DWI arrests down during COVID
DWI-related accidents, however, doubled last year during the pandemic
There were a lot fewer drunken driving arrests in Bernalillo County last year, as DWI cases filed in Metropolitan Court fell by more than 1,000 after the COVID-19 pandemic closed bars, nightclubs and entertainment venues.
But that didn’t mean there were fewer DWI-related accidents. In fact, there were twice as many as there were in 2019, according to a spokesman for the District Attorney’s Office.
DA’s communications director Brandale MillsCox said that the number of DWI cases filed last year fell from 2,967 to 1,924.
“Even though there was a significant reduction in overall cases, the number of accident-related cases doubled,” Mills-Cox said.
Thirty-nine of the 110 traffic accidents involving fatalities in Bernalillo County last year involved
alcohol, according to a study done by the University of New Mexico for the state Department of Transportation.
While it would appear there were fewer people driving under the influence, Chief Metropolitan Court Judge Maria Dominguez said the DWI cases filed last year tended to include more people “with deeper substance abuse issues.”
Tonie Abeyta, Metropolitan Court managing attorney for the Public Defender’s Office, said that with bars being closed “we didn’t have many cases of a person having one drink too many, and with remote learning we were not seeing college students.”
Almost 80% of those charged with DWI in Bernalillo County last year qualified to be represented by the Public Defender’s Office — up from 55% the previous year.
Virtual proceedings
The pandemic forced Metropolitan Court to go virtual.
It wasn’t easy and it wasn’t perfect but misdemeanor criminal cases like domestic violence, criminal trespass and drunken driving continued to be processed throughout the year.
“It was a huge adjustment,” Dominguez said. “Over the course of the year we made great progress.”
She said it helped that Metropolitan Court judges had been using video arraignments for years.
After the court obtained licenses to use Zoom for court hearings and bench trials, the judges found there was still a lot of work to do.
“We had to make sure people got into the right virtual courtroom,” Dominguez said.
The court set up an electronic sign-up system and virtual waiting rooms for defendants, attorneys and witnesses. The court also set up a virtual “break out room” where police officers who were prosecuting some misdemeanors like traffic tickets could meet with defendants and/or their attorneys to see if the case could be resolved without a trial.
From last March until earlier this month there were no jury trials, though anyone facing a sentence of 90 days to six months in jail could request a jury trial. Some cases had to be delayed.
But Dominguez said prosecutors tried to keep criminal charges in many cases below the 90-day jail threshold by dismissing less serious charges and there were virtual trials before a judge that were handled over computer and telephone.
In-person bench trials were only allowed under “extraordinary” circumstances and had to be approved by Dominguez. Those circumstances included defendants where mental competency was an issue or there was a speech or hearing impediment or language barrier.
Public defender Abeyta said virtual hearings involving an interpreter were difficult.
“The translation became very disjointed in some cases,” she said. “And if the defendant was on a telephone instead of Zoom it was difficult to pick up visual clues to help the translator. There were the issues with “mute” and “unmute.”
Interpreters had difficulty translating for defendants who were using telephones to participate in the online hearings.
Streamlined process
Prosecutors and police said they had few problems with the courts moving to a virtual system during the pandemic.
“All our training now has to be done virtually,” Mills-Cox said. We have made the switch to paperless systems, electronic discovery and a more streamlined process. Overall, we have become more efficient and effective in prosecution.”
An APD spokeswoman said, “Metro court settings went well. There were no dismissals due to the COVID pandemic and video settings. The courts adapted and as the officers transitioned to Zoom setting and video trials, everything worked well.”
Dominguez said prosecutors and attorneys from the Public Defender’s Office cooperated in overcoming technical problems over the past year.
Challenge for lawyers
The transition to virtual and telephone was more difficult for attorneys in the Office of the Public Defender.
“More people qualified for our services because of the pandemic,” Abeyta said.
“Many of our clients don’t have a phone or have cellular phones with limited minutes,” she said.
For instance, waiting on a cellphone for 30 minutes for a hearing to start can take a bite out of a typical 200 minutes-a-month low-cost cellphone plan, and that doesn’t include the length of the hearing itself.
“We had people running out of minutes or unable to pay their telephone bills,” Abeyta said.
Telephones were the only way for many to attend a virtual court hearing because poor people have less access to computers, she said.
“We set up our conference rooms so an attorney and client could socially distance but use computers to be on Zoom,” Abeyta said.
She said the pandemic highlighted the lack of technology available to people with low incomes.
Dominguez said the court also set up computers at the courthouse for attorneys and their clients to use.
“Some of the private attorneys did not have offices that allowed computer access for the attorney and their clients while being socially distant,” Dominguez said.
She said some of the virtual court might continue after the pandemic ends for some hearings.
“We have to be careful not to lose the humanity of judicial system,” she said.
Prosecutors are constitutionally required to disclose evidence that could be favorable to a defendant to defense attorneys, including whether their law enforcement witnesses have been found to be unreliable or biased. If they don’t, they can be penalized and even disbarred.
But law enforcement officers don’t face penalties for not sharing their misconduct with prosecutors.
Senate Bill 192 would change that.
The bill — drafted by the 2nd Judicial District Attorney’s Office and sponsored by Senate Majority Whip Linda Lopez, D-Albuquerque — would require officers and agencies to disclose exculpatory or impeachment evidence to prosecutors.
This material — called Giglio disclosures after the 1972 Supreme Court case Giglio v. United States — covers “dishonesty, conduct establishing a lack of integrity in investigation, discriminatory bias against a protracted class of persons, bias in favor of or against a participant in the proceeding and criminal charges and convictions.”
Under the bill, if officers don’t comply, they could face suspension or revocation of their law enforcement certification.
“It’s in the constitution that prosecutors have to enquire and disclose the information,” District Attorney Raúl Torrez said. “What is not clear and is not set forth by the Legislature is to what extent law enforcement partners have to cooperate in that process. If they decided … that they’re going to interpret the constitution a different way and not comply, that’s not something that will be permitted under this bill.”
Representatives of the Law Offices of the Public Defender, the New Mexico Criminal Defense Lawyers Association and the American Civil Liberties Union of New Mexico all spoke in support of the bill at the Senate Health and Public Affairs committee.
The committee advanced the bill without recommendation on Monday, a motion Sen. Liz Stefanics, D-Cerrillos, made because she said it’s a complicated measure and the committee couldn’t give it a “full, robust hearing” since members were coming and going.
Last fall, Torrez launched an initiative to send officers questionnaires to determine if they have any Giglio disclosures.
He said that, of about 265 questionnaires his office has distributed so far, they found five officers with conduct that needed to be disclosed to the defense. However, Torrez stressed, this does not necessarily mean that his prosecutors won’t call those officers as witnesses, especially if they are essential for the case.
The officers and the cases they are involved in are listed on the DA’s website.
Torrez said his office began working on the bill due to the Bernalillo County sheriff’s opposition to the initiative. Sheriff Manuel Gonzales initially directed his deputies not to respond to the questionnaire and instead answer two questions about whether they had been found to have been untruthful or provided false or deliberately misleading testimony.
The two agencies say they are now working together to find common ground.
In a statement, Sheriff Gonzales suggested the bill is unnecessary and called it “little more than a symbolic repeat of what is already established case law.”
“Citizens would rather see legislatures spending their time on bills that help hold criminals accountable,” Gonzales wrote in a statement. “For some reason, that doesn’t seem to be the focus, and it should be.”