Ledes from the Land of Enchantment

DA lauds policy on DWI process, but others remain wary | Local News

First Judicial District Attorney Mary Carmack-Altwies says her controversial approach to prosecuting misdemeanor DWI cases — dismissing them at initial filing to allow for more time to collect evidence, then refiling them later — is proving successful.

But others who deal with drunken driving on a day-to-day basis — including public defenders, law enforcement and officials who monitor DWI offenders — aren’t as convinced. They worry some of the cases being dismissed aren’t being refiled quickly enough or at all, increasing the chance suspects could re-offend in the interim.

Undeterred, Carmack-Altwies said she is enthusiastic about where the policy is heading. The District Attorney’s Office has stopped losing cases for missing discovery deadlines, she said in a recent interview, and the new policy spurred a conviction rate on refiled cases at more than 90 percent between August and November.

That’s far above the historically low conviction rates long accepted as status quo, she added.

In a series of emails and interviews, Carmack-Altwies — whose new policy came under fire from some Santa Fe magistrates and grudging skepticism from others when she introduced it in 2021 — said the approach is making headway in part because cases are not being dismissed on technical grounds.

“Our process is working,” Carmack-Altwies wrote in October. “I am so proud of it. It is still a little slower than I wish, but those timelines are improving. The important thing for us is that when we get a case into Magistrate Court, they are going to trial or they are pleading. We are not seeing cases getting dismissed for ‘technicalities’ like we used to. I have two very senior attorneys assigned to these cases — and the outcomes they are getting is incredible.”

Nevertheless, it could be a year or more before statistics reflect her success, the DA said, in part because Administrative Office of the Courts systems don’t track cases beyond initial dismissal — so they only show she’s dismissed hundreds of cases in the past two years — and don’t account for the cases that have been refiled and resulted in convictions or guilty pleas.

“We really have no way of accurately tracking cases,” she said. “So everyone … ends up relying on reports which are not in any way an accurate reflection of what District Attorney’s Offices are doing.

“We’re constantly comparing apples to oranges to grapes, but … the trends [show] this process is absolutely working. If you go back to any three-month period in the last 10 years, you will not find this conviction rate.”

Mothers Against Drunk Drivers New Mexico executive director Katrina Latka said the group’s analysis of 2022 DWI cases support the DA’s claims but also noted available statistics don’t tell the whole story.

Critical to the process, anti-DWI advocates note, is how many cases are refiled.

Tracking those numbers isn’t easy because methods for collecting data weren’t designed to track single crimes across hundreds of cases, some of which may have multiple charges. Available systems also don’t capture data on the refiled cases, so they are recorded as dismissals, which skews conviction statistics.

For example, the New Mexico Judiciary Annual Statistical Report on DWI Court Dispositions for 2021 shows the conviction rate for DWI cases in Santa Fe Magistrate Court was 30.4 percent, while the dismissal rate was 69.4 percent.

The Administrative Office of the Courts provided a spreadsheet of hundreds of cases dismissed between August 2020 — when the district attorney began applying the policy, a few months before she took office — and August 2022, in response to a request from The New Mexican.

The spreadsheet shows about 202 DWI cases were dismissed for various reasons in 2021 and not refiled — but also is accompanied by a paragraph of caveats about possible irregularities in the data set.

The DA’s Office counters those numbers don’t account for hundreds of cases that were refiled and resulted in convictions or plea agreements.

MADD has its own set of statistics, which Latka says show some promise for Carmack-Altwies’ policy.

The organization has monitored 281 DWI cases in Santa Fe Magistrate Court since January 2022, Latka wrote in a recent email. Of those, 275 were dismissed per the policy, and as of the first week of November, 87 of those cases had been refiled.

While those numbers seem to indicate the district attorney only refiled 32 percent of the cases, Latka wrote, “it would be highly inaccurate to interpret this 68% figure as the final record of dismissed cases in Santa Fe.”

MADD’s research shows the average time between dismissal and refiling has been more than five months, she wrote.

“We have yet to see if many of these early 2022 cases may be refiled,” she wrote.

MADD’s analysis of cases from January and February shows a higher refile rate, Latka wrote. About 74 percent of the cases dismissed were refiled, and of those, 78 percent resulted in a guilty verdict or plea.

“It’s looking as positive as possible,” Latka said in a recent phone interview. “But from our perspective, since the numbers are so low and we are still looking at cases from the beginning of the year, it’s pretty preliminary.”

The DA’s own statistics — provided with a list of 11 caveats — say the office refiled 158 [about 64 percent] of 247 DWI complaints in 2021 and declined to prosecute 65 [about 26 percent]. Only three are still being screened, according to data the DA’s Office provided.

Battling a deadline

Like MADD, the DA’s Office prefers to focus attention on 2022 cases, contending that’s when the reformed process started humming.

The DA’s own statistics regarding cases filed between January and November show that, out of 315 cases dismissed during the period, 91 (about 28.8 percent) were refiled; the office declined to prosecute 42 (about 13.3 percent) and 182 (about 57.7 percent) were still awaiting refiling.

Carmack-Altwies said that’s because her office is still having trouble getting evidence — sometimes referred to as “discovery” — from law enforcement.

“I’m willing to take the hit for the pitfalls we had in 2021, but this is really really working, and I am over the moon about how well it’s working,” Carmack-Altwies said. “Now we have to get our law enforcement officers to help it work.” The DA said the First Judicial District’s chronically low DWI conviction rate — which had fallen to 43 percent in 2019 — prompted her try a new approach to prosecuting drunken driving after she took office in January 2021.

“We were losing an absurd amount of cases based on technicalities,” she said, noting many cases were being lost because the state was not able to produce evidence gathered on scene by police within 45 days.

It’s a widespread problem in New Mexico’s other judicial districts as well, Carmack-Altwies said, caused in part by mismatched technology across agencies, which has complicated the gathering of the information.

The point of dismissing the cases and refiling them later, she said, was to give prosecutors more time to collect the evidence, thus making convictions more likely.

Her approach wasn’t initially embraced by everyone in the system.

Judges in Santa Fe Magistrate Court balked at allowing Carmack-Altwies to skirt discovery deadlines through dismissal and continued to hold her office to original deadlines, effectively forcing her to dismiss the refiled cases again.

She responded by refiling dozens of misdemeanor DWI cases in state District Court, prompting meetings with District Court judges and even the state Supreme Court. She said magistrates were ordered to stop resisting her workaround.

But Carmack-Altwies acknowledges prosecutors are still struggling to obtain evidence from law enforcement in a timely manner, forcing her to decline more prosecutions than she’d like.

Ideally, it should take 60 to 90 days to collect evidence, she said. Currently, it’s taking “about seven months,” in part because police departments and sheriff’s offices often are overwhelmed.

“I don’t want to throw law enforcement under the bus,” Carmack-Altwies said. “It’s not about who is doing wrong now. I’m willing to admit we lost some cases in 2021 on statute of limitations. That’s on us. … We’ll take it [the blame].

“My new crusade is I want to work with law enforcement to uplift them,” Carmack-Altwies said. “They don’t have the employees or the computer system to get us all that stuff.”

In 2021, Carmack-Altwies said, the DA’s Office had one attorney and two or three support staff assigned to gather discovery. Now, there are six attorneys and eight or nine staffers doing intake on cases.

“That’s all they do all day, every day, is get discovery,” she said.

Supporters and critics

The Santa Fe Police Department is supportive of the DA’s approach. In the summer, a top official said the previous timeline for evidence collection would have been “challenging” to meet.

In an interview this month, Deputy Chief Ben Valdez said the department is finding ways to use new software to improve the flow of discovery and is working toward a system that will allow the prosecution and defense immediate access to evidence uploaded by officers.

Carmack-Altwies said she’s requested funding for two systems she believes will improve and demystify the district’s DWI conviction rate. One would allow instant access to law enforcement evidence; the other would enable her to track case outcomes more clearly.

Santa Fe County Sheriff Adan Mendoza previously expressed skepticism about the policy, but his stance seems to have softened in recent months.

“I’m still concerned about the immediate dropping of cases because I think things can fall through the cracks,” Mendoza said in a phone interview earlier this month. “But I’ve been assured [by the DA] these cases are getting refiled and they are getting more successful prosecutions of DWI’s through this policy.

“If that is the case, I feel I need to support the DA. As far as I know, we had been meeting the deadlines,” he said. “But I’m not going to say it isn’t a challenge.”

However, Mendoza and others say they are concerned about the time lag between dismissal and the refiling of cases.

A delay in swift consequences also concerns Santa Fe County Community Services Director Rachel O’Connor, who supervises the monitors who make sure people convicted of DWI follow court orders.

She said the program has seen a huge drop in the number of people they monitor.

Only 53 drivers had interlock ignition devices installed as a result of a DWI conviction in Santa Fe County in 2021, while 196 were installed in 2019, according to a graph O’Connor provided.

“Sure and swift consequences have a deterrent effect,” she wrote in an email, “especially since convictions make the consequences for future infractions even more severe.”

O’Connor also pointed to Administrative Office of the Courts data that shows the DWI conviction rate in Santa Fe Magistrate Court dropped from about 40 percent under Carmack-Altwies’ predecessor, Marco Serna, to 30 percent in 2021.

“Santa Fe County is now tied for the lowest DWI conviction rate out of the 33 counties in NM,” O’Connor wrote.

“The County has not seen a significant increase in the number of dismissed DWI cases being refiled, which gives us pause that the growing backlog may make it difficult for prosecutors to manage even if they are all timely refiled. Our understanding is that many of those cases can no longer be refiled, due to the statute of limitations.”

Carmack-Altwies said the data cited by O’Connor doesn’t reflect the true conviction rate.

“I think … they see the data and they don’t necessarily understand all the layers underneath it,” she said.

Julie Ball, who leads the Santa Fe Public Defender’s Office, also questioned the effectiveness of the dismiss-and-refile approach.

“I do understand the issues involved, but it’s not helping anybody dragging this out six months and certainly not helping the public,” Ball said in a phone conversation in July, a stance she reiterated in a more recent interview.

“If somebody is charged with an offense and they actually need help, then a prompt resolution will get them into treatment faster, will address any substance abuse issues they had and arguably the public will be safer on the streets,” she said.

Ball acknowledged the issue of DWI is “extremely complicated” and evidence sharing has become more cumbersome in recent years and “keeps getting worse as technology improves.”

But said she sees a glimmer of hope in the form of more universally compatible computer systems.

For her part, Carmack-Altwies said she stands by her approach — confident it will achieve desired results and she won’t be deterred by critics who aren’t yet on board.

“Every member of this system has pushed back,” Carmack-Altwies said. “But that doesn’t mean it’s the wrong thing to do.

“What we are seeing right now is great upward trends,” she said. “And I would say probably in a year you will either see that continued upward trend. Or you will see a massive crash and then we’ll be like, ‘OK, back to the drawing board.’ ”

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