State Taxation and Revenue Department Secretary Rick Homans is upset that the drivers accused in two high-profile vehicular-homicide cases still have valid driver's licenses.

Scott Owens and Carlos Fierro still have licenses to drive, according to the department, which oversees the Motor Vehicle Division.

"By law enforcement taking the action they did on the side of the road, they prevented MVD from using the most powerful tool it has, which is license revocation," Homans said. That action was a decision to not revoke the licenses, Homans said Wednesday.

Under New Mexico law, a driver who refuses a breath alcohol test or who blows above the .08 legal limit automatically loses their driver's license for a year. But many offenders request a hearing to appeal that revocation.

And law enforcement officials Wednesday said those administrative hearings, which must happen within 90 days before an MVD hearing officer, could jeopardize felony cases.

District Attorney Angela "Spence" Pacheco said law enforcement officers are geared toward criminal proceedings and often are leery of administrative hearings because police officers have to present evidence and get grilled by defense lawyers before they are ready.

Homans disagrees. "The purpose of the Implied Consent Act is to give law enforcement and MVD a powerful tool to revoke the driver's licenses of drunk drivers and get them off the street," Homans said. "In both these cases, the police and the sheriff decided not to confiscate these licenses and issue a notice of revocation, which is required for MVD to actually revoke the license. As a result, both of these individuals have valid driver's licenses, and I find that very disturbing."

While Fierro was released on bond, Owens is in jail awaiting trial. Wheeler said most vehicular-homicide defendants are not able to make bond, Santa Fe Police Chief Aric Wheeler said Wednesday.

Owens 27, is charged with driving in the wrong lane of Old Las Vegas Highway in the early morning hours of June 28 and crashing into a car carrying five teens. The four passengers in the car were killed instantly, while the driver was treated and eventually released from the hospital.

Fierro faces charges of vehicular homicide and causing a fatal accident in the case 10 months ago in which 46-year-old William Tenorio was killed. He is on trial this week.

Santa Fe County Sheriff Greg Solano, whose office handled the Owens case, and Wheeler, whose department handled the Fierro investigation, said they followed procedures that have been in place for as long as anyone can remember. Deputy District Attorney Doug Couleur agreed that it's been the practice of law enforcement for years not to file for license revocation in vehicular-homicide cases.

Solano and Wheeler said revocation papers weren't filed in their respective cases partly because of concerns about having to provide evidence at a revocation hearing on criminal investigations that aren't complete. "It would have forced us to show up with an incomplete case," Solano said.

While the defendant is allowed to have a lawyer present, police officers are not. And the district attorney, who is prosecuting the criminal case, is not part of the MVD hearing.

In an article on the Web site DrunkDrivingLawyers.com, Albuquerque lawyer Parish Collins advises DWI defendants to go to revocation hearings. "Your attorney will have a nice visit with the police officers and a very good opportunity to interview them in preparation for your defense in criminal court."

Part of the problem, Wheeler said, is that some officers believe revocations can only be filed when DWI charges are filed. Neither Fierro nor Owens was charged with DWI.

When a license is revoked administratively, a person can't drive for one year — unless the offender agrees to install an ignition interlock. Wheeler and Solano pointed out that if someone is convicted of vehicular homicide, the offender is prohibited from driving forever.

In a memo to law enforcement officials, Homans said, "We understand, from talking with law enforcement agencies in Santa Fe, that some law enforcement agencies statewide have routinely skipped the revocation process with MVD if the driver is charged with vehicular homicide, and not DWI. In fact, from what we heard, some law enforcement officials believe the notice of revocation can only be issued when an individual is arrested for DWI. This is not true."

Homans said he doesn't plan to seek any legislative changes to address the issue. "I think the law is very clear on what is supposed to be done in this case. I think it's clear the police department and the sheriff's office decided not to follow it."

At this point, he said, there is nothing his office can do.

"There is nothing MVD can do about this situation at this point. The (notice of revocation) needed to be issued immediately upon refusal of the breath test, or when the individual blew over the legal limit."

Contact Kate Nash at 986-3036 or knash@sfnewmexican.com. Contact Steve Terrell at 986-3037 or sterrell@sfnewmexican.com.