GALLUP, NM (KRQE) – November 2017: A traffic stop east of Gallup. Lorena Tso has difficulty standing, fails field sobriety tests, blows a .16 on the Breathalyzer, and was arrested for her third DWI, aggravated.
If convicted, Tso faced a mandatory 30 days in jail, driver’s license revocation, an ignition interlock, and substance abuse treatment. But instead of prosecuting Tso’s case, the McKinley County District Attorney dropped it.
When Sheriff’s Deputies stopped Darin Deschiney north of Gallup, he had slurred speech, bloodshot eyes, an open bottle of vodka, prior DWI’s and a revoked driver’s license. After refusing a breathalyzer test, Deschiney was arrested for aggravated DWI, third offense. Eight months later, the District Attorney inexplicably dropped all charges.
It’s the same story for Reda Benally charged with her second DWI: dismissed by DA.
Derrick Watchman, aggravated second DWI: dismissed by DA.
Howard Joe, aggravated DWI: dismissed by DA
Shannon Yazzie, third DWI: dismissed by DA.
The list goes on and on. A KRQE News 13 investigation finds, over a three year period, the McKinley County District Attorney routinely dropped scores of drunk driving cases for defendants charged with everything from DWI first offense to aggravated DWI third offense. The wholesale dismissal of drunk driving cases is in open defiance of the State Legislature’s mandate to crack down on drunk driving.
“It’s unbelievable,” says State Senator George Munoz, whose district includes McKinley County. “The public should be outraged in Gallup and McKinley County for what’s happening.”
“Quite frankly it’s appalling,” says New Mexico’s Transportation Cabinet Secretary Mike Sandoval. “It’s sending a message that you will not be held accountable for your actions. It’s sending a message that you can get away with it.”
Because McKinley County leads the state in per capita alcohol-related injuries and fatalities, police agencies there have stepped up enforcement. The problem in McKinley County is not that drunk drivers aren’t being caught; it’s that record numbers aren’t being prosecuted.
The first red flag came with the release of a Mothers Against Drunk Driving (MADD) survey showing Gallup’s District Attorney was dismissing a whopping 71% of McKinley County’s DWI cases. KRQE News 13’s investigation found more than 100 routine drunk driving cases simply weren’t prosecuted.
It was a practice that began in 2014 under the administration of elected Gallup District Attorney Karl Gillson, in which numerous drunk driving cases were simply discarded by the DA’s prosecutors.
Consider the case of Kenneth Bitsie. Bitsie was charged with his second DWI, open container, expired registration and no insurance. However, 11 months after Bitsie was arrested, Gallup prosecutors dismissed all the charges, giving the accused drunk driver a ‘free pass’ to avoid mandatory penalties including jail time, an ignition interlock, and a treatment program.
The Gallup DA gave Thaine Begay a ‘free ride’ by dismissing Begay’s 2016 drunk driving case. Begay would later be arrested three more times on DWI related charges.
Ten months after Karen Smith was arrested in Gallup on her third DWI, prosecutors dropped the case. Two years later, Smith was arrested in Albuquerque for aggravated DWI, leaving the scene of an accident, driving while license revoked, no insurance, and Possession of an Open Container.
Betrina Grey’s April 2016 DWI arrest also wasn’t prosecuted by the Gallup District Attorney. Just six months after the case was dropped, Betrina Grey was charged with vehicular homicide after a passenger in her car was killed in a DWI related crash.
Gallup’s current District Attorney Paula Pakalla says the drunk driving dismissals are “absolutely not” acceptable. Pakalla replaced Karl Gillson, who resigned for health reasons in late 2017.
“It began, and it snowballed… It got out of hand,” Gallup DA Pakalla says. “I don’t know how it all happened… I tried to stop it, and I think it stopped,” Pakalla told KRQE News 13.
As District Attorney, Pakalla says she does have the power to stop the practice which began under her predecessor. “Do I have the power to micromanage every case and enforce it and fire people? Yes. Do I have the time to do that? Not all the time,” Pakalla says.
Here’s how the dismissals worked: Prosecutors agreed to drop DWI charges in exchange for a defendant’s verbal promise to attend DWI School, a Victim’s Impact Panel, and a few days Community Service. It’s sort of like a plea bargain, although the Gallup DA calls these dismissals ‘Hold Open Agreements.’ By acknowledging this deal, the accused drunk driver avoids jail time, fines, an ignition interlock, court-ordered treatment programs, and a DWI conviction on their driving record.
Even though the District Attorney refers to the DWI pacts as ‘agreements’ Pakalla admits there is no written documentation of the pacts. She says the ‘Hold Open Agreements’ referred to by the DA are just verbal promises. The District Attorney also says there is no written policy governing ‘Hold Open Agreements.’
The Gallup DA’s office has been dismissing drunk driving cases left and right based on informal verbal promises that have no legal standing and are not enforceable.
Pakalla suggests there may be another reason some drunk driving arrests weren’t being prosecuted in McKinley County: too many cases, not enough prosecutors.
“To be candid with you, I don’t have attorneys beating down the door to come here to work. It’s hard in the rural areas to get attorneys to come and work and to stay,” Pakalla says. “We have to compete with the Navajo Nation. They pay a lot more than we do for their attorneys,” according to Pakalla.
KRQE News 13’s investigation finds, since 2015, Gallup prosecutors have dropped 122 drunk driving cases.
“It’s a huge disappointment,” says retired career prosecutor Steve Suttle. Suttle was involved in the 1992 reform of New Mexico’s drunk driving laws. “I think the people of McKinley County expect more, and they should probably have more,” Suttle says.
An accused drunk driver whose case is dismissed, “is literally escaping the consequences intended by the legislature and therefore by the people of New Mexico,” Suttle says. “That’s not the way most DA offices would handle this,” Suttle tells KRQE News 13.
“The carnage that DWI does to people in our state and the fact that people have been getting away with it with no consequences… is very scary,” says Transportation Cabinet Secretary Mike Sandoval.
District Attorney Paula Pakalla’s pledge to the people of McKinley County as to so-called ‘Hold Open Agreements?’ “It just can’t happen anymore. It’s done,” Pakalla says.