ALBUQUERQUE, N.M. (KRQE) - Joshua Malecki sat hopeful in court Thursday as his attorney argued a trio of motions to dismiss his case, exclude breath test results and to suppress his wife's testimony.
The suspended APD officer is accused of driving drunk off-duty in his patrol car last August and crashing into a curb on Wyoming near I-40 before getting a ride home from a friend.
"Officer Malecki was out driving intoxicated was upset about some sort of extramarital affair," said Malecki's supervisor, Sergeant Peter Silva.
Silva testified that was the call he got about the incident. When officers made contact with Malecki back at his house, they found evidence it was true.
"I noticed the odor of an alcoholic beverage coming from Officer Malecki," said Silva.
However, Malecki's attorney Sam Bregman argues no one can prove his client didn't get drunk at home, after the crash.
"Nobody knows the time of drive for my client," said Bregman.
He also claims the breath test wasn't done within the legal time frame.
"Are you aware that a breath test was given after three hours from driving?" Bregman asked Silva.
"I don't know when a breath test was given," Silva replied.
Yet, both Silva and another officer that testified Thursday they're certain Malecki drank before the crash.
"Had he been drinking when he'd gotten home afterwords? Did you ask him that question?" Bregman asked Sergeant Silva.
He replied, "I did."
Bregman then asked, "And he said no?"
Silva replied again, "He said no."
When Sergeant Kyle Curtis with the Albuquerque Police Department DWI Unit took the stand, he said, "I asked him if he'd consumed any alcohol after returning home from the crash... his response, 'no."
That's why Judge Michelle Castillo Dowler denied the motions.
"I am denying the motions. This is a jury question. This is not something that me as a judge should be taking out of a jury's hands," said Judge Dowler.
Police say Malecki blew above a .08.
Judge Castillo Dowler ordered Malecki's wife, the sole witness in the case, to give a pretrial interview.
Malecki's trial is set for April 5.
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