DWI defense lawyers push for new law to make sleeping it off in car not "driving" while intoxicated

Edgewood, NM

At what point did it begin to make sense to the DWI industry that sleeping in a parked car constitutes "driving" while intoxicated?

A group of New Mexico defense attorneys is pushing to change DWI laws after an Edgewood man was recently convicted for DWI even though he wasn't driving.

Fidencio Francia was convicted of DWI a few weeks ago after he was caught by police drunk and sleeping in his truck.

Francia admits he drank, but he insists he did not drive. He lost the case anyway. That has many New Mexicans outraged.

"People should be rewarded, to some degree, for acknowledging the fact that they should not be driving. Even if they made the initial mistake of starting to drive but they realize it," said Ousama Rasheed of the New Mexico Criminal Defense Lawyers Association.

Rasheed says Francia's case is an example of someone who did the right thing but was convicted of DWI anyway. Rasheed now wants to propose a change to DWI laws that would make what Francia did a petty misdemeanor instead.

He proposed a penalty of up to 90 days in jail, a $500 fine and attending a DWI school. However, you would not end up with a DWI on your record.

"Had Dana Pabst slept in his vehicle instead of driving, had Gordon House slept in his vehicle instead of driving, had Lloyd Larson slept in his vehicle instead of driving, that would have been a lot of lives that would have been saved," said Rasheed.

But the DWI Resource Center is absolutely against the proposal. Officials say DWI laws need to stay exactly the way they are.

"When someone's passed out, sleeping in their vehicle, who has the crystal ball to say they're not going to wake up and drive down the road still impaired," said Linda Atkinson.

Rasheed says he's in the process of drafting a bill and finding a state legislator to sponsor it. He expects it to be introduced in the January legislative session.

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U.S Supreme Court DWI anonymous tipster ruling "not a problem" in NM

Farmington, NM

Anonymous tipsters: How do you prove the nonexistence of a rat?

The U.S. Supreme Court recently refused to hear a case where a drunken driver's conviction was overturned because the arresting officer pulled the driver over based on an anonymous tip.

It is not likely such a conviction would result in New Mexico, as officers are encouraged to rely on direct observation instead of anonymous tips when making a traffic stop, officials said.

Joseph A. Moses Harris was convicted of drunken driving after police in Richmond, Va., received an anonymous tip that he was driving intoxicated, but the arresting officer did not see Harris break any traffic laws.

"The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road — by which time it may be too late," Chief Justice John Roberts wrote in his dissent.

The decision of the U.S. Supreme Court to refuse to hear the appeal is consistent with New Mexico state law, Chief Public Defender Christian Hatfield said.

"In order to detain a person for investigative purposes, the police have to have reasonable suspicion that a crime is about to or is being committed and that has to be based on articulable facts," Hatfield said. "Just a hunch is not good enough."

A majority of courts have said it doesn't violate the Fourth Amendment protection against unreasonable search and seizure to pull over drunk drivers based on anonymous tips from programs like Drunk Busters,
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Roberts said.

But unless a tip is highly credible and specific, officers themselves are required to determine justification for a traffic stop.

"We don't pull people over just because someone reported seeing something that indicated they might

be impaired," San Juan County Undersheriff Mark McCloskey said.

Police locate the vehicle and observe it, looking for a traffic violation or driving maneuver that would indicate impairment, he said.

Indications of impairment that would establish reasonable suspicion are things such as driving too fast or too slow, straddling the shoulder line and weaving.

It's not absolutely necessary for an officer to see a violation, but the credibility of the tipster and the reliability of the information can be called into question, said Assistant District Attorney Chris Moander.

The traffic violation always is good but if other events such as specificity of a person, plate numbers and erratic behavior can be articulated by a tipster, an officer can develop a basis for a stop, Moander said.

A tip from another officer or a person giving detailed information about a possible drunken driver who is swerving and hit a pole would be better than a vague tip about a car that crossed the center line once.

"Generally speaking, if a cop gets a tip, it's a good idea to observe some bad driving as well," Hatfield said.

There are no limits on how long an officer can follow a driver to determine justification for a stop.

Nothing legally prohibits an officer from following a driver as long as they need in order to establish reasonable suspicion to pull the driver over or until the officer is satisfied there are no indications of impairment, McCloskey said.

"It's difficult, if not impossible to get a conviction in New Mexico courts if all you have is a third party report of a drunken driver and the officer hasn't observed that first hand," McCloskey said.

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Trial of lawyer accused of fatal DWI continues in Santa Fe

Santa Fe, NM

It is a shame in this country that only those defendants who have the means to retain the legal services of a team of top criminal defense lawyers have a real chance at a fair trial and obtaining justice.

The defense team representing a high-powered attorney accused in a deadly DWI hit-and-run was in a Santa Fe courtroom Thursday asking that some evidence in the case be thrown out.

In the end, most of the motions were dismissed, and prosecutors say they intend to use every shred of that evidence against Carlos Fierro during trial.

The judge will allow statements that Fierro made at the traffic stop and on the way to the hospital to be used at the trial.

Fierro is accused of driving drunk last November, hitting and killing 46-year-old William Tenorio near the Santa Fe Railyard.

Fierro's attorneys are trying to get the blood draw taken from Fierro thrown out, saying the nurse admitted she may have used a different needle than the one that came with the test kit.

They also cross-examined police about when Fierro was actually placed under arrest and whether he was ever read his rights.

The defense says an officer didn't read Fierro his rights until after a written statement was taken from him.

Prosecutors say that's because this started out as a DWI case, and Fierro wasn't charged with the hit-and-run that killed Tenorio until a little later.

They also say that as an attorney, Fierro should've known his right to call a lawyer.

The defense wanted to get an extra three months to build its case, but the judge will only push the trial back a week.

The trial is set to begin the end of September.

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Hypocrite: County substance-abuse counselor convicted of driving while intoxicated

Albuquerque, NM

hyp·o·crite [hip-uh-krit]

–noun

1. a person who pretends to have virtues, moral or religious beliefs, principles, etc., that he or she does not actually possess, esp. a person whose actions belie stated beliefs.

2. a person who feigns some desirable or publicly approved attitude, esp. one whose private life, opinions, or statements belie his or her public statements.

[Origin: 1175–1225; ME ipocrite < OF < LL hypocrita < Gk hypokrits a stage actor, hence one who pretends to be what he is not, equiv. to hypokr(nesthai) (see hypocrisy) + -tés agent suffix]

A Bernalillo County employee who helps troubled workers and is up for promotion to run a substance-abuse program was convicted Monday of drunken driving.

However the trial was delayed for more than an hour when the officer who arrested Carl Broach failed to appear in court.

Broach already is a manager in the county's Department of Substance Abuse Programs . He withdrew from being considered for a promotion to run the department.

Officer Stefan Torres pulled Broach over in December, and Broach's attorney challenged his reasons for doing so based on inconsistencies in the police reports.

"Did you sign a citation in connection with this case?” defense attorney David Serna asked. “No.” Torres answered.

“Are you sure about that?” Serna said. “Yes.” Torres replied.

A few questions later Serna showed Torres a different citation and asked him, “Is that your signature on the citation that is sitting in the court file?” Torres conceded it was.

Serna then told the court that because the officer later changed his reasons for pulling Broach over those actions should be enough throw the case out.

"The officer's version of the facts are not worthy of belief," Serna said outside the courtroom.

However prosecutor Letitia Carroll with the district attorney's office said the officer knows he screwed up.

"It's a mistake that he owned up to," she told reporters. "It was a pretty big mistake, and I think he paid for it on the witness stand.”

But she said that doesn't change the facts about Broach's level of intoxication.

"He was drunk," Carroll said. "A 0.18 is a high breath score.

"That's what he blew that night, and he was driving a car."

The judge agreed and found Broach guilty of aggravated DWI and driving in the wrong direction.

Now the question is what happens to Broach's position with the county?

County spokesperson Liz Hamm said his job and future with the county are under administrative review, she added.

"The county manager is aware of the conviction, and he is also aware of the seriousness of the offense," Hamm told KRQE News 13.

Broach will have to serve two days in jail. He will also be on probation for a year and have to have an interlock device in any car he drives.

After the hearing Serna said he and Broach will appeal the conviction. They have 15 days to do so.

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Big Brither interlock pics, photos show who blows into mouthpiece

Albuquerque, NM

Big Brother is watching you.

Convicted drunk drivers will find beating the system to be more difficult now that ignition interlocks come equipped with cameras.

Judges in Bernalillo County Metropolitan Court in Albuquerque will now start ordering some drunk drivers to use the camera-equipped devices.

The devices require someone convicted of DWI to blow into a mouthpiece to confirm they have not consumed alcohol before the ignition can be started.

Traditional interlock devices have been successful in ensuring most people with a history of DWI don't get behind the wheel drunk again, according to the state. However many of them have found ways around it often getting friends or family to blow into the interlock.

The camera device doesn't allow that. It takes a picture of the person who blows into it and then downloads the picture and information on blood alcohol level, so that judges, attorneys and others can see it.

That assures the correct person is behind the wheel.

Metro Court Chief Judge Judith Nakamura said the interlock cameras will not be required for everyone. A judge will have the discretion in which cases to order them, she said.

Unfortunately, Nakamura added, the cameras are necessary for many defendants.

"There are always people who are going to try and beat the system, and it's certainly important to use this tool with those folks," she said. "Ideally it would be great to have a police officer or probation officer following people convicted of crimes around.

"That's not possible, so for those who are trying to cheat in this manner, this is a great tool to have."

At this point the state is against making the cameras mandatory. State officials said in most cases the current interlocks are efficient, which is why they are leaving the decision up to a judge.

Using the camera interlock costs the driver an extra $1 a day. Offenders are responsible for paying for the device, but if they can't afford it there are state funds to help.

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New Mexico man's 8th DWI arrest

Albuquerque, NM

Ray Lopez may not live his life to the letter of the law. He may not be the most cautious driver. He may not learn from his mistakes. He may not know when to say when.

Judging from the picture, however, he does appear to be a very happy drunk with an incredibly positive attitude. In that respect, more people should be like Ray and his example a lesson to us all.

An Albuquerque man is in jail after receiving his eighth DWI arrest.

State Police Spokesperson Lieutenant Eric Garcia said that Ray Lopez Jr., 51, was driving 50 miles per hour in a 65 mile per hour zone on Interstate 25 south of the Comanche exit at 3:30 pm Wednesday.

The state police officer smelled alcohol, and found two open containers of beer in the 1986 Honda Lopez was driving.

Lopez was then given a field sobriety test which he failed.

In addition to his eighth DWI, state police also charged Lopez Jr. with tampering with evidence, altered or forged registration, driving on a revoked license, minimum Speed, careless driving, open container and failure to signal.

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MADD report on multi-DWI offenses blames prosecutors, judges

Albuquerque NM

MADD complains, "lenient sentencing is allowing repeat drunk drivers behind the wheel over and over again...and recommends that probation officers or court officers check on drunk drivers to make sure they don't have access to a car."

Make sure they don't have access to a car? MADD's final solution must be life imprisonment or execution for first-time DWI offenders.

The true danger to people in the community is that good people who mean well may fall for the DWI industry propaganda spewed by MADD.

Mothers Against Drunk Driving says judges and prosecutors are letting convicted DUI offenders off the hook and endangering people's lives.

In a report released Thursday, the group says lenient sentencing is allowing repeat drunk drivers behind the wheel over and over again.

MADD followed 1,300 cases to pinpoint why so many offenders got off the hook. They say in a large number of cases, convicted DWI offenders were allowed to plead down to lesser charges.

At Albuquerque's Metro Court, MADD says 42 percent of the drunk drivers who pleaded guilty ended up getting convicted of lesser DWI charges.

In the majority of those cases, the guilty were initially charged with aggravated DWI for either driving extremely drunk, or because they were repeat drunk drivers. MADD says judges and prosecutors should stick with the original, tougher DWI charges to keep repeat drunk drivers off the street.

"That someone who is fairly intoxicated, that's a true danger to people in our community. So we want to make sure that doesn't continue to happen to people in the future," MADD's Lora Lee Ortiz said.

Bernalillo County's chief DWI prosecutor Gary Cade says those types of convictions would be great in a perfect world. But with more than 7,000 DWI cases filed at Metro Court in 2007, each one with a six-month deadline, he says it is impossible.

"If push comes to shove and we have a choice of taking a DWI, and getting the conviction or getting it as an aggravated DWI, we will generally go for the conviction," he said.

Another problem—in McKinley County, 72 percent of interlock requirements were waived in court, according to MADD, because the court took drunk drivers at their word when they claimed they did not own a car.

The report recommends courts actually check with MVD on the veracity of those claims—a policy already implemented in Albuquerque.

MADD also recommends that probation officers or court officers check on drunk drivers to make sure they don't have access to a car. The group also wants to see DWI offenders who claim not to own a car be required to wear an alcohol monitoring device.

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Police: Man blames bad driving on spilled beer

Albuquerque, NM

Today is Albuquerque Day in DWI news. Trying to explain away weaving in and out of traffic by telling the cop your passenger spilled a beer may be the basis for a persuasive argument the driver's judgment is impaired.

What was this guy thinking?!

A man with four previous drunken driving convictions who was stopped for weaving in and out of traffic on Interstate 40 was ready with an excuse for his poor driving: his passenger spilled his beer.

Not surprisingly, the man was arrested just before midnight Saturday, said state police officer Kurtis Ward, who said he initially thought the driver was joking.

"He was so matter of fact about it, like it wasn't a big deal," Ward said.

The 31-year-old man was allegedly too drunk to perform field sobriety tests and was arrested on aggravated drunken driving charges, court records said.

Ward found four opened bottles of beer in the car, court records showed.

It was the man's sixth DWI arrest. He had been found guilty of four of five previous drunken driving charges and has paid $1,750 in fines, the DWI Resource Center said.

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DWI arrests: Good or bad sign for DWI industry?

Albuquerque, NM

The more DWI arrests the better, right? It depends on the spin.

According to the DWI industry, tons of DWI arrests are proof that enforcement efforts are effective and the tax dollars used to fund them are well spent. DWI arrests also are proof that the DWI industry's prevention efforts are a dismal failure.

What do you think?

After another DWI-related crash in Albuquerque Friday morning, many are wondering if anti-DWI commercials are working and if the state can do more to battle the problem.

The latest crash happened after a 24-year-old man led police on a chase that ended with the suspect crashing his truck into a wall in the South Valley. Officers who searched the man's car found open beer cans inside.

The incident is just the latest in an ongoing game of cat-and-mouse between officers and drunk drivers in Bernalillo County. So far in 2008, officers have arrested 5,046 people for driving under the influence. That averages to about 19 arrests per day.

Linda Atkinson of the DWI Resource Center say she doesn't like hearing new reports of DWIs, but does like seeing offenders thrown behind bars.

"It's a duel edge sword. I'm mean, it's a good thing we're getting them off the road. But it's a bad thing, because they're still drinking and driving," she said.

DWI Sgt. Angel Torres of the Bernalillo County Sheriff's Office also feels arrest numbers, which could match 2007's, are a mixture of good and bad.

Both Albuquerque police and the Bernalillo County Sheriff's Office plan more checkpoints and DWI patrols this year.

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Daughter of anti-DWI crusading Senator arrested for aggravated DWI following crash

Albuquerque, NM

hyp·o·crite [hip-uh-krit]

–noun

1. a person who pretends to have virtues, moral or religious beliefs, principles, etc., that he or she does not actually possess, esp. a person whose actions belie stated beliefs.

2. a person who feigns some desirable or publicly approved attitude, esp. one whose private life, opinions, or statements belie his or her public statements.

[Origin: 1175–1225; ME ipocrite < OF < LL hypocrita < Gk hypokrits a stage actor, hence one who pretends to be what he is not, equiv. to hypokr(nesthai) (see hypocrisy) + -tés agent suffix]

The daughter of a state senator who has led the crusade against drunken driving has been arrested on a charge of aggravated driving while intoxicated.

Kady Cravens, 21, was arrested Sunday after crashing her car into a median. Police said her blood-alcohol level was nearly three times the legal limit.

Cravens is the daughter of Sen. Kent Cravens of Albuquerque, who has pushed for tougher DWI laws since becoming a state legislator in 2001. His sister-in-law and her three daughters were killed by a drunk driver on Christmas Eve 1992.

The senator said his daughter was going to enter rehabilitation, according to a copyright story published Tuesday by the Albuquerque Journal.

"We offer our sincere apologies to the people of the state of New Mexico," Kent Cravens said in a statement. "If there is anyone who should have been equipped to make better choices, it is Kady. She is extremely distressed at present and understands the full gravity of this situation. She has resolved to do what is necessary to reconcile this indiscretion."

Cravens also said he's committed to the fight against DWI.

"This incident underscores the fact that alcohol abuse is still very prevalent and that

Click Here to watch the local NBC television station's story on Kent Craven's daughter's arrest.

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New Mexico man arrested for 11th DWI

Gallup, NM

The system is broken.

McKinley County sheriff's Sgt. Tom Mumford has seen countless drivers under the influence of alcohol or drugs.

But when he busted a Ft. Wingate man on his eleventh DWI charge, he shook his head in bewilderment. "Hopefully this guy is put away," he said.

Precopio Montano, 53, was arrested Friday morning after Mumford found Montano's vehicle stuck in a ditch.

"When I arrived on scene, the driver had the strong smell of alcohol on his breath and could barely stand he was so intoxicated," Mumford said. Not only was Montano driving on a revoked license, Mumford said he had no insurance and his vehicle's registration was expired.

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New Mexico man arrived at court drunk be sentenced on his 11th DWI conviction

Las Cruces, NM

The only thing worse than showing up in court drunk to be sentenced for your 11th DWI is having gotten drunk before court at a 100th birthday party...

A Las Cruces man was sentenced Tuesday on his 11th drunken driving conviction, almost 40 days after his original sentencing date, for which he arrived drunk.

Anthony Sierra, 34, was given the maximum sentence of three years, six months in state prison by District Judge Mike Murphy in addition to a $10,000 fine and five years probation after being released from prison.

Sierra was given three years for a third-degree felony aggravated drunken driving and six months for a petty misdemeanor charge of concealing identity.

"This is a very interesting case from where I sit, tragic from where your wife and children sit and I can't imagine what it's like where you stand," Murphy told Sierra.

Sierra pleaded guilty to the charges last September and later unsuccessfully attempted to withdraw his plea. He was to be sentenced Jan. 11 but was instead found in criminal contempt of court by Murphy because he arrived drunk, and was given a 40-day sentence at the Doña Ana County Detention Center.

Sierra's three-year, six-month sentence will begin Thursday when his 40-day sentence expires.

District Attorney Susana Martinez said Sierra indicated he had been drinking at his grandfather's 100th birthday party.

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Repeat DWI offender rams cop's SUV, leads high-speed chase

Albuquerque, NM

He'd been arrested 9 times before for DWI...as recently as the previous Saturday. Ramming the cop, then leading them on a high-speed chase: Not a good move.

A man with a record of nine arrests for drunken driving is accused of ramming a deputy’s car when he was pulled over for suspected DWI Tuesday evening.
A deputy says that she pulled over 56-year-old Terry Brooks after receiving reports that he was driving drunk.

But before the deputy could approach Brooks’ driver’s-side window, she says he threw his car into reverse and rammed the front of her SUV, crumpling the hood and front end.

Brooks then reportedly sped off and led officials on a chase of several miles before crashing into a yard. More >>

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New Mexico legislature knocks down draconian DWI bill for the 7th time in 7 years

Albuquerque, NM

Best quote from the crazy State Senator who introduced the bill that has been shot down 7 times in as many years:

"It's just an absolute crime that we allow our citizens to have to go out on the streets day after day, night after night, getting killed because of multiple offenders."

I agree. He should be charged, tried, convicted, and sentenced to life as a "habitual offender" under New Mexico law based on his frank admission of repeated crimes against the citizenry.

A plan endorsed by the governor and law enforcement to crack down on repeat drunk drivers was shot down in the State Legislature Friday.

The bill would have classified repeat drunk drivers as "habitual offenders" and allowed judges to hand out longer sentences.

Under current law , a drunk driving felony is treated differently than every other kind of felony, which means repeat drunk drivers are not habitual offenders.

The bill, which had the backing of Governor Bill Richardson and state law enforcement, was called too harsh, too punitive, and did not include treatment for drunk drivers.

Senator Joseph Carraro said tougher laws were needed to make the state's roads safer.

"It's just an absolute crime that we allow our citizens to have to go out on the streets day after day, night after night, getting killed because of multiple offenders," Carraro said. "These people have been out there driving thousands of times, but they've only been caught probably five, six, 10, 12, 17 times--but these people need to be off our street." More >>

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New Mexico man indicted for 10th DWI arrest

Las Cruces, NM

A Summary: At 4:30 PM, a homeless man with 9 previous DWI arrests, still drunk from the night before, was pulled over while acting as the designated driver for his passenger, a man the cop (who once arrested a man with 23 prior DWIs) previously had arrested twice for DWI.

A homeless man was indicted Thursday after his 10th DWI arrest, according to court records.

The officer who arrested him said it is not the first time he has seen a 10-time offender.

Jose A. Gonzalez, 54, who once listed an address in La Mesa, N.M., was pulled over Jan. 5 for speeding in Vado, said arresting officer New Mexico State Police Patrolman Diego Herrera. Herrera said when he turned his siren on, he noticed Gonzalez attempt to turn away and almost hit a light pole. When Herrera walked up to the car he said he smelled alcohol and noticed several beer cans in the car. Herrera said when he asked Gonzalez to step out of the vehicle, he could not stand on his own and had to use the car to balance himself.

"What I remember the most about this arrest is that it was 4:30 in the afternoon and he said he was hung over from the night before," Herrera said. "I recognized the passenger. I had arrested him twice before for DWI."

Gonzalez refused a breath alcohol or blood test and was charged with aggravated driving while intoxicated, Herrera said. More >>

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Pope waives hearing on DUI charge

I know nothing of the New Mexico State basketball roster, but this headline sure caught my attention...

New Mexico State University freshman forward Herb Pope waived his right to a preliminary hearing in Allegheny County District Court on Tuesday.

Pope initially faced misdemeanor charges of underage drinking, drunken driving and other charges, including recklessly endangering another person, stemming from a Dec. 28 arrest by police in Moon, Pa. Pope was found unresponsive in the driver's seat of a vehicle. Pope's attorney, Pittsburgh area lawyer Arnold Klein, said the underage drinking charge was dropped.

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New Mexico deploys 500 sexy-talking urinal cakes to combat drunk driving

Rio Rancho, NM

Caption #1: That's not the only thing I have in my hand, sweetheart.

Caption #2: Is this intended to combat drunk driving or to let men in New Mexico know they can't even go to the men's room without a woman telling them what to do?

New Mexico is taking its fight against drunken driving to men's restrooms around the state.

The state has ordered 500 talking urinal cakes that will deliver a recorded anti-DWI message to bar and restaurant patrons who make one last pit stop before getting behind the wheel.

When a man steps up, the motion-sensitive plastic device says, in a woman's voice that is flirty, then stern:

"Hey, big guy. Having a few drinks?

Think you had one too many?

Then it's time to call a cab or call a sober friend for a ride home.

Remember, your future is in your hand."

Transportation Department spokesman S.U. Mahesh said the urinal cakes are a way to reach one group that's a target of state safety campaigns. Men commit about three times as many drunken-driving infractions as women. More >>

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