Getting drunks off the road
When it comes to serial drunk driving offenders, there’s plenty of frustration to go around. From the police making the arrests to the attorneys prosecuting the cases to the general public concerned for their safety, no one wants to share the road with drivers who make a habit of endangering lives by getting behind the wheel when they’re in no fit state to drive.
As a recent case in Socorro Magistrate Court shows, however, successfully prosecuting a drunk driver can be easier said than done.
Charles Esposito, 60, of Socorro, was stopped on Jan. 3 for driving under the influence. The arresting officer pulled up Esposito’s driving record from the state Motor Vehicles Division database and saw he had four prior citations for DWI. Esposito was charged with a fifth DWI — a fourth degree felony. He was also charged with failing to maintain his lane (a petty misdemeanor), having an open container in his vehicle (a misdemeanor), and with not having proof of registration and insurance (also misdemeanors).
On Feb. 29, Magistrate Jim Naranjo accepted a plea and disposition agreement, allowing Esposito to plead guilty to a second DWI — a misdemeanor, not a felony — and the balance of the charges against him were dismissed.
Had Esposito been convicted of a fifth DWI, state law would have required him to spend one year in prison, pay up to $5,000 in fines and undergo mandatory drug and alcohol screening and treatment. He would have been faced with a lifetime ignition interlock requirement with a 5-year court review, or even a possible lifetime license revocation.
Instead, Esposito was sentenced to pay a $500 fine, spend 96 hours in jail, and do 48 hours of community service. He was ordered to undergo screening and treatment, install an interlock device for just two years, and spend two years on supervised probation.
The question some people would ask is why Esposito was allowed to plead down to a second offense. Did he get off too easy? The case file sheds some light on the problem, but raises more questions.
Esposito’s case was assigned to Assistant District Attorney Keith Valles on Jan. 4. A preliminary hearing was scheduled for Jan. 18 in Magistrate Court.
Valles’ first task was to chase down the evidence.
“What we do have to do is request a certified printout of the prior charges from MVD. It takes about 30 to 60 days to get the documents from Santa Fe.” Valles said.
The certified printout bears the seal of the state, and has to be accompanied by abstracts (certified copies) of the actual citation written by the arresting officer for each prior charge.
Valles also made an official request to the police department to provide him with the evidence taken by the arresting officer when Esposito was stopped on Jan. 3. In this case, the officer had checked off two items on the evidence submittal form provided to the DA’s office by SPD; the audio-visual recording, from the digital video camera worn by the officer on the front of his uniform, and photographs taken at the time of arrest.
By Jan. 18, the date of Esposito’s preliminary hearing, neither request had been filled.
Valles came up empty-handed on the request made to the police department; it came back Feb. 7 with two words: None found. Valles offered some possible explanations.
“The officer might have submitted his digital recording and photographs in batches, and it wasn’t separated out or labelled. Or there might have been equipment failure,” he said. “The equipment is great — when it works, it’s wonderful — but it doesn’t always work. When we get it, it can be devastating.”
This time, whatever the reason, the DA’s office didn’t get it. That presented Esposito’s public defender with some leverage.
“The defense attorney will make the automatic motion to suppress any evidence that you haven’t been able to provide them,” Valles said.
At that point, Valles could have subpoenaed the police department’s evidence officer and other people to testify, but in the meantime there were more challenges for the prosecution. The certified documents from the state MVD office came back with copies of four citations, but two of them were issued to a man named Anthony Espinoza, and the citation numbers didn’t appear to match the MVD printout. A third may have been issued to Esposito, but it was so dark it was hard to tell.
“If the arrest was earlier than about the 1990s, the abstracts are often illegible,” Valles said.
So the DA’s office was left with evidence of two out of four priors, one of which was of poor quality.
“If we had gone to trial, we probably could have proven a third offense, but we don’t have the resources to take all these cases to trial,” Valles said. “We have to consider what is in the best interests of judicial economy, while ensuring that the driver is both punished and rehabilitated.”
Rehabilitation is the bottom line.
“They need to be held accountable, but we also need to recognize that they need to get treatment. If the case is dismissed, they’re not going to get treatment, obviously,” Valles said.
Paperwork snafus happen all the time.
“Sometimes, you have people with the same name, same year of birth, similar birth dates — it goes back to the issue of charging them with what we can prove,” Valles said. “And you have to bear in mind that charges are largely based on whether they’ve been arrested for DWI before, not necessarily on prior convictions.”
Sometimes, the charges are based on arrests or convictions that happened in another state. In those cases, the odds are against getting the evidence they need. There hasn’t been a statistical analysis done, but Valles estimates that he only gets documents requested from out of state about 30 to 40 percent of the time.
“And it may not necessarily prove the prior DWI. That’s not a very good percentage, but we still try,” he said.
There are other challenges. Arresting officers are not always available to testify and witnesses don’t always make it to court.
“Recent supreme court decisions have made it harder to convict,” Valles said. “Now it’s pretty much a requirement that if there’s a blood test, we have to get the blood analyst who actually tested that blood up in Albuquerque down to trial to testify in order to get the blood results admitted into evidence.”
Blood analysts from the state lab test hundreds of blood sample a year, and may receive hundreds of subpoenas to testify every year from all over the state.
Mental illness can also be a complicating factor. Valles said it’s not uncommon for habitual offenders to be dealing with some combination of long term drug and alcohol abuse and mental health factors that cause the issue of competency to stand trial to be raised.
“That’s an unclear point in New Mexico, whether or not we have to dismiss the case under the statute if a defendant is found incompetent on a felony DWI,” Valles said. “There is, in fact, a difference of opinion. It’s a gray area of the law that the legislature needs to provide more guidance on.”
The DA’s office also has to weigh the amount of work it could take to be successful in one single trial against the amount of resources available to deal with all pending cases. In the Seventh Judicial Court District, there are an average of 200 DWI cases to deal with every single year, out of which about three dozen are initially charged as felonies. This is one of the reasons a plea agreement is often preferable to taking a case all the way to a jury, even if the offender has been allowed to plead down to a lesser offense once or twice before, and why Valles doesn’t believe in a one-size-fits-all solution.
“My opinion is, the greater the prosecutorial discretion, the more likely it is that we’re going to be able to deal with the situation successfully,” Valles said. “Every case is different, every case is potentially unique.”
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