ALBUQUERQUE, N.M. (KRQE) – The phrase mandatory jail time for repeat drunk drivers seems simple. They go to jail. But there are a few judges and prosecutors with a softer definition, which has a powerful state lawmaker accusing them of breaking the law.

In December 2021, a Bernalillo County Sheriff’s Deputy began following Jennifer Whitey on I-25 because he believed she was driving drunk. The criminal complaint stated she was randomly accelerating, turning on her left signal and moving into the right lane, and cutting off other drivers. But even after the deputy’s lights and sirens were activated, court records show Whitey did not stop. She exited the highway and continued driving for a little more than three miles before parking in someone’s backyard.

Body camera footage of Whitey’s arrest showed multiple deputies running up to the parked car. They yell at her to turn off the engine and get out. Whitey repeatedly asks them what she did wrong. “Come towards me,” one deputy said. A reluctant Whitey asked, “What is going on?” As the deputy handcuffed her, he explained to Whitey he tried to stop her multiple times. Whitey said she never heard the sirens or saw his police lights. As she walked to the backseat of a patrol car, another responding deputy’s body camera shows a 12-pack of beer with several empty cans in Whitey’s front seat. She ended up taking a breathalyzer test and blowing two times the legal limit, according to the arresting deputy.

This is Whitey’s 8th arrest for drunk driving. Her fourth in a two-year period.

At the substation, while Whitey was waiting to be booked, the arresting deputy let her have a break from the holding cell twice. On the second time, as Whitey finished a cup of water, she walked toward the trash can and then took off out the door.

Officer: What are you doing? Stop. Stop. What are you doing?
Whitey: No!
Officer: Stop it.
Whitey: Leave me alone!

The deputy quickly got ahold of Whitey, but she continued to scream and try to wrestle away from him. “Help me! Let me go,” she screamed.

As with all of Whitey’s DWI arrests, she only spent a night or two in jail and received a lenient sentence.

As part of a plea deal under the former Bernalillo County District Attorney Raul Torrez, Whitey admitted guilt to the December 2021 case and two other recent arrests – November 2021 and March 2020. She also acknowledged two previous DWI convictions from 1997 and 2014. The agreement? Despite establishing five DWIs, Whitey only pled to a 4th offense.

Because this is a 4th DWI conviction, Whitey should be spending a mandatory minimum of six months in jail. It’s the law. This agreement has her living at home participating in DWI Court first. If Whitey completes it, she’ll then serve a sentence of a little more than seven months remaining out in the public in the Community Custody Program on an ankle monitor, with random drug tests and weekly counseling.

“I mean, this is, this is very frustrating,” State Senator George Munoz said. He helped pass a law in 2016 that toughened up DWI sentences. He explained there is a reason why time in a jail cell became mandatory for a 4th offense. “There becomes a point in time when, when if you have a problem and you’re in danger of killing people, that it’s time that you need to go away for a little while,” the Gallup Democrat said.

He explained jail is like involuntary detox. It provides treatment and forces the habitual drunk driver to sit and think. But because the Community Custody Program is run through the Metropolitan Detention Center, the DA’s Office said it considers the program jail.

“It sounds to me like the DA is, is, is not informing the judge. And the judge is not informed on this, on the statute,” Munoz said. “It reads very clearly that on the fourth, the fourth time you’re going to jail, doesn’t say may, shall, will.”

“We want to see the judges coming down hard on a reoffender like this. So, we want to see them sentencing as they should be,” said Katrina Latka, affiliate Executive Director of Mothers Against Drunk Driving New Mexico. She explained the organization watches DWI cases move through the courts and would like to see consistency in sentencing. “We want to see those stiff penalties happen. We don’t want to see these folks fall through the cracks like this,” Latka explained.

2nd Judicial District Judge Clara Moran did initially reject the deal, citing a technical issue and Whitey’s history of DWI arrests. At that point, the DA’s Office told KRQE that it was done offering pleas. “We know we are taking it to trial though and there will be no offers made,” the former DA’s spokesperson, Lauren Rodriguez, said.

But, just six months later, an almost identical deal was brought to Judge Moran.    

“Does the state truly believe that this is in the best interest of the public and of the safety of the community?” the Judge asked the DA’s Office.

Former Assistant DA Pilar Borneo said the state does. Borneo explained, “She’s not a scary individual, she’s made poor choices. The facts of these cases certainly are concerning. But what she needs is that really good substance use treatment.” Borneo told the Judge that DWI Court will provide that for Whitey. Borneo said she never received proper help and argued Whitey behaved for the past six years leading up to 2020 and her four recent arrests — February 2020, March 2020, November 2021, and December 2021. Court records show Whitey’s February 2020 DWI charge was dropped because the officer did not show up to court. It was not refiled.

“It was right when COVID hit,” Borneo said. “And so, I don’t certainly want to put any thoughts or words into what’s going on in Ms. Whitey’s life, but as we understand, COVID was kind of a time – a triggering time for a lot of individuals. And a lot of individuals who had fought substance use disorders did fall off the wagon.”

Looking at the dates of Whitey’s 2020 arrests, both happened before the state’s lockdown. That’s not brought up.            

“We’re setting her up to succeed,” Borneo said. “We’re not setting her up to fail. And we’re setting her up so that this doesn’t happen in the future.”

A compliance hearing four months in revealed Whitey, who is living at home, is not doing well with DWI Court. The state asked for medical intervention for her alcohol use because Whitey has had a series of positive tests. Concerns were also raised about Whitey lying to the DWI Court team. The Judge told Whitey she is on “thin ice.”

“I don’t know when people are going to wake up – the courts, the DAs, the public defenders — and say the statute is very clear, judge, you need to incarcerate this person,” Senator Munoz said. “She’s gonna get behind the wheel. And something’s going to happen.”

Despite her slipups, Whitey can still complete DWI Court. If she does not, the agreement states she could be looking at up to three and a half years in prison.       

In a statement, Whitey’s defense attorney, Doug Wilber, explained it’s not unusual for people participating in the DWI Court program to relapse:

The Community Custody Program (CCP) is in fact a form of jail custody. Individuals who are on CCP supervision are monitored by jail personnel and MDC has the power to revoke them and put them in physical custody if they do not follow the program requirements.

The fact is that people who have multiple DWI convictions are people with addiction issues who need treatment. Increasing the penalties unfortunately does not cure addiction.

Ms. Whitey continues to participate in the DWI Court program. The DWI Court program is specifically designed to assist people to achieve and maintain long-term sobriety with a comprehensive treatment, counseling and structure. People in the program are by definition dealing with long-term and deep-seated issues, and any person with a long-term addiction is going to have occasional relapses and difficulties. Working through the underlying issues can take time, which is why the program typically takes at least a year to complete.

The purpose of DWI Court and similar programs is to enable someone to function in the community and help them move beyond the addictions and behaviors that lead to criminal charges. It is therefore typically a pre-sentencing program, with the sentence being determined after completion of the program. The program is not for people in custody—participants work the program from home and learn how to prepare for a future of sobriety and dealing with hardships without resorting to alcohol.

A spokesperson for the 2nd Judicial District Court said the DWI Court program has a strong success rate:

The Second Judicial District Court’s Felony Repeat Offender DWI Court program (DWI Court) was first established in 2013. The DWI Court Judges are the Honorable Britt Baca Miller and the Honorable Emeterio L. Rudolfo. Since its inception, the program has graduated 76 individuals and has a 98.68% success rate, meaning that the recidivism rate for graduates is 1.32%. DWI Court is a demanding program that lasts anywhere between 18- to 24-months. The program operates on a post-conviction model, which provides intensive supervision, requires accountability, and focuses long-term treatment. The goal of DWI Court is to promote public safety and reduce recidivism among repeat DWI offenders while providing an alternative to incarceration. DWI Court offers a solution for New Mexico’s unique struggles with felony DWI offenders.