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Tests Anger Owners of Bars

By Jeff Proctor
Journal Staff Writer
    Some Downtown Albuquerque bar owners are angry at what they say is stepped-up state law enforcement, with agents asking patrons to step outside and take a breath-alcohol test.
    But agents do that only to build a case against bar owners who serve underage drinkers and overserve adults, according to Peter Olson, a state Department of Public Safety spokesman.
    State officials insist agents are not randomly testing patrons, as has been reported.
    Billy Baldwin, president of the New Mexico Hospitality Retail Association, a group of bar owners, said it seems as if agents have ramped up their methods in recent months— and increased their presence in general around taverns in Albuquerque and across the state.
    "It's pretty much the new avenue to take out (bars) all over the state," Baldwin said. "And in Albuquerque, there's been a real resurgence in Downtown bars. There was a push to get some excitement going on, some tourism, and now they're choking it out and trying to destroy it."
    The issue— and the breath test method in particular— came to a head on Saturday when a bar owner and two others were arrested for videotaping the state agents.
    David Garcia, 31, Lance Gomez, 34, and Jacob Traub, 37, were arrested near the Downtown Distillery on suspicion of "obstruction of an officer in the enforcement/administration of the Liquor Control Act."
    Attorney Paul Kennedy, who is representing the three men, said he is concerned authorities are infringing on the First Amendment.
    Kennedy said bar employees have the right to videotape agents stopping bar patrons, and he will take legal action against the state on behalf of his clients.
    Olson said the department has been using breath tests on bar patrons "for a long time" to determine if they have been overserved. He said agents aren't stopping patrons randomly.
    "A rumor got out that (the Special Investigations Division) was going to be out giving random Breathalyzer tests to bar patrons on the sidewalk," Olson said Tuesday. "There have been several reports out in the media about it, and it's simply false, innuendo, not true."
    Olson said the breath tests are done after an agent has witnessed overserving or serving of a minor, he said. Patrons can turn down the agent's request, and the breath test can be used only to cite the bar or bartender.
    "It's not illegal to be drunk," Olson said.
    But Baldwin said the agents' recent actions have had a dampening effect on business.
    "If they're going to drag people out and (give them breath tests) after they've had a couple beers, do you really think people are going to want to visit this state?"
    According to court records, Garcia told Special Investigation Division agents he had been hired by the bar to videotape agents because agents "had been harassing patrons."
    An agent told Garcia to stop videotaping and when Garcia refused, the agent took his camera and arrested him, court records state.
    Kennedy said Gomez, a bar manager, was videotaping Garcia's arrest when agents seized his camera and arrested him. Traub, the bar's owner, then arrived with a camera, and agents arrested him and took his camera, he said.
    According to court records, the agents didn't want to be taped "due to safety concerns involving undercover work."
    Olson said the agents were not administering breath tests. Rather, they were checking identifications, issuing citations for other offenses and "just going about business as usual on a weekend night Downtown."
    He said Garcia, Gomez and Traub threatened to put the agents' pictures on a Web site and reveal their identities.
    "Any time someone tries to intimidate an officer, that's serious," Olson said.
    Kennedy said his clients should have the right to videotape police actions.
    "I don't care if they were giving breath tests or not," he said. "I want to videotape it to keep everybody honest. When we go into court, I want to have accurate testimony."
    Kennedy plans to file a federal civil rights lawsuit on behalf of the three men. Further, he plans to file an injunction against SID to uphold his right to videotape agents in the field.