ALBUQUERQUE, N.M. (KRQE) – An ongoing public corruption scandal has put extra scrutiny on how DWI cases are handled in the courts. One way cases can get dropped is when officers fail to show up to a criminal hearing. KRQE Investigates uncovered another way accused drunk drivers have been getting a free pass. It involves what officers were doing outside of the courthouse, and the problem is widespread.
When a driver is arrested for DWI and refuses a breathalyzer, or tests at or above the legal limit, New Mexico law says the driver’s license should be revoked. “Your license gets revoked within 20 days unless you ask for a hearing, in which case your license remains valid until the date of the hearing,” explained Sen. Antonio ‘Moe’ Maestas. “So the government has to have a hearing to take your license away.”
What is a driver’s license revocation hearing?
In an administrative license revocation hearing, an arresting officer explains the DWI arrest he or she made to an Administrative Hearing Officer. A driver’s defense attorney can then cross-examine the officer. If the hearing officer agrees there’s probable cause, the driver’s license is revoked under New Mexico’s Implied Consent Act.
However, KRQE Investigates found that accused drunk drivers are often allowed to stay behind the wheel because officers aren’t showing up to those administrative hearings. Officers’ failure to appear is a widespread problem across New Mexico.
KRQE Investigates also looked at cases handled by a defense attorney at the center of a federal public corruption scandal, Thomas Clear III. Federal agents raided his office earlier this year under suspicions he worked with police officers and took money to get DWI cases dismissed in criminal court. Records KRQE obtained from the state’s Administrative Hearing Office reveal drivers are also let off the hook on the administrative side of DWI cases.
“Today’s hearing is a video hearing,” an Administrative Hearing Officer is heard in the audio record for a license revocation hearing in October of 2021. “On the screen for the driver is Attorney, Thomas Clear.”
Attorney Clear shows up to the Zoom hearing, but the arresting officer is a ‘no show.’ “Officer Muñoz and Officer Montaño of the Albuquerque Police Department were both subpoenaed to testify by video,” the hearing officer states. “They’ve both failed to dial in, appear. Without their testimony, the state will not be able to meet its burden and therefore the revocation shall be rescinded.”
Officer Joshua Montaño is one of 10 officers APD investigated, as part of its own probe into the DWI corruption scheme. “It’s now 1:16 [p.m.], there’s no email from Officer Montaño or any messages about his difficulties, so I’m gonna mark it as a failure to appear,” the hearing officer states.
How often do DWI suspects keep their licenses?
Records from the last three years show in cases where DWI suspects hired Clear to defend them, the arresting officers failed to show up to their license revocation hearings at least 87 times. That same data reveals Clear’s DWI clients kept their driver’s licenses 74% of the time they had a license revocation hearing. Compare that to the statewide rate, of just 47%. And in the metro, accused drunk drivers get to keep their driver’s license only 46% of the time they request a hearing.
“I should take note that Officer Alba Jr. of the Albuquerque Police Department is not present,” another hearing officer from a separate license revocation hearing notes the absence of Officer Honorio Alba, the arresting officer whose testimony is crucial in the revocation hearing. “I’ll issue an order rescinding the revocation,” the hearing officer states. “And officers, be safe out there,” Clear added.
The failure to appear by arresting officers in a DWI case automatically results in accused drunk drivers keeping their license to drive. It works similarly to a court hearing where an officer doesn’t show and a case can get dismissed.
“It’s despicable,” explained Linda Atkinson, Executive Director of the DWI Resource Center, and a longtime advocate for DWI victims. “To deter drunk driving, you need something swift, sure, and certain. This is swift, sure, and certain until you have officers that decide not to show up.”
“What this does when we still require officers to be present, is this kind of game-playing that goes on and it’s wrong,” said Atkinson. “It’s criminal. The state has got to step up,” she added.
“I think everyone’s taking a long, hard look at how we got to this situation,” explained APD Communications Director, Gilbert Gallegos. Gallegos told KRQE News 13 that the police department now shares officers’ direct work calendars with the Administrative Hearing Office and criminal court, improving overall officer attendance.
So when a ‘no show’ is reported, “We are looking at it and they’re going to find out,” said Gallegos. “You know, if it continues to happen, that there are repercussions.”
A ‘free pass’ for DWI suspects
In one example, Elier Quintana-Antillon was arrested for DWI in 2018 by former APD Officer Joshua Montaño. “Can you tell me about the crash?” Montano is seen on lapel video asking Quintana-Antillon. “What crash?” The driver replied. “The crash that you were involved in,” the officer answered.
Witnesses said Elier Quintana-Antillon barreled through a coned-off construction zone, just missing the work crew with his car, then tried to drive off. “He tried taking off again and then he swung at me so I pulled his ass out of the car and choke-slammed him, and then they tied him up,” a construction worker told Montaño at the scene.
Construction workers used a work belt as makeshift handcuffs until police arrived. Quintana-Antillon admitted to drinking alcohol. “How much did you have?” Montaño asked. “Like about two beers,” Quintana-Antillon answered.
Despite his admission, the driver refused a blood-alcohol test. Montaño noted failed field sobriety tests and charged the driver with DWI. This year, Quintana-Antillon’s case was among 200-plus cases dropped due to Montaño’s and other APD officers’ credibility being called into question, part of the federal corruption scandal.
Should officers be required to attend license hearings?
Atkinson argues these administrative hearings are another opportunity to hold drunk drivers accountable. And regardless of officers’ attendance, their DWI report should speak for itself, she claims. “A record that would say this was what happened, this is what occurred, and it’s a finding of facts,” said Atkinson.
Democratic Senator Antonio ‘Moe’ Maestas who’s also an attorney, says there’s a reason officers must show up to administrative hearings. “It’s a big deal for the government to rescind a permission slip, a business license, a driver’s license, any type of license,” Sen. Maestas told KRQE. “So you need probable cause to rescind that license. And without someone telling the story and cross-examination, it may not be constitutional,” he added.
It’s a frustrating reality for DWI victims. “Victims get the message,” said Atkinson. “They get it, the way they’re treated through the criminal justice system.”
Accused drunk drivers like Quintana-Antillon, send a message of their own. He’s seen on the officer’s lapel video flipping off Montaño from a hospital gurney. “What can I say?” Quintana-Antillon told Montaño. “You said it all,” the officer replied.
Seven APD officers, including Montaño, have resigned and a Commander has since been fired from the police department. So far no one has faced any criminal charges.
Clear had ‘no comment’ for this report. He’s since taken down his law practice website.
