Prosecutors have filed an amended complaint against Sen. Richard Martinez, modifying the aggravated DWI charge against him to include an alternative charge of aggravated DWI resulting in “bodily injury.”
Española police charged Martinez with aggravated DWI and reckless driving after his car rear-ended a Jeep at an Española intersection June 28. The longtime Northern New Mexico politician and the occupants of the Jeep — Johnny Sisneros and Gerrie Sisneros — were taken to the hospital after the incident.
A state prosecutor wrote Monday the state revised the charges after recently reviewing one of the victims’ medical records.
The alternative charge could be a way for prosecutors to strengthen their case of aggravated DWI against Martinez. The enhanced charge can be leveled if the suspect has a breath-alcohol level of 0.16 or above, if they injured someone while driving under the influence or if a breath-alcohol test is refused.
The Española police officer who arrested Martinez wrote in his report that the senator failed field sobriety tests at the scene and refused to take the breath-alcohol test — automatically elevating to aggravated DWI from what would have been a simple DWI charge.
Both first-time DWI and first-time aggravated DWI are misdemeanors that carry a maximum sentence of 90 days in jail.
But someone convicted of aggravated DWI must serve a mandatory two days in jail while those convicted of a simple DWI could receive a sentence that does not call for jail time, said Jennifer Burrill, a public defender who is not working the case and emphasized she was commenting only on the law. Brill is also vice president New Mexico Criminal Defense Lawyers Association.
Burrill said adding the bodily injury allegation could increase the state’s chances of convicting Martinez of aggravated DWI if his refusal to take the breath test is deemed invalid for some reason.
Martinez’s lawyer claims the state Attorney General’s Office, which filed the amended complaint Friday, is trying to retaliate against the defendant for requesting a jury trial. The case was scheduled to be decided during a bench trial next month.
“The filing of the amended criminal information appears to be wholly vindictive and retaliatory by the Attorney General’s Office and in response to Mr. Martinez exercising his Constitutional right to trial,” Martinez attorney David Foster wrote in a motion seeking to have the modified criminal information dismissed.
“This especially true as the State filed the Amended Criminal Information after learning that Mr. Martinez sought a jury trial in this matter,” Foster wrote.
Assistant Attorney General Ashley Schweizer said Monday — in her response to Martinez’s motion to dismiss the amended information — that the state revised the charges after viewing Johnny Sisneros’ medical records earlier this month.
“The only amendment that the State has offered in this case is an additional theory to support Aggravated DWI …,” Schweizer wrote in her response. “The offense and potential penalties are still the same as are the operative facts and circumstances.”
Martinez appeared at a recent court hearing on a knee-scooter and told a reporter he broke three toes on his right foot in the crash.
Attorney General’s Office spokesman Matt Baca did not respond Monday to a request for an update on the Sisneroses’ condition. Foster also did not respond to messages seeking comment.