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Common Questions

If I am facing a first-time DWI charge, will I lose my license?
First time offenders may have their driving privileges revoked in one of two ways, or both. First, when charged with DWI, drivers face the administrative revocation of their driving privileges. This administrative revocation may last six or twelve months, depending upon whether or not the driver submitted to the breath testing procedures. And then, administrative revocation only occurs if, after hearing, the MVD hearing officer determines by a preponderance of the evidence that the police officer has met his burden of proof. Administrative revocation is automatic if the driver failed to request an MVD hearing within ten days after arrest.

Upon a criminal conviction in court, first-time offenders suffer an automatic criminal revocation of their driving privileges for a period of one year.

For both administrative and criminal revocations, the law in New Mexico allows for the individual to operate a motor vehicle during this period of time, but only after having an “intoxilock” device installed on that vehicle.

Do I have to take the breath-a-lizer test if I’m pulled over for DUI?
No. An officer can not force you to take a breath test, or for that matter any sobriety test. However, in New Mexico, a refusal to submit to the breath test may subject you to added criminal penalties or a lengthier administrative revocation.

Is it worth going into debt to hire a private attorney instead of using a public defender?
Only you and your family can make this decision. One thing to consider is how much attention your case will require, and how much attention is it likely to receive from the Public Defender Department where a staff attorney often juggles more than 150 cases at a time and often does not meet clients until the day of trial. The best way to assess the real value of hiring an attorney is to understand the potentially drastic consequences that often result from a DWI conviction.

If my husband or boyfriend is facing charges of domestic violence (and you are the victim named in the Complaint), do I have to testify against him?
If you are married, you may have a claim of privilege which may entitle you to refuse to testify against your accused husband. If not, then you may have to testify, but only if you are properly served a subpoena. There are times when an alleged victim may require counsel, should issues of liability become evident.

What is the age cut-off for juvenile court? What is the difference between facing charges as a juvenile versus as an adult?
A juvenile is any individual who has not reached his or her eighteenth birthday at the time of the alleged offense. Juvenile cases are prosecuted in the Children’s Court, which is a special division of the District Court. Added protections are built into the Children’s Code, and juveniles are “adjudicated” delinquent (as opposed to being found “guilty”). Most juvenile cases remain in the Children’s Court, but some fifteen, sixteen and seventeen year olds may be prosecuted in adult court if certain circumstances are met. Additionally, the Children’s Code contains provisions for allowing juvenile records to be sealed.

What is the “three strikes and you’re out” penalty? When does it apply?
“Three strikes” laws generally apply in federal court, and require that an individual has certain enumerated prior convictions. New Mexico has a system of sentencing enhancements, called the Habitual Offender enhancements, which require mandatory prison terms when a newly-convicted defendant has prior felony convictions.

How do I know whether it is better to go to trial or enter into a plea arrangement?
Only after a thorough and exhaustive review of the evidence with your attorney can this decision be made. Part of any analysis of a case involves assessing evidence of a defendant’s conduct, and comparing that evidence with the resulting criminal charges. It is not uncommon for prosecutors to “over-charge” an individual in order to attempt to gain “leverage” and force a negotiated plea. However, many cases can benefit from a trial, when a judge or jury is able to hear the “full story”. On the other hand, it is always difficult to predict how a jury of six or twelve strangers will react to the facts of a case. Deciding whether or not to plead guilty or to proceed to trial can be a very difficult decision, and having the assistance of skilled and experienced counsel is crucial during this critical stage of your case.

Do I need an attorney for traffic citations like speeding, parking or red light violations?
Many of these types of cases can be effectively handled without an attorney’s assistance, but various citations carry the possibility of “points” levied against your driver’s license. In New Mexico, licenses may be revoked after a certain number of points have accrued. Therefore, even seemingly inconsequential citations such as speeding or red light violations may have negative repercussions for an individual’s driving privileges. It is better to consult with an attorney before deciding to go-it-alone.

What is the difference between being charged in state versus federal court?
Most crimes are identified in statutes that have been enacted by federal, state, and local government legislatures, in response to issues that affect the jurisdiction. State courts are actually the primary places where criminal law is practiced, while Federal cases are a relatively small slice of what happens in criminal law. Crimes of violence, murder, robbery, rape, burglary, and theft are usually prosecuted in state courts.

The federal courts are courts of limited jurisdiction. Offenses must be listed as federal in the constitution or if they are an offense against federal powers, for example Congress’ power to regulate interstate commerce. Murder can become a federal offense if it occurs on a federal property, or when a federal agent is killed. Similarly, large scale drug offenses fall under commerce, and more and more Federal courts are becoming the nation’s large scale drug courts. Of the persons in federal custody, more than half are incarcerated for drug convictions.

Federal cases are often much more complex and require more time to prepare than State cases. Sentencing in Federal Court is guided by the advisory Federal Sentencing Guidelines. Since 1984, Federal judges have been more constrained in determining an appropriate sentence because of the Sentencing Guidelines, and many Federal statutes contain mandatory minimum sentences. Additionally, in Federal court, there tends to be less latitude in plea bargaining and the judge very seldom gets involved.

Some offenses are concurrent, as they could be brought in either state or federal court (e.g. bank robbery). On occasion, cases may be prosecuted in both State and Federal courts, despite claims of double jeopardy, policy considerations, and so on.



Finding the Right Criminal Lawyer

Don’t be fooled by flashy advertisements. Lawyers cannot promise particular outcomes in a criminal defense case, and any lawyer who tells you otherwise is not being forthright. There are many, many lawyers to choose from, so you need to be an informed consumer and ask questions of your potential legal counsel.

Questions to ask a variety of attorneys:

  • What kind of experience do you have with cases like mine? What were the outcomes in these cases?
  • How would you proceed with a case like mine? What can I expect will happen?
  • What are the full range of potential results I should expect, and what factors in my case will influence the outcome?
  • How much would you charge for my case? Do I pay the full amount up front, or make payments?
  • What makes you a good criminal defense lawyer for me and my case?


In addition to asking these sorts of questions, you should consider the following:

  • Is this attorney respected by his or her peers? Ask around.
  • Is this an attorney in good standing with the courts? Call or go online to make sure this attorney is licensed in the state of New Mexico and has no pending disciplinary complaints. The State Bar of New Mexico (Tel: 505-797-6000) is a good place to start.
  • Who do your friends, family and acquaintances recommend? A personal referral is a valuable tool in choosing an attorney.
  • When interviewing attorneys, note whether they are good listeners, easy to talk to, and provide good advice. Are they presenting you with realistic expectations? Are they good communicators? Are they professional and respectful of your time and finances?
  • How am I going to pay for my legal defense? If you are unable to afford a private attorney, a judge can declare you “indigent” and appoint a public defender for your case.