OPINION: Supreme Court ruling exposes yet another shortcoming of state's DWI laws

On July 27, the Albuquerque Journal reported Sergio Almanza will be granted “good time” at a rate of 50% while in prison. This will allow him to cut about 11 years off his 25-year sentence for killing a young boy in front of the River of Lights festival in December 2021.

Almanza was found guilty of homicide by vehicle while intoxicated, great bodily harm by vehicle, knowingly leaving the scene of an accident, two counts of tampering with evidence and driving an off-highway motor vehicle on a paved street or highway. He was sentenced to 25 years in prison. But with good time, as calculated under a recent New Mexico Supreme Court ruling, the total time he serves in prison could be closer to 14 years.

Attorney General Raúl Torrez is correct the Legislature must correct this.

Here are some of the other DWI issues the Legislature has not addressed.

In 2016, the U.S. Supreme Court issued a decision on DWI blood tests in Birchfield v. North Dakota case. In their decision they stated all DWI blood tests must be done pursuant to a search warrant. New Mexico does not allow a search warrant for misdemeanor DWI, only felony DWI. Misdemeanor DWIs are DWI first, second and third offense. Prior to the Supreme Court ruling, most blood tests were taken from drivers who were being treated at the hospital.

Since 2017 legislation has been introduced to allow misdemeanor DWI search warrants but the Legislature has not passed a law to allow these search warrants.

If a blood test was conducted, the defense attorneys know the state testing facility is in Albuquerque with a low number of experts to testify in court. Defense attorneys across the state demand these experts testify in each court case. The defense attorneys know the experts must choose which cases they will testify at and the other cases will be dismissed.

During COVID the court allowed these experts to testify by Zoom. These experts didn’t participate in the arrest of the defendant and are only testifying about the quantity of alcohol or drug found in the blood sample and how the alcohol or drug could affect their driving. Legislation has been introduced to allow Zoom testimony but the Legislature has not passed it.

Every state that allowed recreational marijuana realized that there would be an increase of drugged drivers and included drugged driving legislation in their marijuana law except New Mexico. In New Mexico, the only way to determine a drug in a driver’s blood is by blood test. For years I have tried to strengthen our drugged driving law with no success.

In fact we have two DWI standards. For driving under the influence of alcohol it is “who is under the influence of intoxicating liquor to drive” while drugged driving is “under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle.”

The drugged driving standard is harder to prove than the alcohol standard. I have been unsuccessful in making the standards the same.

In my 2021 proposed law, House Bill 187, the NM Scientific Lab noted: “the influence of drugs is a growing problem in New Mexico. The SLD tests for drugs in all implied consent cases in which the blood alcohol level is less than 0.08. In 2018, approximately 90 percent of the blood specimens tested for drugs by the SLD in DWI cases were positive for drugs other than alcohol. 2018 report by the Governor’s Highway Safety Administration reported (using FARS data from 2016) that of fatally injured drivers who were tested, 43.6% tested positive for one or more drugs other than alcohol and 37.9% tested positive for alcohol. There was a high overlap of drugs and alcohol, with 40.7% of drug-positive drivers also testing positive for alcohol. Additionally, the percent of alcohol-positive fatally injured drivers decreased from 2006 to 2016 (41.9% in 2006 to 37.9% in 2016) while the percent of fatally injured drivers who tested drug-positive increased (27.8% to 43.6%) over the same timeframe.”

Again, these are examples of progressive Democrats not wanting to put anyone in jail.

William “Bill” R. Rehm, of Albuquerque, represents District 31 in the New Mexico House of Representatives. He is not seeking reelection this year.