Category: DUI/DWI

  • Judge will not reconsider sentence for woman who killed 2 in DWI crash

    SANDOVAL CO., N.M.- Judge Louis McDonald denied a motion by the district attorney’s office to reconsider the three-year sentence for Christie Noriega.

    She received the sentence after the judge expressed concerns about whether the department of corrections could treat Noriega’s liver disease.

    Noriega’s attorney said the back-and-forth about the sentencing has made for a tough week for his client. “She is very relieved that the court stuck with its original decision. She accepts responsibility for what happened and will now begin her prison term,” said attorney Steve Aarons.

    Noriega pleaded guilty to two counts of homicide by vehicle and aggravated DWI.

    Michael Chambellan and Lonnie Escovedo were killed in the crash on I-25 near Algodones.

    Noriega faced up to 30 years in prison for the crimes.

     

    by Hoshua Panas, copyright 2019 by KOB. Reprinted with Permission

  • RESPONSE TO STATE’S MOTION TO RECONSIDER SENTENCE

    THIRTEENTH JUDICIAL DISTRICT COURT

    COUNTY OF SANDOVAL

    STATE OF NEW MEXICO

    STATE OF NEW MEXICO

    Plaintiff,

    v. No. D-1329-CR-201800142

    Chief Judge Louis P. McDonald, Div V

    CHRISTIE NORIEGA,

    Defendant.

    RESPONSE TO STATE’S MOTION TO RECONSIDER SENTENCE

    DEFENDANT submits the following in opposition to the State’s Motion to Reconsider Sentence as filed on 30 January 2019 (“Motion”):

    1. On 1 November 2018 Ben Klein, Ph.D., Clinical Psychologist, provided to the court and counsel of record on behalf of the New Mexico Department of Corrections a nine (9) page Diagnostic Evaluation of defendant. Under medical history on page 4, Dr. Klein reported that defendant “has been diagnosed with a fatty liver” and she has been prescribed loratidine and ranitidine. Because diseased livers cannot eliminate alcohol, and defendant was not diagnosed until after the accident, Dr. Klein thought she did not make impulsive or reckless decisions about her alcohol use” before she drove home. Id. 9.

    2. In the Motion, the prosecutor argues that “Defendant’s non-alcoholic fatty liver disease was not mentioned as a bar to incarceration until the sentence hearing.” Motion at page 1. This “did not allow time for the State’s attorney to contact the Department of Corrections about the availability of treatment for Defendant’s possible health issue.” Id.

    3. One day before the sentence hearing, defense counsel delivered a sentence memorandum to the court and emailed a copy late that evening to the prosecutor. In the letter of transmittal, defense counsel argued: “As a result of her illness, her body did not process the alcohol which she had consumed like someone with a healthy liver. This helps to explain why she seemed sober to her cousin when she left Santa Fe yet had a blood alcohol content of 0.140 hours after the fatal accident.” Counsel thus argued in mitigation, not that a liver disease would bar any imprisonment.

    4. At the sentence hearing on 24 January 2019, defense counsel’s opening remarks regarding the medical condition likewise were in mitigation of the blood alcohol content, not a bar to imprisonment: “Her family did not know, she did not know that she suffers from a non-alcoholic liver disease, which prevented her body from absorbing and eliminating alcohol. This is not an excuse for her choices, but it does help explain what happened.” Transcript, page 4, lines 21-24 (TR-4.21-24).

    5. Defense psychologist Elizabeth Penland, Ph.D., did discuss the medical condition along with her psychological opinions.1 She doubted whether defendant would receive a restricted diet for her liver.2

    6. Thus defense counsel and her expert did not argue that the inability to treat the disease barred incarceration. Given that the court imposed three years of prison, the court did not treat the issue as a complete bar.

    7. The court expressed concerns about whether the Department of Corrections will make necessary accommodations for defendant’s illness. Defense counsel suggested: “we could call her doctor on another date.” TR-19.24-25.3

    8. In answer to the accommodations question, the prosecution weighed against a continuance, stating, “I don’t think they have a choice. There [are] other inmates who are sick and it is not an option. The State is confident that, given the direction, they would do so.” TR-20-10-13. 19.

    9. In stark contrast to the defendant, whose counsel agreed to continue the hearing before pronouncement of sentence to allow defendant to submit a letter from her the treating physician and the prosecution a letter from the department, the prosecutor wanted to go ahead with sentencing:

    THE COURT: What would you propose?

    MS. LOPEZ DOOLING: The State would propose that we go ahead with sentencing. If the Court orders incarceration, certainly we can have someone evaluate her and ensure that any treatment she is required is put in the Judgment and Sentence. If they fail to comply, then that’s another issue that the Court can consider.

    TR-20.24 to TR-21.5 (emphasis added).

    1. Despite moving forward without a letter, the prosecution now submits a belated letter suggesting that defendant was “missed diagnosed” and the department looks forward to accommodating her special dietary and exercise needs. Motion, attachment 1. This is too little, too late.

    MEMORANDUM OF LAW

    1. The New Mexico Constitution states “nor shall any person be twice put in jeopardy for the same offense. NM Const. Art II, § 15; see also US Const. Amend V.

    2. It is a well established principle of New Mexico law that a trial court generally cannot increase a valid sentence once a defendant begins serving that sentence.” State v. Porras, 1999-NMCA-016, 126 N.M. 628 (citations omitted),4 see also United States v. Rosenstreich, 204 F.2d 321 (2nd Cir 1953)(“It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase a sentence of imprisonment, once execution of the sentence has begun”).

    3. The United States Supreme Court agreed long ago:

    If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

    Ex parte Lange, 85 U.S. 163, 168 (1873)(emphasis added).

    1. The New Mexico Supreme Court amended NMRA 5-801 from “Modification” to “Reduction of Sentence” because district courts may reduce but not increase a sentence after it has been imposed. NM Supreme Court Order 14-8300-014.

    2. The prosecution cites one case, and only one case, to support any legal authority to increase a sentence once imposed. Motion at page 2 citing State v. Diaz, 1983-NMSC-090, 100 N.M. 524. In Diaz the defendant made derogatory comments about the court after it suspended his sentence but before the judgment was reduced to writing. “We further determine that no portion of Diaz’ sentence was carried out.” 100 N.M. at 525.

    CONCLUSION

    1. Defendant began serving her sentence immediately after the oral pronouncement, with credit for pre-sentence confinement. Unlike a suspended sentence in Diaz, defendant’s post-sentence incarceration is being carried out and that alone raises the constitutional prohibition against the ordeal of a second hearing at which she could once again face up to thirty years and ninety days of prison were the court to exercise its discretion in a less lenient manner. Given the political pressure brought to bear on this case by parties poorly informed beyond sensational media accounts, a reconsideration would create the appearance of undue political influence.

    2. Alternatively, if the letter does not persuade the court that more time is due, if the reasons for suspending 27 years were more complicated than a medical accommodation, then reconsideration would raise false hopes in the victims’ family members firmly convinced that the court erred, once again dashing hopes that at last their brand of justice will be meted out.

    3. The prosecution could have easily joined in a defense suggestion that the hearing be continued and the parties collect letters like the one attached to its Motion. Instead the prosecution proposed “that we go ahead with sentencing.” Having opted to go forward without its letter, it should not be heard to complain that the sentence was less than expected.

    WHEREFORE defendant requests under the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 the New Mexico Constitution, that the court:

    1. Find that (1) the court is sufficiently informed so that oral argument of counsel will not be necessary or helpful to its decision; (2) the defendant has begun to serve her term of post-sentence confinement; (3) the court has no jurisdiction as a matter of law to increase a sentence under these circumstances; and (4) in any event the new matters would not have persuaded the court to do so; and,

    2. Deny the Motion.

    Stephen D Aarons

    Counsel for Defendant

    2019 Galisteo Street, Suite H1

    Santa Fé NM 87505

    steve@aarons.law

    (505) 984-1100

    Certificate of Service

    On 31 January 2019 I emailed a copy of this pleading to the prosecutor, Amy Lopez Dooling, Assistant 13th Judicial District Attorney, PO Box 1750, Bernalillo NM 87004-1750 alopezdooling@da.state.nm.us (505) 771-7400.

    Stephen D Aarons

    Defense Counsel

    1See e.g. TR-10.9-13 (“Ms. Noriega does have what’s called ‘non-alcoholic fatty liver,’ which interferes with the liver processing and detoxing the pollutants and the toxins that come through the body. I personally do not believe that this was a reliable test of the blood alcohol level.”). The Motion does not contest the medical diagnosis or its effect on blood alcohol content measurements but rather whether the department of corrections is equipped to treat inmates with this disease.

    2TR 12.5-13 (“in the prisons of Colorado and New Mexico, the food that I see the inmates are served is horrible. It’s absolutely horrible. I know Your Honor knows that. They don’t have the food that will keep her alive. Because of her liver disease, it was written – I don’t have her medical records, but it was written that she should have solid nutrition, fresh vegetables and fresh fruits. I think this disease could turn into something more serious, such as liver disease”).

    3See also TR-21.2-17 (“MR. AARONS: Well, all I can offer is the – I can have the doctor write something up. There is discussion here about what is recommended for her. But in terms of the Department of Corrections, it probably would be incumbent on the State to present a letter or a person to say what accommodations they could and would make”).

    4The district court may correct clerical mistakes if the written judgment does not correspond to the oral pronouncement, resulting in an illegal sentence. State v. Stejskal, 2018 NMCA-045 citing NMRA 5-113(B).

  • GOP lawmakers want judge to resign for suspended sentence

    by ELISE KAPLAN / JOURNAL STAFF WRITER

    Republican legislators from Rio Rancho are calling for a judge to resign after he sentenced a drunken driver who killed two people to three years in prison.

    Christie Noriega, 32, pleaded guilty in September to two counts of vehicular homicide and aggravated driving while intoxicated in the deaths of Lonny Escovedo, 28, and Michael Chambellan, 21. She was facing up to 30 years in prison.

    In early March, she was heading southbound on Interstate 25 near Algodones when she crashed into the two men, who were changing a flat tire on Escovedo’s car. The men died at the scene.

    Noriega’s 2-year-old son was in her car but was not injured.

    On Friday, 13th Judicial District Judge Louis McDonald sentenced her to 30 years in prison, but suspended all but three years. Following the three years, Noriega will be on supervised probation for five years and could be ordered to serve her full sentence if she violates probation.

    “This goes beyond unacceptable, is a dereliction of duty and shows a complete lack of judgment,” Rep. Jason Harper, R-Rio Rancho, said in a news release Monday. “It’s decisions like this one that erode confidence in the criminal justice system in New Mexico. Judge McDonald should resign.”

    Rep. Tim Lewis, R-Rio Rancho, and Sen. Craig Brandt, R-Rio Rancho, are joining Harper in the calls for McDonald’s resignation.

    The judge was not immediately available for comment late Monday, and a court administrator said he would be able to provide more information about the sentencing today.

    Noriega’s defense attorney, Steve Aarons, said he thought the call for McDonald’s resignation was “horrible.”

    “I can say that it’s unfortunate that people are judging a very seasoned district court judge without having all of the facts that he had,” Aarons said.

    He said there were many factors that led to Judge McDonald sentencing his client to three years, including recommendations from the New Mexico Corrections Department and Noriega’s lack of a criminal or DWI history.

    Noriega underwent a 60-day diagnostic at the Western New Mexico Correctional Facility in the fall and a psychologist wrote that “it is likely best for all involved that any incarceration that might be felt appropriate to be as short in total time as possible.”

    The diagnostic, according to Aarons, states that Noriega “does not appear to have any significant substance use disorders” and although she did drink alcohol the day she crashed into Chambellan and Escovedo “she did not make impulsive or reckless decisions about her alcohol use on that day.”

    Aarons said Noriega has a nonalcoholic fatty liver disease that prevents her body from absorbing and eliminating alcohol.

    Media reports zeroed in on the disease and highlighted the judge’s questions about whether the corrections department could handle her care.

    Aarons, however, said there was a lot more that went into the sentencing decision.

    “I really think its her lack of history,” he said. “Even the Corrections Department recommended the least amount of time possible.”

    He added that the victims had also parked in an area just a couple of feet from the traveling lane and had a door open.

    Copyright © 2019 Albuquerque Journal (reprinted with permission)

    Click here to see this article as it appeared in the Albuquerque Journal 

  • Drunk driver who killed two men on I-25 receives 3-year sentence

    Drunk driver who killed two men on I-25 receives 3-year sentence

    RIO RANCHO, N.M. – She drove drunk with her 2-year-old son in the car and plowed into two men changing a tire on the side of I-25, killing them. Christie Noriega was facing more than 30 years in prison, but Thursday a judge gave her a huge break of just three years. Both of the men’s families were shocked by the sentence, many of them bolting from the courtroom in disbelief.

    “Nothing will rectify the damage done by her choice to drink and drive. The state has too many families that suffer the consequences of drunk drivers,” Mikey’s mom, Tracy Chambellan, said.

    Both Mikey Chambellan and Lonnie Escovedo’s families spoke at Noriega’s sentencing Thursday.

    The two men were killed last March when Christine Noriega drove drunk along I-25 and plowed into the two men as they were changing a tire on the side of the road near Bernalillo.

    Noriega pled guilty late last year to two counts of vehicular homicide and aggravated DWI, and Thursday she apologized to the men’s families.

    “Please know that I am very, very, very sorry for hurting you and breaking your hearts and for taking away Lonnie and Michael,” Noriega said.

    The families both asked Judge Louis McDonald to give Noriega the full 30 years before he settled on that three-year sentence.

    At one point, the judge said he was concerned about Noriega’s dietary needs in prison. That’s because the mother of five has liver problems.

    The victims’ families feel Noriega has never shown remorse and has always acted like the victim in all this.

    They even pointed out the GoFundMe page Noriega set up last year to help pay for her legal defense.

    Since this is considered a non-violent crime, Noriega will only have to serve half of the three-year sentence.


    Arguments of counsel:

    Several hours before the accident, Christie Noriega drank too much, but in that she was not alone. Her family did not know, she did not know, that she suffers from a nonalcoholic fatty liver disease which prevented her body from absorbing and eliminating alcohol. They thought it safe for her to drive back to Rio Rancho in the early evening, but she never made it home.

    Ms. Noriega pled straight up to the charges, and she accepts responsibility for her actions. As her advocate I often wonder if this accident might have happened even without her drinking. An aggressive driver, someone who triggered more than one 911 call all the way into Albuquerque, tried to pass her on the right. There was a slower moving car on the right so he got behind Ms. Noriega and flashed his lights. She was frightened with her two year old in his car seat, sped up to pass the slower moving traffic and veered into the right lane so the man would stop tailgating and just pass. She was unfamiliar with her eight passenger SUV. It was not as nimble as her old car and it yawed across the fogline. Recently we learned that at least one of the victims had a blood alcohol content of .301, more than twice Ms. Noriega’s .14, nearly four times the legal limit. They too drove drunk and, if sober, they might have driven just a few yards farther after the short span of guardrail and parked safely. The final mistake was the door, wide open. Ms. Noriega clipped it, sending her vehicle into a 180* spin and killing both men.

    Dr. Penland is better able than I to discuss Ms. Noriega’s personal characteristics. But let me add that I cannot remember a DOC psych eval in which zeros are marked down the page, a “very low risk” for future misconduct. This woman has made a difference in raising her five children. As Dr. Klein said in his independent report, “it is likely best for all involved that any incarceration that might be felt appropriate to be as short in total time as possible.” I join in his recommendation, and ask the court to consider some or all of the incarceration to be house arrest. We are only recently seeing this form of sentence but it makes sense in this case. It reminds the defendant, her family and the community that there are consequences. It enables the defendant to get the medical intervention her liver requires. It saves taxpayer money and resources better spent for violent defendants and those unable to curb their addictions. And last but not least, it allows her three year old son to get a hug whenever he needs one.

  • Santa Fe puts DWI vehicle forfeiture program on hold

    SANTA FE, N.M. — The city of Santa Fe today announced that it has put its DWI vehicle forfeiture program on hold.

    According to a news release, the New Mexico Court of Appeals on Dec. 5 ruled that state law preempts Albuquerque’s civil forfeiture ordinance.

    “Although the case was specific to Albuquerque, in a broad ruling the court held that state law was intended to allow only criminal—not civil forfeiture, in any jurisdiction in the state,” the city said in a news release. “In response, we’re putting a moratorium on our DWI Vehicle Forfeiture program. The moratorium will hold until further notice.”

  • Aggravated DUI

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    5-star google

    After being charged for an aggravated DUI, I spent nearly 2 weeks researching and talking to different lawyers about my case. Came across Stephen Aarons and was immediately impressed with his style, methods, and ethics of work. With his easy going and likable attitude not only towards me as a client, but towards the DA, he was able to drop it to a simple deferred. After 1 year of checking off the legal requirements and good behavior, it will be dropped.

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  • #1 DWI Lawyer in Town. 2 Thumbs Up!

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    5-star google

    I could lose my job with a DWI conviction. Asked around hired Aarons. He got my DWI dismissed after one year of probation. The judge threw out the reckless driving to boot. 2 Thumbs Up!

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