DWI Case Rule Hasn't Worked

By Jeff Proctor
Copyright © 2006 Albuquerque Journal; Journal Staff Writer

At the start of the year, officials hailed a rule change governing pretrial interviews in Metropolitan Court as a chance to slash the court's nagging dismissal problem in drunken-driving cases.
So far, there's no evidence it's working.
The Supreme Court issued the rule in December to address cases that are dismissed because officers didn't show up for pretrial interviews with defense attorneys. About 30 percent of the 7,000 DWI cases filed in Metro Court each year are dismissed.
The rule says that "if a witness interview has not been conducted by the date of trial and the witness is in the court or immediately available, then the court shall order the interview to be conducted at that time and proceed to trial."
Some have interpreted the rule to say: "If the interview isn't done at the time of a trial setting, go do it in the hallway."
Many Metro Court judges want the rule revised, although they aren't saying how.
They say too many cases are still delayed and dockets remain clogged. They also express concern about those last-minute hallway interviews, describing them as studying for an exam at the last minute.
State Supreme Court Chief Justice Richard Bosson says he is aware of the judges' complaints and is disappointed the rule hasn't made a dent in the high dismissal rate at the state's busiest court.
"We've been aware for quite some time now that the dismissal rate has not gone down," Bosson said.
But prosecutors say it's too soon to say whether the rule, which applies to cases filed after Jan. 1, has been effective. Judges, according to the District Attorney's Office, are inconsistent in how they apply the rule.
"I would like to see the rule get a fair application and run its due course," said Deputy District Attorney Gary Cade, who oversees DWI prosecutions in Metro Court. "I'm just not sure six months is sufficient time."
Albuquerque Police Chief Ray Schultz agreed with Cade, saying the rule needs more time.
"Is it going as great as everybody thought it would?" Schultz said. "Maybe not, but we're not far enough along to say. We just need more time."
Ousama Rasheed, an Albuquerque defense attorney who handles DWI cases, said the rule puts too much burden on the defense.
However, Rasheed said judges have "made it functional."
"I think the judges have, generally speaking, been compliant with the rule and observant of the rule without letting it interfere with justice," he said.

Hard to manage
Under the old rule, when pretrial interviews had not been conducted prior to a trial, the case was often dismissed.
Now, when the pretrial interviews occur in the hallway, the judge then often orders a continuance in case the defense needs more time based on the new information.
Chief Metro Judge Judith Nakamura said that, while interviews are being done in the hallway, other cases are put on hold, and that day's court docket comes to a temporary halt.
"I do feel (the rule) has been difficult to manage and has caused some delays," she said. "A lot of people are affected when a case can't go forward: jurors, court staff, law enforcement— everybody ends up with wasted time."
Nakamura also said the idea of doing interviews in the hallway when the case is supposed to be heading to trial has opened the door for "sloppy trial practices."
"It's like studying for the exam on the courthouse steps," Nakamura said. "People are using trial dates to do their interviews. It's very frustrating in a court of our size and volume."
The Metropolitan Court Rules Committee, which was created at the same time the rule was issued, has surveyed judges about the rule.
Nakamura said that some are satisfied but that the majority want the rule changed.
"My honest belief is that the judges are working very hard to make the rule work, but they have decided it needs to be changed," she said.
No one has yet formally proposed specific changes.
Chief Justice Bosson said the Metro Court rules committee will make recommendations for changes to the rule to the Supreme Court in the next month or two. The high court will reevaluate the rule in January.
"This is a very thorny, persistent problem, and we don't want it to go untended," Bosson said. "We are willing to change directions if need be."
When the rule was announced in December, Bosson was optimistic it would cut down on dismissals.
"But the bottom line is, if the rule isn't helping, or even worse, getting in the way, we have to take another look at it," he said.

Inconsistently enforced
According to Cade, his prosecutors still find themselves in a Catch-22 situation despite the new rule because many Metro Court judges won't set a case for trial until the pretrial interviews have been completed.
But prosecutors can't compel a witness to appear until a case is set for trial.
"So we can't compel them to show up for pretrials, and the interviews don't get done before a trial setting," he said. "It's simply another hurdle for us to step over."
Rasheed said the rule has made him more likely to ask for a continuance even before a court setting in order to get the interviews finished.
"And as far as I'm concerned, (the rule) gives me more motivation to get them done as quickly as possible," he said.
But inconsistency in enforcing the rule is a problem, Cade said.
While some judges will order the parties to schedule pretrial interviews at an early court setting, others schedule a trial regardless of whether the interviews have been completed.
That's when the judges order the parties into the hallway to conduct the interviews if they have not been done beforehand.
However, Cade said, no judge is taking the next step and proceeding to trial after the interviews are finished.
Most cases, he said, should be ready to go directly to trial after the hallway interviews are finished— and he'd like to see that happen.
"I think we need to give the rule more of a chance to work— as it was written— and that's the bottom line."
Schultz said he would like to see more uniformity in how the rule is enforced, too.
"We're willing to work with the courts, the defense bar, the District Attorney and the Public Defender," he said. "We'll do our best to make our officers available for pretrial interview whenever it's convenient for everyone to get them done."
Nakamura said the rule is clear in that it allows the court to continue a case if the defense can prove it needs more time to prepare after the pretrial interview is completed.
"When someone is facing potential jail time and the stigma attached to DWI in this state, is it fair to order a quickly conducted interview and then proceed directly to trial?" she said.
But some pretrial interviews last only a short time and consist of officers simply repeating what they wrote in their reports, Cade said. In those instances, the defense wouldn't need additional time to prepare.
Nakamura said she has heard that complaint.
"But I would have to monitor each interview to make sure additional information was not obtained," she said. "In the end, it is not very difficult for defense attorneys to demonstrate that their case has been prejudiced."