McGraw & Strickland, LLC

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NEGOTIATING A PLEA BARGAIN

One of the main jobs of a criminal defense attorney is to carefully collect and analyze all of the evidence in the case to see if there are issues that can get the case thrown out, or ways that you can potentially win the case at a jury trial. If, after all of that review, you find that you probably can't just get rid of the case, then it is important to negotiate with the other side to mitigate the damage that this case is going to cause your client.

IF I'M BORDERLINE INTOXICATED, BUT I KNOW THAT I'M NOT IMPAIRED, DO YOU STILL RECOMMEND NOT TAKING THE TESTS WHEN NOT DOING SO COULD ELEVATE MY CASE TO AN AGGRAVATED DUI?

Yes, because aggravated DWI doesn't change the punishment very much, and usually you can negotiate to a non-aggravated anyway during fee negotiations. 

HOW DOES THE STATE PROVE IT THAT YOU WERE UNDER THE INFLUENCE OF DRUGS?

In New Mexico, they have to prove that you were under the influence such that you were incapable of safely operating a motor vehicle. They can prove that through driving and also by performing the Standard Field Sobriety Test. On drug cases, they use another battery of tests that are run by a "Drug Recognition Expert," a specially trained officer to check if somebody is under the influence of drugs, and they can use the results of those tests against you as well to show intoxication.

IF I REFUSE TO DO THE BREATH TEST, DOES IT BECOME AN AGGRAVATED DWI?

It does, but you're still likely to get a more favorable plea deal because it makes the state's case a lot harder to show. Earlier, we were talking about how if the state has a good case against you, you get a worse plea deal, and if they have a problem with your case, you're getting a better plea deal, so you're giving them problems with their case by declining to give a breath sample. I've had plenty of cases where a client gives a breath sample and it's 0.16 or above, and they didn't give themselves anything by giving them a breath sample, and it's still aggravated because it's so high. 

DWI's: LET'S SAY I DRIVE A TRUCK FOR A LIVING? WHAT IF I HAVE A DUI IN ANOTHER STATE, PERHAPS? WHAT DOES THAT DO FOR MY CASE, AND HOW WOULD YOU DEFEND ME?

In New Mexico, DUI's in other states will count against you in New Mexico, and every DWI you get brings greater punishment.

UNDER WHAT CIRCUMSTANCES WOULD YOU RECOMMEND TO YOUR CLIENT THAT YOU HAVE A BENCH TRIAL RATHER THAN A JURY TRIAL?

If you have a case that has a very technical legal defense, sometimes judges can be more favorable to you than a jury. Maybe it's a case where what you did looks bad. A jury is not going to be happy about it, but you have a legal loophole or something like that; judges are more likely to go for that than a jury would be 

DWI: IS THERE ALWAYS A JURY TRIAL?

Almost always. There are some rare exceptions in New Mexico where you would only be entitled to a bench trial, but that would be for crimes with a penalty of less than six months, which in Mexico is basically only DWI's and possession of marijuana and the case is charged for some reason in District court, rather than magistrate court. Except for those 6 month exceptions, you always have a right to a jury trial. 

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McGraw & Strickland, LLC
165 West Lucero Ave.
Las Cruces, NM 88005

Phone: 575-567-3107
Fax: 575-680-1200
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