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Martinez Message

THE 13TH JUDICIAL DISTRICT ATTORNEY’S

REPORTER

Serving Cibola, Sandoval, and Valencia Counties

These summer

months have flown

by. During this

time I have contin-

ued to speak at dif-

ferent organiza-

tions and senior

centers about the

criminal issues that afflict our com-

munities. I would like to thank you

for taking time from your busy

schedule to allow me to speak with

you.

The Sandoval County Office host-

ed the Rio Rancho Chamber Busi-

ness After Hours event on July 19.

Thank you to the following busi-

nesses for their donations . Your

contributions made the evening a

success. Club Rio Rancho provided

appetizers, Music provided by our

very own Michael Tapia, Door prizes

provided by Ponderosa Winery, Star-

bucks, Chili’s, Einstein Bagels and to

the Sandoval County DA employees,

your dedication to the community is

deeply appreciated.

Now that school has started,

please watch for school buses and

school zones. Once again my offices

will be working with truancy officers

of our local schools in Cibola, Sando-

val and Valencia counties. The goal

of the truancy law is to ensure that

every student attends school regular-

ly . Truancy is any intentional unau-

thorized absence. It is not illegal for

a child to miss school. It is illegal for

a parent to knowingly allow a child

to be absent without cause.

Students who are chronically absent

fall behind and drop out of school.

Community members promoting

education and school attendance

helps build a healthy future for our

children.

I will continue my efforts in

speaking to community organizations

who wish to learn more about on-

going concerns in the communi-

ty. To make arrangements for me to

speak at your organization please

contact: Yvette Gurule at

Yvette Gurule@da.state.nm.us 0r

please call 505-771-7413.

Stay safe this Labor Day Holiday!

Sincerely, Lemuel Martinez,

13th Judicial District Attorney

Lemuel L. Martinez District Attorney

Cibola County 515 W. High Street

PO Box 637

Grants, NM 87020

(505) 287-1297

Sandoval County 711 Camino Del Pueblo

PO Box 1750

Bernalillo, NM 87004

(505)771-7400

Valencia County Ron P. López Chief Deputy

District Attorney 101 S. Main Street #201

PO Box 1919 Belen, NM 87031

(505) 861-0311

Offices:

Contents:

Martinez Message p 1

Legal Brief p 2

High Profiles p 3-4

District News p 5 –8

Summer 2016 Red Rock of Jemez, Sandoval County

2

Legal Brief: The Impact of Birchfield v. North Dakota in New Mexico

The Impact of Birchfield v. North Dakota in New Mexico

Birchfield is a case, pertinent to our DWI prosecutions, which came down from Supreme Court of the United States (SCOTUS) on

June 23rd of this year. The basic holdings are that a blood test is significantly more intrusive than a breath test in a DWI case and

therefor require a warrant in a DWI investigation, and states cannot impose a criminal penalty on a person for refusing to submit to a

blood test.

When SCOTUS granted certiorari on Birchfield it granted cert on two other, similar cases as well. One was another case out of

North Dakota; Beylund, and one a case from Minnesota; Bernard. All three B’s were arrested on drunk-driving charges.

In Birchfield, the officer advised the defendant of his obligation under North Dakota law to undergo blood testing and advised that

refusal to do so would lead to criminal punishment. Birchfield refused and was charged with a misdemeanor violation of the refusal

statute. The refusal statute imposed criminal sentences ranging from a mandatory fine of $500 to fines of at least $2,000 for repeat

offenders and possible imprisonment of at least one year and one day. Birchfield plead guilty to the refusal, but his plea was condi-

tional: while he admitted refusing the blood test he argued that the Fourth Amendment prohibited criminalizing his refusal to submit.

The ND Supreme Court affirmed Birchfield’s conviction. SCOTUS reversed.

In Beylund, the defendant consented to have his blood drawn and later argued that he agreed only because of the coercive nature of

the threat of criminal sanctions. Beylund was facing the same criminal sanctions that Birchfield faced. The ND Supreme Court af-

firmed Beylund’s conviction. SCOTUS remanded for the ND Supreme Court to decide the case in light of the Birchfield decision.

Finally, in Bernard, the case from Minnesota, where refusal to submit to chemical testing (and in this instance, breath testing) could

result in criminal penalties from no more than 90 days imprisonment and up to $1,000 in fines for a misdemeanor to seven years im-

prisonment and $14,000 in fines for repeat offenders, the defendant refused and his refusal was not found to violate the Fourth

Amendment because the MN Supreme Court reasoned that a breath test would have been a valid search incident to arrest. SCOTUS

affirmed as breath tests are not as invasive as blood tests.

I went to trial a few weeks ago on a DWI 3rd. The facts of my case were similar to Beylund. My defendant was arrested after

questionable SFSTs, breathed a .05/.05, told the officer he was on prescribed narcotics for Schizophrenia and gave his consent to be

blood tested. Defense argued Birchfield saying that the defendant felt coerced by the threat of criminal sanctions if he refused to

submit to blood testing.

In New Mexico we have the typical administrative sanctions that most states do, and that Birchfield upholds as reasonable,

wherein a person’s license and privilege to drive are revoked for a year or longer depending on the history of the person’s DWI rec-

ord. It can be argued, and was at the motion’s hearing before my trial, that New Mexico doesn’t have criminal sanctions, or make it

a crime in and of itself to refuse to submit to blood testing. The argument is that before any criminal punishment in the form of fines

or loss of freedom can result from a refusal, a DWI must first be proved. Once the DWI is proved up, the refusal simply aggravates

the charge and enhances the sentence. I argued further that the nature of the sanctions imposed for a refusal in New Mexico distin-

guish our laws from those in North Dakota because the sanctions in ND curtail a person’s freedoms so much more than ours. Unlike

ND, where refusal ensured criminal sentences ranging from a mandatory fine of $500 to fines of at least $2,000 for repeat offenders

and possible imprisonment of at least one year and one day, for a DWI 1st here, a person faces only 48 hours in jail as a sentence

enhancement, for a DWI 2nd only 96 hours and for a DWI 3rd only 30 days. Furthermore, we impose no criminal sanctions for re-

fusing to submit to chemical testing in felony cases.

In my case, the Magistrate in Cuba ruled that he would allow the blood results in evidence despite the ruling in Birchfield be-

cause the New Mexico Implied Consent Act that officers read to a DWI arrestee says nothing explicitly about criminal sanctions and

is therefore not overly coercive. He ruled this was also because our sanctions require a conviction on the

underlying DWI before a refusal can even be considered to have criminal consequences. In other words, it

is not a crime in and of itself to refuse to submit to blood testing in New Mexico. Perhaps in the future, we

will not be able to aggravate the underlying DWI. Remember, this is only for blood tests.

One can see how another magistrate may have come to the opposite ruling. This is an issue upon which

reasonable minds can differ and I think we will see this go to the Court of Appeals here in New Mexico.

By: Jescia Hyland,

Assistant District Attorney

Sandoval County

Sandoval County District Court

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Cibola County:

State v. Ruben Romero (Serious Youthful Offender), Grand Jury Indictment charge: First De-gree Murder (Willful and Deliberate), Trials are expected to begin the summer of 2016, DDA R. Da-vid Pederson, ADA's Brandon Vigil and Stephen O'Brien, prosecuting

State v. Delilah Baca, Grand Jury Indictment charge: Tampering with Evidence, DDA R. David Pederson, Trials are expected to begin the summer of 2016, ADA's Brandon Vigil and Stephen O'Brien, prosecuting

State v. Rudy Valencia (Serious Youthful Offender), Grand Jury Indictment charge: First Degree Murder (Willful and Deliberate); Tampering with Evidence, Trials are expected to begin the sum-mer of 2016, DDA R. David Pederson, ADA's Brandon Vigil and Stephen O'Brien, prosecuting

State v. William Allen Crisp, Grand Jury Indictment charges: Attempt to Commit a Felony, to wit: First Degree Murder (Willful and Deliberate); Aggravated Battery against a Household Member (Great Bodily Harm) or in the Alternative: Aggravated Battery against a Household Member (Deadly Weapon); Tampering with Evidence, Pre-Trial Conference is scheduled for August 4, 2016 and Jury Trial is scheduled for August 22, 2016. DDA R. David Pederson, prosecuting

State v. Damon Perry, Criminal Information Charges: Second Degree Murder; Aggravated As-sault (Deadly Weapon); Abuse of a Child (Does Not Result in Death or Great Bodily Harm); Aggra-vated Assault (Deadly Weapon), Competency Pending, DDA R. David Pederson, prosecuting State v. Eric Smith, Indicted charges: Involuntary Manslaughter (Unlawful Act); Abuse of a Child (Does not result in Death or Great Bodily Harm) (3 counts); Tampering with Evidence, DDA R. Da-vid Pederson, prosecuting

Sandoval County:

State v. Andrew Romero , charged with the murder of Rio Rancho Police Officer Gregg ”Nigel” Benner. Set for trial in Valencia County September 2016. CDDA Ron Lopez, DDA Barbara Romo, ADA Sonya Duke prosecuting. State v. Tabitha Littles: Plead guilty to harboring a felon and conspiracy to commit armed rob-bery, for exchange for her testimony against co-defendant Andrew Romero, Sentencing called for 20 1/2 years mandatory: 16 years in prison followed by 41/2 years of probation. Ron Lopez, Barba-ra Romo and Sonya Duke prosecuting.

State v. Roberto Rodriquez; charged with multiple counts of first degree criminal sexual pene-tration for molesting his daughter; entered a plea on the eve of jury trial; pending sentencing; he is facing 21 to 34 years incarceration. Jessica Martinez and Andoni Garrotte prosecuting.

High Profile

New Cibola County District

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High Profile cont...

Sandoval County:

State v. Sammy Jimenez-Perez, State v. Alberto Rodriguez, State v. Omar Castillo, Grand Jury Indictment for Murder (First degree/Second Degree/Manslaughter), First Degree Kidnapping, Conspiracy to Commit First Degree Kidnapping, Tam-pering with Evidence, Extreme Cruelty of Animal, Conspiracy to commit Extreme Cruelty to Ani-mals, Receiving or Transferring Stolen Motor Vehicle, Conspiracy to Commit Receiving or Trans-ferring Stolen Motor Vehicle. Set for jury trial in November 2017. Troy Davis and Jessica Mar-tinez, prosecuting

State v. Sergio Chavez-Aguirre (Jury Trial Verdict). Convicted of the following charges: 3 Counts Aggravated Battery on A Household Member (without Great bodily harm), 3 Counts Ag-gravated Battery Against A Household Member (Deadly Weapon), Aggravated Battery Against A Household Member (Great bodily Harm), 7 Counts Abuse of a Child Intentionally Caused (no Great Bodily Harm), Intimidation of a Witness, Criminal Sexual Penetration. Sentenced to 22 years incarceration in the Department of Corrections. Jessica Martinez, Teague Williams, prosecuting

State v. Matthew Woll, Aggravated Assault on a Peace Officer (Deadly Weapon), Aggravated Assault Upon a Peace Officer (Deadly Weapon), Resisting, Evading or Obstructing an Officer. Pending jury trial.

Valencia County:

**State v. Abraham Flores (Jury Trial Verdict); Convicted of the following charges: 4 counts of CSC of a Minor in Third Degree (Position of Authority), 2 counts of CSC of a Minor in Second Degree (Person in Po-sition of Authority), 1 count of CSP of a Minor. Defendant was remanded into custody after the verdicts were read. Defendant received a 45 year sentence. 20 years to be served in the Department of Correc-tions. **Julia Clark Downs and Julia White prosecuting

State v. Jordan Hurd: (Jury Trial Verdict); Convicted of the following charges:2 counts of first degree murder and one count of Agg. Batt (DW), Defendant received 2 life sentences plus 4 years , Bryan McKay prosecuting

State v. Daniel Olguin: Plead guilty to 3 counts of aggravated Assault Upon a Peace Officer (Deadly Weapon) (3rd degree felony) with counts running consecutively to each other. Julia Clark Downs prosecut-ing.

State v. Nicholas Myers State v. Rachanda Myers, Grand Jury Indictment 2 counts of Child Abuse (No death or GBH), Aggra-vated battery (great bodily harm) Case is on the November 28th, 2016 docket, Frank Baca prosecuting

** Correction from Spring Newsletter Julia White

Valencia County District Court Valencia County District Court

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District News:Rio Rancho Regional Chambers After Hours

July 19, 2016

6

District News: DA Employee Arrested

Reyna Aragon, District Office Manager for the 13th Judicial District Attorney’s Office, did a little time for

a lot of good. She went behind bars on June 23, 2016 to benefit the Muscular Dystrophy Association.

Reyna raised $1,418.00 for the cause. The association fights to free children and adults from muscular dys-

trophy, ALS and related muscle debilitating life-threatening diseases. Thanks to everyone who donated!

The association will also be having a Muscle Walk on September 10, 2016 at 5:00p.m. at the North Domin-

go Baca Park (Wyoming and Paseo). If you would like to participate in one of these events or to make a

donation, you can visit the website at https://www.mda.org/office/albuquerque or call 505-828-1331.

7

District News:

Pre-Prosecution Diversion School Supply Drive:

Mr. Lemuel Martinez and the Pre-Prosecution Diversion program are proud to an-

nounce that approximately 80 backpacks filled with school supply items were collect-

ed to donate to those children in need this school year. These items were donated

across our district by defendants on the PPD program. Bernalillo Elementary, Carroll

Elementary, San Felipe Pueblo Elementary, Jaramillo Elementary, and Tome Ele-

mentary are of the five schools that these items were donated to. The program is ec-

static that we had such a great turnout and that many of the programs defendants par-

ticipated in this drive.

Keeping up drives that help out our community is a major focus of the program and as the warm weather is coming to

and end and the cold is returning the program will soon begin our Clothing Drive. This drive will run through Decem-

ber of this year. If anybody would like to donate a new jacket(s) to the program, please leave your donation with the

PPD Director, Desiree Lovato. The program will be accepting infant through adult sizes.

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District News: Happy Labor Day. Enjoy your day off to relax

Welcome to the 13th!:

Julia Petrucelli, Assistant Trail Attorney, Valencia County

Craig Meo, Investigator, Valencia County

Jacqueline Hanon, Clerk, Valencia County

Labor Day originated by the Knights of Labor and the Central

Labor Union. Oregon was the first state to make it a holiday on

February 21, 1987. In 1984 it became a federal holiday.

Labor Day is observed the first Monday of September. All gov-

ernment offices and many businesses are closed.

The District Attorney’s Office will be closed

Monday September 5, 2016 in observance of Labor Day.

Coming Soon

Cibola County is getting a new Judicial Complex. Cibola County Office, DA’s Office, Cibola District Court, Cibola APPO Office and DWI Compliance

700 E. Roosevelt Ave, Grants NM