Hernández man acquitted of vehicular homicide in marijuana case

Jeffery Atencio, 27, of Hernández was acquitted vehicular homicide after being accused of being impaired by marijuana in a fatal 2012 accident. Phaedra Haywood/New Mexican file photo

A Rio Arriba County jury on Thursday acquitted a Hernández man of vehicular homicide in a case in which he was accused of driving under the influence of marijuana when he caused a 2012 crash that killed an Edgewood woman.

Prosecutors had charged Jeffery Atencio, 27, with vehicular homicide DWI, which carries a penalty of up to 15 years in prison.

However, after a 2½-day trial in Tierra Amarilla, jurors elected to convict Atencio of the lesser crime of careless driving, a petty misdemeanor that carries a maximum penalty of 90 days in jail.

The state alleged that Atencio was impaired by having used marijuana prior to attempting an illegal U-turn in front of a vehicle carrying Lisa Ross and her husband on U.S. 84/285 north of Hernández on Dec. 5, 2012.

“I’m so happy for my client because he was just a kid when this went down,” public defender Sydney West said after the verdict. “And this has been haunting him for all this time.”

District Attorney Marco Serna said in an email sent by his spokesman that his office will “continue to aggressively prosecute cases of impaired driving to keep our roads safe.”

Atencio’s case was unusual in that the state sought a conviction based on the theory that he was impaired only by marijuana.

West and Chief Public Defender Ben Baur said earlier this week they frequently encounter cases where marijuana is cited as a contributing factor to impairment, but they could not remember a vehicular homicide case in which cannabis was identified as the only intoxicant.

A statement of probable cause filed by the Rio Arriba County Sheriff’s Office said that after the crash, Atencio’s “words were slurred and his mouth was white around the lips.” Another synopsis of the incident said Atencio was unsteady on his feet, shaking and appeared to have forgotten what he was instructed to do during a field sobriety test.

After police found a pipe in his pocket, West said during the trial, Atencio admitted to having smoked marijuana earlier in the day, long before the late afternoon crash.

New Mexico laws prohibit driving while impaired by any substance, but proving a driver was impaired by cannabis isn’t easy. The state has not established a legal standard for presuming impairment based on the concentration in a driver’s blood of the psychoactive component in marijuana.

In Colorado, where recreational marijuana use is legal, that state has set the legal threshold for impairment at 5 nanograms of tetrahydrocannabinol — better known as THC — per milliliter of blood.

Atencio’s THC level was 7 nanograms, according to a toxicology report provided by the Rio Arriba County Sheriff’s Office.

But that evidence was suppressed before trial on the basis that Atencio was misinformed when a Rio Arriba County sheriff’s deputy told him penalties against him would be more serious if he didn’t agree to have his blood drawn.

West said Atencio’s case shows that prosecutors in the future will have to present stronger evidence to get DWI convictions based on marijuana in New Mexico, where use of cannabis for medical purposes is legal.

“I think they are going to have to have a strong test, and they need to have an expert that testifies about what effect marijuana has on driving because there isn’t any really good studies,” West said.

She said the case might have turned out differently if there was evidence that Atencio had been seen driving erratically prior to the crash, but there wasn’t.

“In this case, my client basically didn’t check his mirror a second time,” she said. “The state did not have an expert and did not have evidence to prove the impairment.”

West said the state had an expert witness when the case was presented to a grand jury in 2014, but it did not have one for the trial that started Tuesday.

Atencio also had been charged with possession of marijuana and possession of drug paraphernalia. But West said the judge issued a directed verdict disposing of those charges before the jurors began deliberating, because the state had offered no evidence on those charges.

Rio Arriba County Sheriff’s Office spokesman Randy Sanches said the issue of marijuana-impaired driving is “certainly a hot topic, and we are certainly working with the District Attorney’s Office to find common ground. For now are are working closely with the Los Alamos Police Department who have given us access to their drug recognition experts to help us navigate these uncharted waters.”

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