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Thursday, November 19, 2009
Not Driving Leads to DWI
By Jeff Proctor
Journal Staff Writer
Fidencio Francia says he's familiar with the slogan.
" 'You drink, you drive, you lose.' I know," Francia, a 58-year-old disabled Vietnam veteran, said in an interview.
That's why he says he walked out of American Legion Post 99 near Lomas and Louisiana NE and went to sleep in his truck on Aug. 21, 2008.
"I felt to myself: 'There's no way I could drive. I'm tired and I've had a couple of drinks.' So I decided, 'I'm not going to drive because I won't be able to properly drive down the road,' " Francia, who lives in Edgewood, said from the witness stand during his DWI trial in Metropolitan Court last week.
Metropolitan Judge Kevin Fitzwater didn't buy the argument of Francia's attorney, Tom Mescall, that Francia intended to use the pickup truck as a "temporary shelter, not as a 4,000-pound bullet."
Instead, Fitzwater sided with Assistant District Attorney Greer Rose, who argued that Francia's was an "obvious case of control of the vehicle."
The judge found Francia guilty, a decision Mescall says he's likely to appeal.
"Your attorney is essentially asking me to overturn well-established case law (that says) you don't have to be actually driving" to be found guilty of DWI, Fitzwater said to Francia. "You don't even have to have the engine on."
Fitzwater ordered a pre-sentence report, saying he didn't have enough facts to sentence Francia last week.
Mescall plans to file a motion asking Fitzwater to reconsider based on the fact that Francia did not receive the jury trial Mescall believes he deserved.
Mescall contends that, because Francia has a prior DWI conviction from the 1980s, he had a right to a jury trial. Moreover, Francia's August 2008 arrest had been charged as a DWI second offense from the very beginning.
That changed last Thursday, when Rose amended the charge to a DWI first offense. She said in court that she did so because she had no proof of a prior conviction.
Mescall said Rose amended the charge to deprive Francia of his right to a jury — and because Fitzwater had convicted Mark Sims of DWI in 2004 even though Sims was not driving at the time.
The Sims case is pending at the state Supreme Court. It is one of several cases in which "control of the vehicle" is the underlying issue.
Francia's may turn out to be another.
Crash investigation
Neither Rose nor the arresting officer disputes that Francia's engine was not running that August evening.
Francia says he had been down the street from the post at Leisure Bowl earlier in the evening to set up a bowling league. Afterward, he wandered into the post for some karaoke and a few drinks with fellow veterans.
Around 10:30 p.m., Francia left the post. He says that, as he was walking toward the truck, he decided not to drive. So he got in the truck, put his keys in the center console, reclined the driver's seat and went to sleep.
A few hours later, he was awakened by Albuquerque Police officer Mark Aragon, who was knocking on the window of the truck. Aragon was in the middle of a crash investigation.
Sometime after 11 p.m., the post's bartender had gotten into a Corvette, driven down the street and crashed into a light pole. The bartender drove away from the scene, leaving part of the Corvette on the curb, and into a gated apartment complex. According to a police report, the bartender's blood alcohol concentration was more than twice the state's presumed level of intoxication of 0.08 percent.
Aragon was dispatched to investigate the crash. He found his way to Francia by following the Corvette's path back to the American Legion post.
Aragon smelled alcohol on Francia's breath after Francia got out of the truck. So he called for backup, which came in the form of officer Leonard Mascareñas, a 17-year veteran of APD's DWI Unit.
Mascareñas conducted a series of field sobriety tests on Francia. The veteran "performed poorly" and later submitted to a breath alcohol test, which measured his BAC at 0.13 percent.
Francia said repeatedly in court that his intention was never to drive the car, that he knew he wouldn't be able to drive effectively and safely.
"There's five things that it takes to be DWI," Fitzwater said during his ruling. "Intent is not one of them."
Mescall sees it differently. He says his client did the right thing, that Francia had a moment of clear thinking that may have prevented him from becoming "the next Gordon House or Dana Papst."
"But I guess no good deed goes unpunished," Mescall said in an interview.
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