padilla

Although alcohol-related offenses are a major concern in Colorado and New Mexico, many people don’t realize that if a criminal charge involves a car (like DUI or DWAI), there are two different legal processes that you will have to deal with. A criminal case will likely be started for violation of the law, but there will also be an administrative case to deal with revocation or suspension of your driver’s license.

In Colorado, a person must request an Express Consent hearing with the Department of Revenue within 7 days of being arrested or cited with an alcohol- or drug-related offense. In New Mexico, you have 10 days to request an Implied Consent hearing with the Motor Vehicle Division. These administrative hearings are similar to going to criminal court and will be based on the evidence collected when the person is arrested, but they are in addition to a criminal case and subject to different rules.

While there are differences between the criminal and administrative processes, both will apply the Express Consent law (in Colorado) or Implied Consent Act (in New Mexico), depending on where the person is arrested. In Colorado, the Express Consent law (C.R.S. § 42-4-1301.1) states that by receiving a driver’s license, you give permission for the police or other law enforcement agencies to take chemical tests to determine blood-alcohol or other drug levels, if they suspect you of driving under the influence.  In New Mexico, the Implied Consent Act (N.M.S.A. § 66-8-105) is fundamentally the same as Colorado’s law.

If you refuse to take chemical tests for alcohol or drugs, these laws allow the department of revenue to revoke your driver's license, even if they don’t have evidence of alcohol or drugs. The amount of time a person loses their license may also be longer if they refuse to take chemical tests than if they were convicted of a DUI.  However, that depends on the specific facts of your case.

Regardless, alcohol- and drug-related traffic offenses can result in fines, court cost, drug education classes, inter-lock devises, and restrictions or loss of your driver’s license, both in criminal court and in the administrative hearing.  But, what is important to remember is that you must proactively request an administrative hearing to challenge the revocation of your driver’s license, and that you must go through both the criminal and administrative processes.

-- Paul E. Padilla

There was a lot of commotion this week, with the election season coming to an exciting end and focus turning to how new officials and policies will unfold. In Colorado, Amendment 64 passed, which permits recreational use of marijuana. While legalizing marijuana has been a hot topic for a long time, Amendment 64 certainly doesn’t end the debate.

I admit that I voted for Amendment 64, based on my belief and observations that the concept of “medical marijuana” is a misnomer. Having previously lived one block away from “Marijuana Mile” (South Broadway) in Denver, I have seen firsthand that there is minimal health care taking place in the thriving cannabis industry of Colorado. And, while I have no interest in using marijuana myself or expanding the general population’s access to it, I think marijuana is already widely available, so we might as well collect tax revenue to fund our deteriorating educational system (and maybe fix some potholes – pun intended).

My personal beliefs aside, Amendment 64 will raise many more issues than it resolves. Once the Amendment goes into effect, it will allow people 21 years old and up to possess an ounce of marijuana and grow six plants in their homes. This may decrease the number of criminal prosecutions for possession of marijuana, but it will likely open the flood gates to other legal issues.

The most significant problem that exists with recreational marijuana is federal law. A looming black cloud (no pun intended) will exist over Colorado as long as the federal government prohibits its use and possession. The obvious risk this creates is that an individual will have a false sense of security buying and carrying marijuana, because it is allowed under Colorado law. But that person may still be prosecuted in federal court, which is generally much more serious.

An additional issue created by the conflict with federal law is that marijuana dispensaries cannot open bank accounts, because the banking industry is regulated at the federal level. Because any banking activity connected with illegal activity (i.e. marijuana) is considered money laundering, dispensaries cannot accept credit cards or open bank accounts. Thus, you have a multi-million dollar industry that is stuffing its mattresses with cash. And lots of cash usually means lots of crime.

In addition to the federal issues, it is important to recognize the other legal consequences of recreational marijuana. In the west, DUI rates are incredibly high due to minimal public transportation and significant cultural factors. With expanded availability of marijuana, it is essentially guaranteed that the DUI rates will also increase.

Also, just as alcohol and alcoholism has been pervasive in family and employment law, marijuana’s impact will also grow (pun intended). Even though marijuana will now be legal and available, it doesn’t mean that the courts will allow or tolerate its use in family and employment settings.

So, while you may soon be able to buy marijuana freely in Colorado, it remains to be seen just how big of an impact recreational marijuana will really have on the state.