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System Failure

By Vic Vela
Copyright © 2010 Albuquerque Journal
Journal Northern Bureau

          SANTA FE — The system didn't work.
        If it had, James Ruiz might well have been behind bars the night of March 5 instead of driving a friend's Ford F-250 pickup truck on Cerrillos Road. And teenage sisters Deshauna and Del Lynn Peshlakai would still be alive.
        Instead, Ruiz's 15-year history of heavy drinking and driving — and the way he skated with minimal penalties so many times — make him a poster boy for how the system failed.
        "It makes my blood boil," said Linda Atkinson of Albuquerque, who heads the DWI Resource Center. "The gaps, the loopholes in the system that have allowed him to continue to be out on the road, it's outrageous."
        A Journal investigation of Ruiz's arrests shows a trail that wound through a number of New Mexico courts. It also reveals:
        • Confusion over interpretation of state law, allowing some judges to impose what one prosecutor called "fictional probation."
        • Miscommunication among police, courts, prosecutors and the Motor Vehicle Department.
        • Missing paperwork crucial for later prosecutions.
        • Cases that were either plea bargained down or in which Ruiz faced lesser charges.
        • Warrants issued in one county, but without jurisdiction statewide.
        The end result: Ruiz's running total of DWI offenses remained artificially low, helping him avoid felony counts and reducing his sentences. Despite four DWI convictions since 1995, he has spent little time behind bars.
        And at the time of last month's fatal crash, he was out on bond for his fifth DWI arrest, which was charged as another misdemeanor. Authorities now agree it should have been treated as a felony, which could have had an impact on the status of his case — and his freedom.
        Asked if it is possible that Ruiz would have been in jail instead of on the street the night of the fatal crash if Ruiz's cases had been handled correctly, state DWI czar Rachel O'Connor said, "Yes."
        "Do I think there's system issues in this case? Absolutely," she said. "Obviously, there's times the ball has been dropped in his history and the times it was dropped was significant."
        Now, Ruiz is in the Santa Fe County jail on a $2 million cash-only bond, facing vehicular homicide charges after he plowed into the car carrying the Peshlakai family last month.
        First mistake
        The problems started with Ruiz's first DWI arrest in 1995, when he was 20. Court records are sketchy, some appear to be missing and some are contradictory.
        But the most glaring misstep was that the case abstract — a summary of the case disposition that is supposed to be forwarded to the state Motor Vehicle Division — was never sent to MVD by Santa Fe Municipal Court.
        MVD relies on the abstracts to keep track of DWIs for license revocations and to keep a tally of the number of DWI offenses. As a person's DWI tally grows, so does the punishment. A fourth offense is a felony, which requires a minimum six-month prison sentence.
        Failure to send the abstract of the 1995 case to MVD automatically gave Ruiz a freebie when counting his DWIs in subsequent cases.
        "Because the abstract was not sent in, it (this case) was not used as a prior in other cases," O'Connor said. "If used properly, he would have hit the felony level earlier."
        So when Ruiz was busted a second time for DWI — in Albuquerque on Jan. 30, 2001 — the case was treated as a first offense. He received a year of probation, and his license was revoked for a year.
        His third DWI arrest occurred near Santa Fe in 2003. He pleaded guilty in Santa Fe Magistrate Court to second-time DWI and was sentenced to 364 days in jail, with all but four days suspended. He was placed on five years of unsupervised probation, paper records say — although the court Web site indicates it was three years — and to in-patient and out-patient substance abuse treatment.
        But that three- to five-year probation period was apparently bogus.
        Fictional probation
        Ruiz was arrested on his fourth DWI in Farmington in 2005 — less than two years into his probation, which could have meant jail time for violating the terms of his release.
        But Santa Fe District Attorney Angela "Spence" Pacheco said a state statute noted in the records refers to a law that grants only "limited jurisdiction" to magistrate courts. Even though a magistrate judge is theoretically able to impose up to five years of probation on a second or third DWI offense, the magistrate court's "authority lasts for only one year," she said.
        "The other four years (of probation) are fictional," she said. "This case illustrates the confusion and ambiguity in DWI law. There are so many contradictions."
        In the Farmington case, Ruiz's charges at first included a third DWI and aggravated DWI, a charge for drivers with blood alcohol contents of at least twice the legal driving limit of 0.08 percent. His BAC was 0.29.
        But he pleaded guilty in front of Municipal Judge William V. Liese to a lesser charge — second-offense, non-aggravated DWI.
        As part of the plea bargain, his sentence of 179 days in jail was suspended upon completion of a 28-day DWI jail/treatment program, which he did. He was also sentenced to one year of supervised probation, installation of an ignition interlock and other requirements, such as community service and fines.
        If he had been convicted of a third DWI, he could have been sentenced to up to 364 days in jail — the same as for a second DWI — but with 60 days mandatory. And had the aggravated charge stuck on a third DWI conviction, another 60 days in jail would have been required.
        Farmington City Attorney Jay Burnham said "it's not unusual" for defendants to be allowed to enter lesser pleas.
        "It's kind of a matter of course," Burnham said. "It's part of the judicial economy to plead without a trial and it's customary, almost, to offer a plea ... Neither the courts, nor do we, have the resources to try every DWI."
        However, Burnham said that, if there had been three usable prior DWIs, Ruiz would not have gotten off so easy and would have been charged with a felony. "He would not have been charged in municipal court," he said. "It would then be a (state) district court matter."
        But failure to send paperwork of his first DWI to MVD in 1995 precluded that from happening.
        Outstanding warrant
        Less than five months after he was sentenced in the Farmington DWI arrest, Ruiz's use of alcohol got him into trouble again. This time, he wasn't driving.
        Ruiz pleaded guilty in Albuquerque Metropolitan Court on Oct. 30, 2006, to two counts of battery and was sentenced to 180 days in jail. He spent 117 days behind bars, earning an early release on Jan. 2, 2007, with "good time" credit.
        The domestic violence case centers on two incidents in August and September 2006.
        According to a criminal complaint, Ruiz's mother told officers that her son "had been drinking alcohol all night and that he started to be very belligerent." She took a bottle of wine from him and "poured it down the drain." Ruiz became upset and "grabbed her by the biceps and then thrusted his stomach into her." He left before police arrived.
        Less than two weeks later, officers were called to the home again and this time Ruiz was there. The mother again reported that Ruiz's drinking was causing problems and that she tried to take booze away from him. In response, Ruiz "grabbed her left arm and pushed her to the ground, then James poured the alcohol out on (his mother's) head."
        He was taken into custody.
        Records show that Farmington officials considered the domestic violence case in Albuquerque a violation of Ruiz's probation for the DWI sentence he had received in Farmington five months earlier.
        In fact, as a result of the domestic violence case, a bench warrant was issued in Farmington for Ruiz's arrest and remains outstanding today.
        But Ruiz never had to go back to Farmington and face the probation violation charge, which could have put him behind bars for an additional six months.
        Metro Court spokeswoman Janet Blair said no one from Farmington followed up on the warrant. "Farmington has to determine whether to extradite for a misdemeanor," she said, and the district attorney must file the request.
        But Burnham said a bench warrant from his city court doesn't have jurisdiction outside San Juan County — and they don't normally enter them if they are outside the county.
        "It's also partly related to the fact that it is a misdemeanor. It's a whole different answer if you get in a different area, like a felony," he said.
        Final chance
        That brings us to Ruiz's DWI arrest in Santa Fe in 2008, authorities' final chance to put him behind bars for a significant amount of time before this year's tragic crash.
        On May 6, 2008, he was found by a Santa Fe police officer "unconscious behind the steering wheel" of his Toyota. The engine was running. The officer turned off the ignition and attempted to wake up Ruiz but was unsuccessful.
        The officer reported that he "could smell a strong odor of an alcoholic beverage," and, when a paramedic arrived, the officer overheard Ruiz saying he had consumed "10 beers earlier in the day." Three full cans of beer were found inside the vehicle. A blood sample taken after his arrest showed Ruiz's BAC at 0.35 percent — more than four times the presumed level of intoxication.
        Although he had been ordered to have an ignition interlock on his car by Farmington Municipal Court, there is no mention in the criminal complaint of Ruiz's vehicle having one.
        Ruiz was booked into the Santa Fe County jail and, shortly after, a bond of $10,000 cash or surety was set by Magistrate Judge Richard Padilla. Ruiz posted bond on July 24 — about seven weeks after his arrest — and was released.
        Part of the reason the case is still pending almost two years later is a request by James Ruiz's father that he be allowed to go to a 60-day rehab center in California.
        "James finally broke down and cried out for help," reads a letter from Joe Ruiz dated about three months after the 2008 arrest. "Both his mother and I felt that if we did not intervene immediately, James might have done something to injure himself including suicide." (Joe Ruiz is the former New Mexico state insurance superintendent currently serving time in federal prison for his role in a shakedown scheme involving insurance companies.)
        Judge Padilla agreed and court records show that James Ruiz was accepted into a California treatment center in August 2008. But nothing in the records confirms he completed the 60-day stay. In one document, the District Attorney's Office says Ruiz "did not notify the court that he completed treatment or that (he) returned to New Mexico."
        Paperwork mix-up
        A big issue in the 2008 case is whether it was a misdemeanor or felony.
        Originally, the charge against Ruiz was filed as a felony fourth offense but was amended by the District Attorney's Office to a misdemeanor third offense. (He was never charged with aggravated DWI, in spite of evidence that his BAC was 0.35.)
        Pacheco, who was not DA when Ruiz was charged in 2008, said the charge had to be kicked down to a third offense because the 2003 DWI out of Santa Fe could not be used as a prior offense.
        The reason? A paperwork problem.
        The abstract sent to MVD in the 2003 case said Ruiz chose to represent himself without an attorney, but failed to show he signed a waiver of "counsel." Without records showing he waived his right to an attorney, the conviction is unusable in tallying the number of DWIs, Pacheco said.
        "Again, this just tells you the confusion surrounding the law," the DA said.
        But DWI czar O'Connor presented records to the Journal that showed the abstract was in error and that Ruiz did, in fact, have an attorney.
        Pacheco said her office is now aware of that paperwork, and the prior should have been counted toward his charge in 2008.
        Now, it may be a moot point given the vehicular homicide charges Ruiz faces.
        Pacheco said her office is looking into the law to determine whether an additional conviction, should there be one in the 2008 DWI, could be counted toward sentencing for the vehicular homicide charges. Each prior can add four years on a vehicular homicide sentence.
        When asked why the DA's office never came across the attorney information in the court file of the 2003 case, Pacheco told a reporter, "In fairness, that's the only case you're dealing with. We literally deal with thousands."
        "We don't have time to go to magistrate court and go through thousands of cases."
        Had Ruiz been charged with a fourth offense felony in 2008, he would have faced up to 18 months in prison on a felony charge.
        And he would have gone through the state District Court system, which might have imposed a higher bond and other conditions for pretrial release, like an ankle monitor or alcohol testing. Had he failed any of those, he would most likely have been tossed back in jail.
        The 2008 case is now scheduled for trial later this month. But, on Monday, the judge is scheduled to take up a defense motion to dismiss the charge altogether, on grounds that the state has violated Ruiz's right to a speedy trial.
        A felony charge with a tough potential sentence, a stiffer bond, a case that didn't drag on for two years — those are all factors that could have put Ruiz in jail or prison instead of on the street the night of March 5.
        And Deshauna and Del Lynn would still be alive.
        'We Have To Jump Through Hoops'
        Other issues with prior convictions can also pose problems for prosecutors, according to Santa Fe District Attorney Angela "Spence" Pacheco.
        "A lot of times, we're dealing with courts of no record," she said of lower courts like municipal and magistrate. "When we go back and try to determine what happened, it's difficult. We have to jump through so many hoops just to prove a prior.
        "It's the paper chase."
        Linda Atkinson of DWI Resource Center shares in Pacheco's frustration over court records.
        "The millions of dollars in court automation we use and when you have all this money to address these issues and there is no accountability, it's very frustrating," Atkinson said. "We have to depend on pieces of paper floating around. That's ridiculous. It's the 21st Century."
        DWI czar Rachel O'Connor said Ruiz's history is full of missed chances.
        "There were numerous violations of his conditions that weren't reported to the courts or which the courts didn't take action on," she said. "There would have been numerous opportunities for intervention."
        James Ruiz's arrests
        James Ruiz's court records paint a story of a booze-fueled criminal history:
        1. DEC. 16, 1995: Ruiz was arrested for his first DWI in Santa Fe. He pleaded no contest. Ruiz's license was revoked for a year. There's a finding of not guilty in later paperwork, which could indicate a "deferred sentence" after Ruiz completed court requirements. The case abstract was never sent to MVD.
        2. JAN. 30, 2001: Ruiz was arrested in Albuquerque after a witness saw a vehicle roll into an intersection with Ruiz "slumped over the steering wheel." Ruiz told police: "I had way too much to drink," and "I shouldn't have been driving."
        He pleaded guilty to a first-offense DWI, was sentenced in April 2002 to a year of probation and community service. Ruiz's license was revoked for a year.
        3. JUNE 7, 2003: Ruiz was arrested on I-25 south of Santa Fe, traveling 110 mph in a 75 mph zone. Ruiz provided the deputy with his brother's Social Security number. Breathalyzer tests reported his BAC to be 0.22 and 0.19 percent.
        Ruiz pleaded guilty to a second-offense DWI, careless driving and speeding. His license was again revoked by MVD, for another year.
        4. OCT. 16, 2005: Ruiz was arrested in Farmington. A witness said he was weaving in and out of traffic and "traveling at speeds of 90 mph" before colliding with a pole. Ruiz admitted being "inebriated." His BAC showed 0.29 percent.
        Ruiz plea bargained down to guilty to second-offense, non-aggravated DWI. Ruiz completed a 28-day DWI jail/treatment program. He was ordered to have an interlock for three years and put on supervised probation for a year.
        5. DEC. 2005: Police found Ruiz outside his car along N.M. 550 near Cuba, where it had stalled. The responding deputy reported smelling alcohol on Ruiz's breath and finding open containers of alcohol in the vehicle, which had an interlock device. The Toyota was towed and Ruiz was taken to the police station.
        But the deputy noted in his report that the corporal "told me not to charge Ruiz with DWI because I did not see him driving and he was not in the vehicle when I arrived on scene."
        Sandoval County Sheriff's Capt. Ed Morrison told the Journal, "DWI laws are very specific."
        "In order to charge someone, they must be in control of the vehicle," he said.
        Ruiz was cited for driving with an open container and driving without a license — even though no deputy saw him driving. He pleaded guilty to both and paid $145 in court costs.
        6. FALL 2006: A bench warrant for probation violation was issued after Ruiz was charged in a domestic violence case in Albuquerque. He pleaded guilty to two counts of battery and spent 117 days behind bars. The probation violation warrant remains outstanding today.
        7. MAY 6, 2008: Ruiz was arrested for DWI in Santa Fe. His BAC was at 0.35 percent. Ruiz was booked into jail and on July 24 posted a bond of $10,000 cash or surety. He faces a charge of misdemeanor third offense, which is still pending. Officials now say he should have been charged with a felony.
        8. MARCH 5, 2010: He was driving a friend's Ford F-250 on Santa Fe's Cerrillos Road when he rammed the back of a car carrying the Peshlakai family from Naschitti, who were in town for a high school basketball game. Sisters Deshauna, 17, and Del Lynn, 19, were killed. Ruiz's BAC was measured after the crash at 0.22 percent.

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