Both Linda Diaz and the pedestrian she allegedly struck and killed last spring while driving on U.S. 84/285 had been drinking in the hours prior to the crash, according to court documents.

Now, in a new round of motions filed in federal District Court in Albuquerque last week and this week, lawyers in the case are arguing about whether evidence of her beer drinking and his intoxication should be presented to jurors during her trial, scheduled for January.

Diaz — lieutenant governor of Pojoaque Pueblo — allegedly was at the wheel of a car that struck Phillip Espinosa as he walked along the side of the highway in the early morning hours of April 4. Espinosa's body wasn't found until the next day about noon, when a man walking his dog discovered it in or near a clump of bushes near the road. An autopsy determined he'd been lying there five or six hours before he was found.

Diaz called Pojoaque tribal police April 5 in the late morning — nearly 30 hours after the crash — and told an officer she had "done something very bad" and was "very worried," according to court documents. Police recovered pieces of her car at the crash scene and found human hairs in her windshield that were from Espinosa.

Diaz has pleaded not guilty to one felony count of leaving the scene of a fatal accident and failing to render aid.

An investigation by a Bureau of Indian Affairs agent found that Diaz, 52, had met friends at the Buffalo Thunder Casino in Pojoaque about 10:30 p.m. the night of the crash and ordered a beer, according to a motion filed Oct. 26 by prosecutor Jack Burkhead. After about a half-hour, Diaz and three friends drove in her car to Club Tropicana in Española, the motion says.

"She stayed at the bar until closing time and witnesses will testify that she drank more beer while at the bar," Burkhead's motion states. "After the bar closed, she and her three friends drove back to Pojoaque Pueblo, stopping first to pick up six additional beers."

The group ended up at a Pojoaque man's home, where Diaz stayed until about 4:30 a.m., the motion says.

"The government anticipates that one or more witnesses will testify that the defendant had one additional beer at (the) home prior to leaving the residence with her sister," the motion states. "The defendant dropped off her sister and proceeded to drive home."

Burkhead's motion says he plans to introduce that evidence in trial because it speaks to Diaz's motive for leaving the scene where Espinosa was struck.

"Surely it is more probable that a driver who has alcohol on her breath (or, for that matter, thinks she has alcohol on her breath) will flee a scene after striking and killing a pedestrian than a driver who did not drink," the motion says. "This is particularly true in New Mexico where the drumbeat of 'you drink, you drive, you lose' is a media staple. As the Lieutenant Governor of the Pojoaque Pueblo, the defendant, perhaps, had more to lose than many in similar predicaments."

Samuel Winder, Diaz's lawyer, argued in a motion filed Oct. 28 that the evidence of Diaz's drinking is irrelevant, prejudicial to Diaz and inadmissible under federal rules of evidence. However, if the judge decides to allow the evidence of her drinking, "it would be appropriate for the introduction of evidence that Mr. Espinoza was drinking at a casino in Española several hours before Mr. Espinoza was walking (on) U.S. Highway 84/285," Winder's motion states.

Espinosa's name is spelled "Espinoza" in some court documents.

Further, Winder wrote that Espinosa left the casino "to go 'to a party in the Pojoaque area' where he 'may have been drunk.' " Espinosa stayed at the party until 3 or 4 a.m. Espinosa's blood alcohol content at the time of his death was .079, according to autopsy results quoted in another motion filed Monday by Winder. In a separate motion filed Oct. 23, Winder pointed out that Espinosa was "wearing black pants and a black leather jacket."

Burkhead filed a motion earlier this month that said blood evidence at the scene suggests someone moved Espinosa's body after the crash, and that he suspected Diaz. That fact alone would cause problems for Diaz's supposed defense that she thought she hit an animal or a rock, Burkhead wrote.

But in the Oct. 23 motion, Winder said the allegation was not supported by any evidence in the case.

"There is nothing to support the untenable claim that Defendant Diaz performed the callous acts suggested by the Government," Winder wrote. "Moreover, as will be set forth at trial, the Government has no evidence to support this bald claim."

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.