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DWI case against prominent attorney dismissed

Copyright © 2019 Albuquerque Journal

David Serna

Prosecutors have dismissed drunken driving charges against a prominent Albuquerque defense lawyer after a judge found his arrest was unconstitutional and threw out key evidence.

David Serna had been set for a trial Monday in Metropolitan Court on one count of drunken driving. Instead, the trial was vacated and the state filed documents saying it was unable to proceed based on the judge’s decision.

In January, an officer saw a seemingly intoxicated Serna in the Whole Foods parking lot and helped him request an Uber, according to court documents. But about 30 minutes later, the officer saw Serna’s vehicle leaving the parking lot and pulled it over.

The officer then asked dispatch to send another officer to conduct a DWI investigation, and did not ask Serna to perform any sobriety tests. Serna was not allowed to leave and was required to wait for 42 minutes before a second officer arrived.

“The court finds … that the 42-minute detention of the defendant under the circumstances was not a reasonable investigatory detention, and ripened into a de facto arrest requiring probable cause,” Judge Geraldine Rivera wrote in her order.

The first officer admitted in court that he did not believe he had probable cause to arrest Serna before conducting a sobriety test, and the second officer testified that he did not have probable cause to arrest Serna after the tests were administered. A criminal complaint alleges Serna took a breath-alcohol test which showed he was at or above the legal limit of .08 percent.

Without probable cause to arrest Serna prior to the sobriety tests, the judge determined requiring him to wait for a second officer “was an unconstitutional seizure.”

Michael Patrick, a spokesman for the District Attorney’s Office said in a statement that the judge’s decision left prosecutors with too little evidence to move forward.

And Thomas Clear, who represented Serna in the case, said Monday that there were clear constitutional violations that the state could not overcome.

“One thing about officers is they’re not lawyers,” Clear said. “They’re trained, they follow their training, but in this instance, there wasn’t the appreciation that the time was just taking too long.”

He added that police “can’t have you sit there forever.”

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