Gillson vows sentencing changes
Defense attorney defends DA's office in DWI cases

By Bill Donovan
Staff Writer

GALLUP — The McKinley County District Attorney's Office is planning to change the way it handles plea bargains in DWI cases after an Albuquerque television station revealed that their practices violated state law.

KRQE-TV reported Monday in a copyright story that the practice violated a New Mexico law that prohibits anyone who is charged with DWI to plead guilty to a non-DWI offense, such as careless driving.

The Albuquerque television station also accused the district attorney's office of improperly plea bargaining at least 50 cases in recent years.

"I will concede that, yes, my attorneys did enter into some plea negotiations that were contrary to the statute," District Attorney Karl Gillson said in the television interview.

However, Gillson said he offered the plea agreements only for problem DWI cases in which a witness failed to appear or there was a lack of evidence. Rather than dismissing the case, Gillson said such plea bargains provided a penalty for the defendants.

He acknowledged that prosecutors, defense attorneys and judges had made mistakes.

"These three parties, and I'm not pointing fingers, missed paying attention to this particular statute," Gillson said.

The KRQE report, done by Larry Barker, concentrated on three cases.

Frazier Kee of Gallup was charged with his second aggravated DWI in 2004 and faced a mandatory sentence of eight days in jail. When Kee saw a judge, he pleaded guilty to careless driving and paid a $10 fine.

Marcella Smith of Mexican Springs, N.M., was charged with her third aggravated DWI. She would have faced a mandatory 90 days in jail if convicted, but instead pleaded guilty to careless driving and was fined $198.

Renalden Saunders of Fort Wingate fled a DWI crash that sent a woman to a hospital. He was charged with his fourth aggravated DWI and faced six months in jail, but pleaded guilty to careless driving and failure to yield. He was placed on probation and ordered to do community service.

Gillson said on Wednesday that he was looking into these three cases to determine what actually was decided.

"These are cases that may have gone to the DWI drug court," he said.

In Gillson's defense
Bobby Franklin, a well-known defense attorney who handles a number of DWI cases annually, said Wednesday she found herself in an unusual position defending Gillson.

In at least two of the cases mentioned by Barker, she said, the defendant was also required to go to the DWI drug court, which cannot be viewed as an easy punishment.

People who are assigned to the drug court must provide urine samples on a regular basis to prove that they haven't been drinking, and they're required to get individual counseling once or twice a week and group counseling once a week. "And they do this for one to two years," she said.

The problem with the Barker piece, she said, is that Barker never really understood the unique situation Gallup faces and the unique way it set up the drug court to handle these problems.

"This is different than the one that is in Bernillilo or any other city," she said. And that difference is what makes it successful, she added.

By diverting people to the drug court instead of making then pay heavy fines or putting them in jail where the county would have to pick up the cost to incarcerate them, the court provided the people with a chance to continue their life under court supervision.

But the Barker report did get some people upset.

Backlash
Rachel O'Connor, the state's DWI czar, was alarmed by the practice since McKinley County has a history of DWI problems. The county is considered one of New Mexico's higher-risk areas, along with Bernalillo, Doa Ana, Rio Arriba and San Juan counties.

"McKinley County is an area of the state we worry about," O'Connor said. "It has a high amount of fatalities. ... We would like to see the strictest penalties imposed on DWI cases in McKinley County."

"I've not seen any cases that it has been appropriate to plead down from a DWI to a careless driving," O'Connor said.

Gallup's magistrates improperly accepted the plea agreements, the investigation found.

"It was (happening) enough that it was cause for concern," said Arthur Pepin of the state Administrative Office of the Courts.

However, he said, the law "will be strictly enforced" by all New Mexico magistrates, particularly those in Gallup.

Gallup Magistrate John Carey said the judges will no longer enter into improper plea agreements, and Gillson said his office will no longer offer the deals.

"The judges have been educated. Myself and my attorneys have been educated about this statute and we will follow the law," Gillson said in the television interview.

Low-level crimes
Franklin said that in many of the cases that she handled, the times when Gillson downgraded the DWI offenses to non-DWI charges were when the breathalyzer tests showed a blood alcohol level just below the .08 level, which is the standard to show that someone is driving under the influence.

However, all of the above mentioned cases were for aggravated DWI which means the offenders registered a higher blood-alcohol level or special circumstances were involved.

James Patterson an attorney within the DA's office with some 30 years experience in going after drunk drivers, "doesn't give away DWI cases," said Franklin. Instead of allowing those just under the limit to slide, he would agree to plead the case to a lesser charge, such as careless or reckless driving.

Now, with the new procedures, she said she thinks the DA's office will do just that dropping these cases instead of trying to make sure that people who do go out drinking and driving will face some kind of charge to make them think better of it in the future.

The Associated Press contributed to this report.