Troy Tenorio was charged with DWI, reckless driving, failure to render aid and leaving the scene of an accident in October 2020 after he was accused of rear-ending a vehicle on Cerrillos Road — a collision that prompted another crash, sending one man to the hospital.
Tenorio then fled the scene on foot before a Santa Fe police officer caught up with him and determined he’d been drinking before the crash, according to a police report. A breath test revealed his blood-alcohol level to be between 0.2 percent and 0.22 percent, more than twice the level of 0.08, the legal definition for being impaired in New Mexico.
But the First Judicial District Attorney’s Office dismissed the case the same day it was filed, “pending complete discovery” — meaning the prosecutor was still gathering evidence in the case.
More than a year later, the case against Tenorio has not been refiled; it’s likely he won’t go to trial.
The case is one of hundreds “voluntarily dismissed” by local prosecutors since First Judicial District Attorney Mary Carmack-Altwies began implementing a new policy a little over a year ago.
Under a system implemented by the new DA, the office dismisses misdemeanor DWI cases “without prejudice” until prosecutors gather all the evidence, usually from law enforcement. They then refile them.
The policy has put the district attorney at odds with some in the criminal justice system, including judges, monitors and others in law enforcement, who say it places the community at risk — in part, because not all the cases are being refiled and leaves some accused of drunken driving still behind the wheel.
Carmack-Altwies — the top prosecutor for Santa Fe, Rio Arriba and Los Alamos counties — said she devised the policy as a way to improve her office’s conviction rate, adding she won’t be “bullied” into doing things the way they’ve always been done, because the old way wasn’t working.
“We couldn’t keep doing status quo because we were losing 40 percent of our cases,” she said Thursday. “The cops aren’t happy and the judges aren’t happy, but that’s because it’s new and people don’t like new stuff.
“I know it’s controversial,” she said. “But I feel like, given a little more time, this policy will prove effective. We’ve had some pitfalls and mistakes, but it will start to hum and I want you write a story again in a year and look at our conviction rates.”
Santa Fe Community Services Department Director Rachel O’Connor — who oversees monitors who make sure people convicted of DWI are complying with court orders — said she’s worried Carmack-Altwies’ new policy could backfire.
“My concern is that rather than solve the issue of the low conviction rate, we have exacerbated the problem,” O’Connor said. “My second concern is that both the community and the offenders don’t get the benefit of swift and sure consequences to their behavior, and it reinforces the notion that you can get away with drunk driving in Santa Fe County.”
How it began
Carmack-Altwies, who took office Jan. 1, said she started working on the new policy about a year ago. Before her election in 2020, she was an assistant district attorney under her predecessor, Marco Serna.
“It was sort of part of our reorienting the office,” she said. “We were losing a lot — 50 percent at least; maybe even 60 percent — of DWI cases … because of lack of discovery.”
After digging deeper, she said she learned much of the high dismissal rate was the result of magistrates granting defense motions asking the court to exclude evidence or dismiss cases in which her office could not produce key items — such as body camera footage or blood draw results — in time to meet court-imposed deadlines for turning it over to the defense.
Santa Fe Magistrate Court requires prosecutors to provide discovery to defense attorneys 45 days from when a case is filed, which Carmack-Altwies said is not enough time, because she often doesn’t get the evidence from law enforcement agencies within that period.
“That really annoyed me,” Carmack-Altwies said in an October interview.
“As a defense attorney, I loved winning on technicalities,” she added. “But as a prosecutor, I think nothing makes an office look worse than trying to go to court or go to trial when you’re not ready and you know you’re not ready. So we came up with a policy to dismiss these cases until we have the discovery and then refile them. That’s what we are doing, and we are now at … a crazy win percentage once they get refiled.”
She said her conviction rate on the newly filed cases is about 81 percent.
Carmack-Altwies said obtaining footage from police body cameras in time had been a factor in about three-quarters of the cases her office was losing.
“I made the decision to ensure that a DWI case is ready and viable for prosecution before we are held captive by the Santa Fe Magistrate Court’s arbitrary and discretionary practice of a 45-day discovery deadline,” she wrote in an email.
The district attorney said she tried to discuss the issue with magistrate judges David Segura and John Rysanek — who have the discretion to set discovery deadlines — but after agreeing it would make sense to pull police and public defenders into the conversation, magistrate court judges canceled a follow-up meeting.
Segura, who confirmed the judges canceled the meeting with the DA and others, declined to comment on the new policy. But he said the discovery deadline isn’t new and has been in place since 2016.
That’s true, Carmack-Altwies said, but she said the judges in Santa Fe Magistrate Court are inflexible compared to others when it comes to extending the discovery deadlines to accommodate delays in obtaining evidence — even when they are beyond the District Attorney’s Office’s control.
She said she consulted with the state Attorney General’s Office about the legality of dismissing the cases to buy more time to gather evidence with the prospect of refiling them later.
“They gave us the green light and said, ‘That’s one way to deal with it,’ ” she said.
The new approach has received differing responses from the three law enforcement agencies whose officers file DWI cases in Santa Fe’s Magistrate Court.
“I feel this is probably the best way we can do it with the current [discovery] expectations,” Santa Fe Police Department Deputy Chief Ben Valdez said in a phone interview. “We have faith in the District Attorney’s Office that they are doing their best to make sure things don’t fall the through the cracks. We don’t take any offense to this.
“Some of these deadlines are very stringent and tough,” Valdez said. “To get discovery turned around in 45 days is pretty challenging. That’s not a lot of time.”
Santa Fe police try to meet discovery deadlines, Valdez said, “but things have changed and evolved over the years, which has made it tougher.”
He said aging systems sometimes required staff to spend hours looking for the video clips taken from each of multiple officers who responded to a scene.
Valdez said the department recently started using new software for cataloging digital evidence, including body camera footage, which he expects to expedite the process. But he added the time is right for a conversation within the system — one that would include the state Supreme Court and Administrative Office of the Courts — about what’s doable.
“I would like to see realistic expectations regarding what the turnaround for discovery should be [and what] would work best for everyone,” he said.
A state police spokesman wrote in an email the agency isn’t aware of a systemic problem regarding discovery in the First Judicial District.
“We are in communication with the First Judicial District Attorney’s Office to determine if there is indeed an issue,” Lt. Mark Soriano wrote in an email.
But Santa Fe County Sheriff Adan Mendoza said in a phone interview Tuesday he was concerned when he learned of the new policy a few months ago.
“And it’s still concerning to me,” he said, though he added his research shows sheriff’s deputies were meeting discovery deadlines most of the time.
“We weren’t perfect,” he said. “But the majority of our deadlines for discovery were being met.”
Mendoza said he doesn’t understand why cases would be dismissed if deputies are meeting a majority of the deadlines.
“I could understand if we weren’t,” he said. “But my understanding is every DWI case is being dismissed and not every DWI case has a discovery deadline issue, at least from my agency.”
Mendoza said he doesn’t want his deputies’ work going to waste.
“As law enforcement, we are attempting to enforce DWI and get people that are drinking and driving off the streets, and there is a lot of work a lot of resources that go into every DWI arrest,” he said.
“It’s just not fair to have these cases dismissed, and it’s a public safety issue. Some of these people may still be drinking and driving.”
Mendoza said Carmack-Altwies has assured him viable DWI cases dismissed to avoid violating discovery deadlines are being refiled.
“I’m glad that’s happening,” he said. “But I’m not sure the whole problem has been resolved.”
Carmack-Altwies acknowledged her new approach has been “an adjustment” for law enforcement.
“I’ve met with the sheriff, and he was not terribly happy about it because their cases were getting dismissed right away,” she said. “But … I was able to show him that the first few months it was a little bit rocky, but now we are refiling every single case, unless there is something wrong with the case.”
Lost in the shuffle?
Magistrate Judge Segura provided to The New Mexican a spreadsheet showing about 112 of the 533 DWI cases dismissed by the District Attorney’s Office since August 2020 have been refiled.
He pointed to data collected by his office, showing that while he sentenced about 79 people in DWI cases in between April and August 2020 — before the new policy went into effect — he only sentenced 13 people in DWI cases in the 15 months after the policy was used.
Carmack-Altwies’ statistics are a little different. She said she began counting when her office started implementing the new policy in October 2020, not August. She estimated her office has dismissed about 410 cases and refiled about 105. She said 305 cases still are being screened for viability.
The New Mexican surveyed 20 different DWI cases dismissed in October 2020. They revealed three had been refiled as of Thursday, and those were thrown out on challenges to evidence.
Of those 20 cases, Carmack-Altwies said, 14 were missing discovery, so her office declined to prosecute. One had insufficient evidence, and one was refiled and dismissed because, the district attorney said, Segura is still holding her office to the 45-day discovery rule.
“We don’t feel like we are getting treated fairly in Magistrate Court when it comes to DWI refiles,” she said.
Carmack-Altwies said two of the cases can and should have been refiled by her office, and will be.
But she acknowledged her office may have missed refiling some of the cases dismissed during October 2020, the first month the policy went into effect.
In the Troy Tenorio case, Carmack-Altwies said her office still hasn’t received the crash report or video taken from the officer’s body camera.
“Thus, we cannot refile,” she said.
The district attorney said she’s assigned several attorneys to tackle the task of getting the 300 cases refiled in a more timely manner. She also noted that while the policy went into effect in October 2020, she didn’t begin calling the shots on the new practices until November and December of that year.
“In October, we were still going back and forth,” she said. “Hold me accountable from November .”
The New Mexican sampled 20 cases dismissed in November 2020 and found seven of the 20 had been refiled. Several of the cases involved people who had previous DWIs and at least one of the defendants was arrested on a new DWI charge after her case was dismissed.
Carmack-Altwies said once her office vets the dismissed cases, she’ll refile about half in Magistrate Court and the other half in District Court.
Judges and police aren’t the only criminal justice partners scrutinizing the district attorney’s new policy.
New Mexico Criminal Defense Lawyers President elect Jennifer Burrill, a public defender in Santa Fe, said the solution comes with its own set of problems — not the least of which is that it puts people who are accused of DWI at a disadvantage when it comes to building a defense.
She said some of cases aren’t being refiled until six months or more after the date of the incident, making it more difficult to locate witnesses and leaving defendants in limbo.
“The fact that the communication has broken down between police and district attorney is now punishing the defendant,” she said. ”It’s very harmful to the defendant to have such a significant pretrial delay.”
Burrill said she expects challenges to the cases that have been dismissed and refiled to get around the current rules.
“It will be interesting to see how the different courts address that,” she said. “I have filed a few challenges ... and we won all of them.”
Mothers Against Drunk Driving New Mexico program director Nina Sharma said in a phone interview Thursday she knows community members have concerns about the policy and the organization shares them. But she added she believes it’s too soon to pass judgement.
“We want to make sure we are all in this together,” she said. “From our conversation, it seems like [the District Attorney] has dedicated staff who will be refiling,” Sharma said. “We are waiting to see if those cases are going to be refiled and successfully prosecuted. That will be the measure of whether this policy is successful or not.”