SANTA FE – District Attorney Angela “Spence” Pacheco has dismissed a drunken-driving charge against renowned playwright and actor Sam Shepard.
The aggravated DWI case against Shepard had “no likelihood of success at the trial,” based on eyewitness accounts that he drank 1½ margaritas and a sip of mescal before his May arrest outside La Choza restaurant, not enough to raise his blood alcohol level to New Mexico’s presumed level of intoxication, says Pacheco’s dismissal notice dated Monday.
The Magistrate Court dismissal says, “There is other valid evidence from eyewitness testimony and video and audio recordings to credibly rebut any inference of impairment to the slightest degree.”
Dan Cron, Shepard’s attorney, said his client’s image was scarred by the arrest, and he hopes the dismissal will clear his name. “The alcohol was at a level that the law presumes he was not impaired to drive,” Cron said. “This whole incident has unjustly tarnished Sam’s reputation, and we hope this dismissal serves as the vindication he deserves.”
Shepard, who owns a home near Santa Fe and who has lived in the area on and off for decades, was arrested about 7:45 p.m. May 25 after a security guard for La Choza called police. When an officer arrived at the restaurant on Alarid Street, he saw a blue Toyota Tacoma pickup with its brake lights on “and the vehicle making a jerking motion forward,” says the criminal complaint. Shepard, 72, said he’d had two tequila drinks.
Santa Fe officers charged Shepard with aggravated DWI, reporting they smelled alcohol on his breath and he failed field sobriety tests. Shepard refused to take a breath test to determine blood-alcohol content.
The dismissal document says a witness saw Shepard drink one margarita and part of a second one and take a sip of mescal. Defense attorney Cron said Thursday that Shepard’s margaritas did not contain one of the standard ingredients, an orange liqueur, lowering their alcohol content.
The dismissal notice says the prosecution’s own expert would have testified that 1½ margaritas, without Cointreau liqueur, and a sip of mescal would have given Shepard a blood alcohol level of less than 0.01 percent at the time of his encounter with police. The expert also found that if Shepard drank two whole margaritas even with Cointreau and took a full shot of mescal, his BAC level still would have been just 0.048 percent, much lower than New Mexico’s presumed level of intoxication, 0.08 percent.
In addition, the notice says the field sobriety tests that police administered to Shepard, who was 71 years old in May, “were not valid for an adult over the age of 65.” DA Pacheco said in an interview, “When you’re over the age of 65, you’re given alternative field sobriety tests because your balance isn’t as good.”
She said Shepard also was using Facetime on his cellphone and “wasn’t paying attention,” an explanation for his truck’s jerking motion, and that the video of the arrest shows he was not impaired.
Cron said bartenders gave statements saying Shepard ordered margaritas without Cointreau, as he always does at La Choza. “Sam used to go into that restaurant with regularity, and that’s what he always ordered,” Cron said. “Two bartenders gave statements and said that in interviews. The people who mixed the drinks remembered that night.”
Shepard, a Miller Scholar at the Santa Fe Institute, was awarded the Pulitzer Prize for drama in 1979 for his play “Buried Child” and received an Oscar nomination was for best supporting actor for portraying of test pilot Chuck Yeager in the 1983 movie “The Right Stuff.” He continues to be active in both fields.
Shepard pleaded guilty in 2009 to DWI in Illinois.