The fact that the pedestrian struck and killed by Pojoaque's lieutenant governor last spring may have been drinking in the hours before his death is "wholly irrelevant," a federal judge ruled this week.

Therefore, Linda Diaz won't be able to introduce any such evidence during her trial on a felony charge of leaving the scene of an accident and failing to render aid in connection with the death of Phillip Espinosa, 31, of Chimayó, according to the ruling by U.S. District Judge Leroy Hansen.

"It is no defense to the crime that the victim had been drinking or could have been legally intoxicated at the time of death," Hansen wrote in an order forbidding evidence of Phillip Espinosa's alleged intoxication. "Neither the victim's consumption of alcohol nor his level of intoxication at the time of death changes the obligation of a motorist who was involved in an accident resulting in injury or death, to stop at the scene and render reasonable assistance."

Diaz's lawyer, Sam Winder, has erroneously said that Espinosa was "legally intoxicated" at the time of his death, according to a motion filed by prosecutor Jack Burkhead.

In fact, Burkhead wrote, an analysis of Espinosa's blood shows that he had "stopped drinking for some period of time prior to being struck and killed." That supposition is based on the opinion of a medical examiner who looked at the amount of alcohol in Espinosa's blood after he was killed and found it to be less than .08, which would be the legal limit if Espinosa had been driving instead of walking.

Furthermore, "a finding of legal intoxication requires both that the person be driving and that" he or she have a blood or breath alcohol content of .08 or more, the motion says.

The judge said that he will rule later on whether evidence of Diaz's drinking in the hours before she got behind the wheel of her car in the early-morning hours of April 4 can be admitted at trial.

Diaz, 52, drank beer at the Buffalo Thunder Casino bar in Española and at an apartment in Pojoaque prior to the crash, according to previous motions filed by Burkhead. She stayed at the apartment until about 4:30 a.m., then drove home, according to the motions.

Espinosa had been at a party in Pojoaque until 3 or 4 a.m. the night he was killed and "may have been drunk," according to a motion filed by Diaz's lawyer. He was walking alongside U.S. 84/285 when he was struck.

An autopsy determined he'd been lying near the road for five or six hours before his body was found by a man walking his dog about noon on April 4.

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

Diaz has pleaded not guilty to the charge of leaving the scene of a fatal accident.

Burkhead also has said in motions that blood evidence at the crash scene suggests that Espinosa's body was moved after he was struck, and that he suspects Diaz moved it. In the motion filed before Hansen's order, Burkhead said that a qualified medical examiner will testify that Espinosa's head was crushed in the collision and that he died almost immediately. Therefore, Espinosa couldn't have moved his own body, Burkhead's motion states.

Winder has called the allegation that Diaz moved the body "callous" and said there is no evidence to suggest such a thing occurred.

Diaz's trial is scheduled for January.

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