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Drunk driving in McKinley suffers 43 percent dismissal rate

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Drivers who operate a motor vehicle under the influence in McKinley County have a 43 percent chance that their criminal charge will be dropped or pleaded out by the district attorney.

The New Mexico Mothers Against Drunk Driving reports that McKinley County is the highest among six counties under a monitoring program of DWI case dismissals.

The one-year report covering July 2016 through July 2017 was released in November. It shows that of the 380 monitored cases, 119 of them were dismissed, and an additional 44 were given a deferred prosecution.

Deferred prosecution is when the district attorney declines to prosecute and offers an arrangement to the defendant.

“It’s the prosecutors who are dismissing these cases,” McKinley County Sheriff Ron Silversmith said.  “It gets frustrating.” Silversmith added that cases are dropped due to jurisdictional matters, defense attorneys prolonging the court calendar until  cases are dropped, and law enforcement officers leaving their agencies.

The MADD report indicates that the district attorney’s office is understaffed and underfunded.

District Attorney Paula Pakkala, who recently replaced District Attorney Karl Gilson, was the lead DWI prosecuting attorney prior to her appointment as DA.

“Defendants are sent to DUI school, a victim impact panel, and given 24 hours of community services,” Pakkala said in an interview. “That normally hadn’t been done in this office. We’re not going to do that anymore.”

Pakkala is spending more of her time with administrative and budget duties, and less time prosecuting.

She intends to reduce deferred prosecution cases and dismissals by spending more time seeking funding increases, some through grants.

New Mexico law allows for judges to offer first time DWI offenders deferred prosecution. Once the defendant successfully completes the program the DWI charge is dropped. No plea is entered and the defendant’s court record shows no DWI conviction.

In Gallup-McKinley County a three-time DWI offender was given a second offense agreement by Assistant District Attorney Will Robinson, who leads DWI prosecution for the 11th judicial district in Gallup.

Criminal cases in this instance suffer from the discretion the prosecutor uses over which cases go to trial in the pursuit of a conviction.

For instance, arrest records show that Donaldson Pettigrew, 28, of Gallup was first arrested for drinking and driving on Oct. 16, 2010, by the McKinley County Sheriff’s Office. He was booked for aggravated DUI, first offense. His blood alcohol content level was .24.

Four months later, in February 2011, Pettigrew was arrested by Gallup Police after refusing to submit to a field sobriety test. His blood alcohol content level at the time of booking was .20.

On July 7, Pettigrew was stopped by the McKinley County Sheriff’s Office for speeding. Inv. Merle Bates conducted two field sobriety tests to measure Pettigrew’s ability to operate a motor vehicle, and determine his level of intoxication. Pettigrew failed both tests. He was arrested.

While being booked into detention, Pettigrew agreed to the New Mexico Implied Consent Advisory requirement for his blood alcohol content level to be measured.

His results were .23, nearly three times the legal limit. In New Mexico, any level over .08 is DWI. Less than .08 is impaired driving.

Court records show that Pettigrew was charged for the July 7 incident with no driver’s license, expired registration, speeding, driving while revoked license-DWI related, and driving while under the influence of liquor or drugs .08 and above for a second offense.

The district attorney dismissed the charge of expired registration, speeding, and driving while revoked license. Pettigrew pleaded guilty to no driver’s license and to DWI second offense.

By law, Pettigrew is required to be charged with a third DWI offense, a misdemeanor with a mandatory 30-day jail time and $750 fine. A three-year driver’s license revocation is imposed for a third offense.

Instead, Pettigrew was ordered by the court to pay fines and fees and given community service for a second DWI offense.

A second DWI offense carries a mandatory 96 hours of jail, $500 in mandatory fines, and a two-year driver’s license revocation.  Fourth DWI offenses are felonies.

When asked about Pettigrew’s case, Pakkala replied, “I’m not going to discuss this case. I do not believe he got a deferred prosecution.”  Pakkala did not have case details with her.

“One of the things we did in some of those cases with time limits, we did a diversion agreement,” Pakkala said.

For cases that are dismissed, the district attorney referred to evidence suppression by defense attorneys, sometimes missing certifications of equipment used during the arrest, and officers leaving.

“When an officer leaves an agency and goes to another job, we necessarily can’t get them back to court and testify,” Pakkala said.

The MADD report shows that 15 percent of dismissals are due to officers leaving agencies.

Additionally, some of the dismissals were based on Judge Kenneth Howard, who passed away.

“We have six months under arraignment to bring a case to conclusion,” Pakkala said. No conclusion means cases get dropped.

Jurisdiction is yet another factor.

“On Boardman Drive you go in and out of the Navajo Nation,” she said.  Gallup is surrounded by reservation land.  McKinley County Sheriff Deputies record GPS description in their police reports, but it’s sometimes an issue with select cases.

The District Attorney’s five DWI prosecutors are handling more than 600 open DWI cases. The attorneys also prosecute cases in the Crownpoint District Court on the Navajo Nation.

A call was placed to Governor Susana Martinez’s office on Nov. 28, since she committed $800,000 for the monitor reporting by MADD through the use of New Mexico Department of Transportation funding.

“There are too many DWI offenders who are driving drunk over and over again who never face the consequences for their actions,” Emilee Cantrell said, who serves as the spokesperson for Martinez. “The Governor started the DWI court monitoring initiative to watch the DWI adjudication process and provide information to the public about how those cases are being handled.”

The monitoring project is funded for two years by the New Mexico Department of Transportation. The six counties were chosen because of the high rate of DWI-related fatalities. The program can be extended for an additional two years, Cantrell said.

By Deswood Tome

Sun Correspondent