E-mail Story
Print Friendly
Send E-mail
Reprint story
Journal North: Home | Sports | Opinion | Obits | Entertainment
Sunday, October 04, 2009
FOR THE RECORD: A column by Journal North/Santa Fe editor Mark Oswald published Sunday reported incorrectly that it took hours for authorities to get a blood sample to determine blood-alcohol content for Carlos Fierro, convicted of vehicular homicide Friday, after he was arrested shortly after 2 a.m. Nov. 26. The blood sample, which determined that Fierro's BAC was nearly three times the legal limit for driving, was obtained by about 3:30 a.m. and possibly earlier, according to a state Special Investigations Division report and other documents in the case. The following has been corrected to fix that error.
Divining Whom To Charge Subjective
By Mark Oswald
Of the Journal
Call it the strange case of WilLee's and the Rio Chama, with the ghost of Dana Papst as a side character.
If you've followed the Carlos Fierro DWI tragedy carefully, you know that one of the most intriguing side issues has been an administrative matter, not a criminal one.
Fierro — lobbyist, lawyer and one-time Don Diego DeVargas at the Santa Fe Fiesta — drank for hours before he ran over pedestrian William Tenorio in November. Fierro's defense blamed Tenorio for the wreck, but a jury convicted him of vehicular homicide Friday in a contentious, down-and-dirty legal battle that will almost surely continue with appeals and maybe even a new trial.
I'm not going to rehash the entire case here. But testimony in his trial makes it appropriate to revisit New Mexico law enforcement's take on who overserved Fierro with booze. It's important because Fierro's blood-alcohol content was measured at close to three times the legal driving limit soon after his BMW knocked Tenorio into the air and killed him.
Fierro and his pal Alfred Lovato — at the time of Tenorio crash, a State Police sergeant and a member of Gov. Bill Richardson's security detail — socialized at two places the night of the crash. The first was Rio Chama Steakhouse, the upscale political hangout near the Roundhouse owned by one of Santa Fe's most prominent business leaders, Gerald Peters, who's also been a big supporter of Richardson. The governor was even at Rio Chama that night but didn't see Fierro and Lovato, his office said.
The second was the much more down-scale and now-defunct WilLee's Blues Club, whose proprietor had no known powerful connections and who was best known for taking politically incorrect positions, opposing and testing the limits of the ban on smoking at bars, for example, and complaining (ironically, you'd probably say now) that anti-DWI enforcement was going overboard.
It was WilLee's that the state dinged for overserving after the fatal crash in April. The Department of Public Safety's April news release said its Special Investigations Division had "determined Mr. Fierro was overserved alcoholic beverages at WilLee's." Rio Chama was not cited.
Let's review:
We know that Fierro and Lovato, who resigned as a cop after the Tenorio crash, ran up a 16-drink bill at Rio Chama that night. Fierro testified last week that he had five or six of the drinks there, but that he didn't drink at WilLee's. Also, none of the prosecution witnesses in Fierro's trial remembered seeing him drinking booze at WilLee's, although Lovato paid a $27 tab there.
I can't figure any reason Fierro would commit perjury on the stand by lying about where he drank. His defense conceded he was driving under the influence, so why fib about the source of the booze?
On the other hand, if you don't buy Fierro's whole story of the crash — that he never saw Tenorio in the street and thought somebody had thrown a rock at his windshield when Tenorio's body smashed through the glass — you might not believe anything he says.
Demeanor counts
Still, shouldn't there be some evidence that Fierro actually consumed alcohol at WilLee's before its owner and a bartender there are charged with overserving?
And what about all those drinks at Rio Chama, where — according to the investigative file released in April — the overserving investigators didn't even interview anyone who'd been there that night except a Richardson political hire. He said he'd sat down with Lovato and Fierro, and vouched that Fierro was "totally fine" when he left the Rio Chama about 11:45 p.m. before heading to WilLee's.
DPS says the demeanor of a customer — and not just the number of drinks — is important in deciding whether to issue an overserving citation. I'd suggest that talking to just one witness who shared a drink with the DWI suspect shouldn't have settled that issue at the Rio Chama. This just didn't look good.
But my reaction all along has been that there was no intentional cover-up to protect Rio Chama or Peters — a cover-up, you'd think, would have been carried out with more finesse. You wouldn't just blow off investigating the Rio Chama and try to sell that as a legitimate inquiry.
New points
DPS spokesman Peter Olson went over the whole thing with me again on Friday, and he offered a couple of new pieces of information.
The first was that the SID, in investigating the overserving issued, did indeed have a statement from someone who says she saw Lovato and Fierro served alcohol at WilLee's. This wasn't known publicly before, because her remarks had been redacted from the investigative file released earlier this year. Apparently, however, this same person didn't offer testimony about Fierro drinking while on the stand at the vehicular homicide trial.
The second piece of information Olson divulged was that, under the state's administrative rules, proof of overserving by a liquor establishment is a customer's BAC of 0.14 percent (the legal driving limit is 0.08) measured within 90 minutes after being sold booze. Without that hard evidence, the state can cite a bar or store, but it likely won't hold up in the administrative hearing, Olson said.
Fierro and Lovato cashed out at Rio Chama at 11:41 p.m. and Lovato paid his tab at WilLee's at 1:31 a.m. Police were called to the wreck about 2 a.m., after Fierro drove back to WilLee's following a visit to an Allsup's. The overserving investigation file says Fierro gave a blood sample within two hours of leaving WilLee's. Records show he gave written consent for the blood test at 2:51 a.m. - 80 minutes after Lovato paid his tab at the blues club. But it remains unclear when, or if, Fierro was served a drink at WilLee's and whether he paid for, consumed or was served a drink within 90 minutes of his blood test.
Fierro wouldn't or couldn't provide a good breath test when he was pulled over a few minutes after the crash, but he failed field sobriety tests. The blood test that showed he had a BAC of 0.21 wasn't taken until hours later.
So there certainly was no definitive BAC test showing that Fierro was drunk past the overserving limit within 90 minutes of being at Rio Chama. He may have been pulled over post-crash within the 90-minute time frame, but just barely. I don't know what that counts for in the state rules.
Papst crash
Then, famously, there's Dana Papst. Papst, of course, was driving a pickup the wrong way on Interstate 25 east of Santa Fe in November 2006 when he plowed head-on into a van and killed five members of a Las Vegas, N.M., family.
Without benefit of a surveillance tape that would have shown Papst's demeanor, the state cited a Bernalillo convenience store clerk who sold beer to Papst about an hour before the crash as he drove from the Albuquerque airport to Santa Fe (he lived in Tesuque).
But Papst had also been drinking on his flight into Albuquerque, and, in charging the Bernalillo clerk, the state did cite witness statements that Papst had been unsteady on the plane.
But who knows? Papst may have sucked it up, popped a breath mint and appeared "totally fine" when he strode into the convenience store and bought the beer.
The state's prosecution of the clerk — which she beat in court — caused the Bernalillo convenience store to shut down. This for the sale of a six-pack — not for serving 16 drinks to a couple of customers.
In the Papst case, there was also no blood test within that crucial 90-minute period from beer sale to BAC measurement, either. Blood from Papst, who died at the hospital, wasn't drawn until three hours after the crash. He was nearly four times the legal driving limit.
So the state cited the Bernalillo clerk without any witnesses who could say what Papst looked or acted like when he bought his six-pack, and also without the BAC measurement considered presumptive evidence.
An art?
As another reason for not citing Rio Chama in the Fierro case, the state has mentioned formulas for determining how the drinker's weight, number of drinks and time add up to a blood-alcohol content at a particular point, with the suggestion that the formula nails WilLee's and not Rio Chama.
But we don't really know how many drinks Fierro had at Rio Chama — if you don't believe him when he says he didn't drink at WilLee's, why believe him when he says he had only five or six at Rio Chama? Maybe he had 10 or 12 out of the 16 drinks on the tab. And such computations were not noted in the investigator's report on overserving Fierro released in the spring.
That report says Fierro and Lovato didn't show "obvious signs of intoxication" at Rio Chama, that they did at WilLee's, and that witness statements place them "at the bar area inside WilLee's."
Clearly, I still don't quite understand how all this works — a convenience store clerk can be charged based totally on circumstantial evidence, but serving 16 drinks to couple of men (OK, subtract one or two for the guy who sat down with them, based on his testimony) doesn't constitute overserving? And the most important over-drinker's own words about where he got drunk don't count?
WilLee's may well have deserved an overserving citation for drinks that the also-drunk Lovato and Tenorio got that night.
But, at best, at least to the layman, New Mexico's methods of deciding who gets an overserving citation and who doesn't when there's a high-profile DWI fatality seems to be more subjective art than forensic science.
You also can send comments via our comment form
|
|
