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Copyright © 2018 Albuquerque Journal

A defendant’s chances of beating DWI charges in Bernalillo County are in the range of a coin flip.

Last year, 42 percent of all DWI cases resolved in Metropolitan Court were dismissed either by judges or prosecutors, while 58 percent ended with a guilty verdict or plea. In 2016, the percentages favored defendants, with 55 percent of drunken driving cases being dismissed compared to 45 percent ending in pleas or convictions.

Meanwhile, the number of alcohol-related traffic deaths in Bernalillo County climbed to 53 in 2016, the highest number since the turn of the century.

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Advocates say the numbers are awful across the board.

For example, Albuquerque police made 4,842 DWI arrests in 2012. That number dropped by more than half, to 2,347 DWI arrests, in 2016.

The conviction rates of 58 percent last year and 45 percent in 2016 compare to conviction rates ranging between 70 and 80 percent a decade ago.

“Arrests are down. Convictions are down. Deaths are up, ” said Linda Atkinson, head of the DWI Resource Center.

District Attorney Raúl Torrez doesn’t disagree but believes prosecutors are making progress.

“I know that if we can get to trial, we can win,” Torrez said. “The problem is getting to trial.

“We’ve improved over the last year, and the dismissal rate dropped. We are in the process of fixing many technical issues that lead to the dismissals.”

Most of the problems that lead to drunken driving cases being dismissed involve the Albuquerque Police Department, which accounts for 85 percent of the cases filed in Metropolitan Court.

Albuquerque Police Officers Association President Sean Willoughby attributes the dismissal rate to “technicalities” and the decline in arrests to fewer specialized DWI officers.

“In 2010, we had 14 DWI officers included in a 34-officer traffic division,” he said. “Today, we have eight DWI officers and fewer than 12 officers in the traffic division.”

Assistant District Attorney Josh Boone, who worked for years as a defense attorney and public defender, said many of the problems leading to dismissals of drunken driving cases are long-standing.

“Officers not getting to pretrial interviews with defense attorneys, officers not getting to court hearings because of conflicting schedules and not getting evidence turned over to defense attorneys account for 75 percent of the dismissals in Metro Court,” Boone said. “The remainder are due to things like defendants getting deported.”

A survey by Mothers Against Drunk Driving done last year found that many of the problems leading to DWI dismissals are seen around the state.

The MADD survey found the top three reasons cases were dismissed are because officers or witnesses failed to appear, the suppression or exclusion of testimony or evidence, or because the defendant received a plea deal.

The survey found that of the 1,106 monitored cases adjudicated statewide, 36 percent were dismissed, 35 percent were guilty verdicts, 23 percent were deferred prosecution, 4 percent were amended, and 1 percent were not guilty verdicts.

Overbooked

The logistics challenges for APD’s handful of DWI officers are daunting.

On Jan. 10, APD officer Timothy McCarson was scheduled to appear in six DWI cases in Metropolitan Court at 9 a.m. – one case in the courtroom of Judge Vidalia Chavez, one in the courtroom of Judge Linda S. Rogers, and two each before judges Christine E. Rodriguez and Judge Henry Alaniz.

McCarson is part of APD’s small DWI Unit of eight officers – down from 14 – as is officer Daren DeAguero, who on Jan. 10 was scheduled to appear in DWI cases before Judge Jill M. Martinez, Judge Sharon D. Walton and Judge Kenny C. Montoya – all at 9 a.m.

Officer Jason Brown was also scheduled to appear as the main witness in six drunken driving cases at 9 a.m. Jan. 10 in front of different judges, but he had a family emergency.

Of all the cases in which McCarson, DeAguero and Brown were scheduled to testify that day, only one was dismissed outright, and that was on a defense motion arguing the police stop was unwarranted.

All of the others were rescheduled for hearings in February – and all are still subject to dismissal if officers don’t appear or prosecutors don’t meet other requirements.

“Judges are still dismissing cases when officers are in the courthouse,” Atkinson said. “Those cases can be refiled, but it shows a lack of leadership.”

Atkinson said judges should hold scheduling conferences in DWI cases and set firm trial dates.

“Instead they schedule a case for trial month after month until the officer can’t show up to testify and the case gets dismissed,” she said.

Chief Metropolitan Judge Edward L. Benavidez didn’t return a call seeking comment.

The trial scheduling issue for officers in court is compounded by the requirement they testify at Motor Vehicle Division license revocation hearings for people who challenge the civil penalty of losing their licenses because they refused to take an alcohol breath test or tested at or above 0.08 blood alcohol – the presumptive level for drunken driving in New Mexico.

Those hearings can also conflict with court hearings officers must attend, according to officer schedules released by APD to the Journal.

Interview times

Courtroom scheduling is a challenge, but one prosecutors can sometimes fix by refiling the charges – assuming the dismissal is without prejudice.

Getting officers to pretrial interviews with defense attorneys is a tougher nut to crack.

“It becomes a fax battle on dates of officer availability,” Torrez said in an interview. “All the scheduling for pretrial interviews is handled by fax machine, if you can believe that in this day and age.”

New Mexico is one of a minority of states requiring prosecution witnesses be made available for pretrial interviews in misdemeanor cases, which includes most DWI cases.

Torrez said he believes only five to 10 states require pretrial interviews for misdemeanors like DWIs.

“It takes officers off the street and has an impact on resources,” he said.

Because even a first-offense DWI conviction carries the possibility of a 90-day jail sentence – seldom imposed – anyone charged is entitled to an attorney whether they can afford one or not.

Defense attorneys contacted by the Journal for this story said most of the problems were between the police agencies and the District Attorney’s Office.

They pointed out it is a defense attorney’s job to raise any legitimate defense to the government’s charges.

Meanwhile, the District Attorney’s Office is in line for a grant of $450,000 over the next 18 months from the state Department of Transportation to address the pretrial interview scheduling problem and other issues.

Collecting evidence

For police and prosecutors, getting a conviction for drunken driving has become an exercise in logistics. Cases that get to the actual trial stage typically end in a conviction, but it’s a difficult road to get there.

There are five pieces of evidence that are essential for prosecuting a drunken driving case.

Those are:

• The police officer’s report of the arrest.

• The printouts of the computer-aided dispatch logs and audio of the radio transmissions between officers and/or dispatch.

• The lapel camera video or dash camera video or audio tapes made by officers during the arrest.

• The card showing the defendant’s breath alcohol level if they agree to the test.

• The “tow sheet” records that show when and where the driver’s car was towed from and where it was secured.

Some issues have been resolved, such as prosecutors getting officer lapel camera videos so they can provide them to defense lawyers.

Outside of Bernalillo County, prosecutors give defense attorneys what is called a “speed letter” that the defense attorney can then give to the police agency making the arrest to get much of the information. But in Bernalillo County it has to go through the District Attorney’s Office. The Bernalillo County process is required by Metropolitan Court rules.

Copies of the breath alcohol card, tow sheet and citation are given to the defendant at the time of the arrest but, according to Metro Court rules, prosecutors have to turn them over to the defense lawyer before trial.

When an APD officer is getting off shift, the officer scans the police report into one system. The tow sheet gets scanned into another system, and the breath card is scanned into a third system.

Those records go to the APD records center, where they are rescanned and sent on to the DA’s Office.

And sometimes those records can go astray or take longer to put together than prosecutors would like.

Some agencies, like the Bernalillo County Sheriff’s Office, walk the packet of evidence over to the prosecutor’s office for each case.

Torrez says there is a fix on the horizon for this piece of the logistics obstacle course.

“We will be hiring people in April with the state grant money to put over at APD to start working on fixing the system,” he said. “Once we identify what needs to be fixed, we’ll fix it. But it will require retraining for everyone involved.

“I’m less interested in the evolution of how we got here than I am in fixing the problem.”

DWI crimes and punishments

In New Mexico, it is illegal to drive with a breath or blood alcohol level of 0.08 or more for someone 21 or over, or 0.02 for people younger than 21, or 0.04 for someone driving a commercial vehicle.

A person can lose his or her license for up to a year for testing at or above the legal limit, or for refusing to take the breath or blood test.If convicted of a first-offense DWI, a person faces up to 90 days in jail but will more likely get probation with mandatory DWI school attendance and ignition interlock for up to a year.Penalties increase for each subsequent conviction until it becomes a third-degree felony for a seventh DWI conviction punishable by a three-year prison sentence.A person can be convicted of DWI, even if the breath or blood test is below the legal limit if it is proven that the ability to drive was impaired to the slightest degree by drugs or alcohol.