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  • How Do Judges Use Aggravating Factors?

    Posted on by JACK MKHITARIAN

    How Do Judges Use Aggravating FactorsProsecutors will use every advantage they have to get the longest sentence possible for those convicted of crimes. Using aggravating factors helps the prosecutor increase basic sentences.

    Experienced criminal defense lawyers understand that sentencing is a critical part of every criminal case. At sentencing, the defendant has the chance to show mitigating circumstances in the hopes that the judge will show the now-convicted person mercy by granting them a lesser sentence. 

    The criminal defense lawyers with the New Mexico Criminal Law Offices aggressively fight to protect your rights and preserve your freedom. We vow to be with you through every step of the criminal justice process, and we never take a “one size fits all” approach. Instead, we seek innovative and groundbreaking solutions to help minimize the impact a criminal charge has on your life. Contact us today to find out how we can help.

    What Are Aggravating Factors?

    New Mexico law sets out the basic sentence for each level of offense. Under this law, the judge is instructed to hand down at least the basic punishment for the category of crime involved. For example, a third-degree felony carries a basic sentence of three years in state prison. A second-degree felony carries a basic sentence of nine years in state prison. 

    The basic sentence structure promotes uniform sentencing across New Mexico. However, judges are allowed to depart from the basic sentence structure in either direction, depending on the mitigating or aggravating factors present in the case.

    Aggravating factors increase the amount of time you have to serve behind bars. The law allows the judge to add more time to your sentence if the prosecutor proves the existence of aggravating factors. Likewise, mitigating factors can help decrease your sentence. These factors can increase or decrease your sentence by a maximum of 33.3% of the basic sentence. 

    For example, assume you plead guilty to a third-degree felony that carries a basic sentence of three years. The presence of aggravating factors could add another year to your sentence. Similarly, the presence of mitigating factors could reduce your basic three-year sentence by a year.  

    Sentencing and Aggravating Factors

    The prosecutor cannot merely claim that your case involves aggravating factors to jack up your sentence. The judge in a bench trial or the jury in a jury trial will determine your guilt or innocence. If they find you guilty, the fact-finder (judge or jury) will deliberate on the issue of aggravating factors. At sentencing, the prosecution will present evidence of aggravating factors to the judge or jury. They must prove the existence of aggravating factors beyond a reasonable doubt.

    You have the right to waive a trial by jury on the issue of aggravating factors if you choose. In that case, the judge must rule on whether your case involves aggravating factors. To increase your sentence, the judge must find beyond a reasonable doubt that aggravating factors exist.

    Likewise, mitigating factors can convince your sentencing judge to reduce your basic sentence. The jury does not decide the issue of mitigating factors; the judge does. As with aggravating factors, any mitigating factors can involve the circumstances of the crime or attributes that you have as an individual. 

    Our knowledgeable criminal defense attorneys can discuss how mitigating and aggravating factors could affect your sentence.

    Common Aggravating Factors

    New Mexico law demands the prosecutor notify the defense of their intent to present evidence of aggravating factors in an attempt to increase your basic sentence. Moreover, the notice must contain a list of the aggravating factors the prosecutor will use against you.

    So what are aggravating factors? Aggravating factors often include the following:

    • Leading a criminal enterprise;
    • Leaving multiple victims in the wake of your actions;
    • Committing a crime that is unnecessarily violent or cruel; or
    • Attacking a vulnerable victim such as a pregnant woman, a young child, or an older person.

    Some offenses have two versions: a basic charge and an aggravated charge. Take a DUI charge, for instance. A DUI charge becomes aggravated if your chemical test results exceed 0.16%, which is double the legal limit. 

    The judge will weigh these factors when determining if you deserve a stiffer sentence than the basic sentence for your offense.

    While New Mexico law does not define aggravating factors for felony offenses, the law clearly states facts that are not aggravating factors. New Mexico’s sentencing statute indicates that the following are not aggravating factors:

    • Using a firearm;
    • Having a prior felony conviction;
    • Committing a crime while motivated by hate; and
    • Utilizing an essential element of the charged crime as an aggravating factor. 

    Punishments for firearms offenses and hate crimes fall under different statutes. And it’s important to note that aggravating factors are not the same as sentence enhancements. Sentencing enhancements must be specifically pleaded as a component of the charged offense. 

    Sentence enhancements involve the habitual offender statute, subsequent offenses, and having a prior felony record. 

    So, How Do Judges Use Aggravating Factors?

    A judge can rely on an aggravating factor to give you a heftier sentence only if the government proves the presence of such factors. The judge has to say for the record all the reasons why they upwardly departed from the basic sentence. 

    A lawyer with extensive trial skills and decades of criminal defense experience will be your best weapon in the fight to preserve your freedom. Experienced defense lawyers know how to present mitigating factors that could give you a reduced sentence, and they know how to negate any aggravating factors. 

    Preserve Your Freedom

    Liberty is your most precious right. If you face the possibility of losing yours, you need to contact us right away. We have over two decades of criminal defense experience. Protecting your freedom, preserving your rights, and clearing your name is our first priority, and we will do everything that the law allows to see that you get the best result possible for your case. We also have an impressive track record of documented success. Contact us today for a free case evaluation.