An online check of New Mexico court records this morning reveals that one of two drivers involved in a June 2018 crash that left someone walking nearby dead was arraigned last week on a charge of Homicide by Vehicle (Reckless Driving).

We wrote in January on the lingering legal outcomes resulting from the crash of Valerie Nieto and Alyssa Cross, an incident that left Carlos Medrano-Olivas dead. Ms. Nieto was found to be intoxicated at the time, while eyewitness and follow-up investigatory research of the crime scene and vehicle recorder found Ms. Cross to be speeding as she ran the red light at Montgomery Blvd. and I-25 Pan American Frontage Road.

The complex case first legally focused on Ms. Nieto, who was charged in the days following the incident, but those charges were first changed and eventually dropped in subsequent weeks. A check of court records now shows Ms. Nieto has a preliminary hearing on a charge of DWI scheduled for this morning.

Legal focus on who most directly led to Mr. Medrano-Olivas’ death has now moved to Ms. Cross, who had not been previously charged at all regarding the incident. Arraigned last Monday, she is to be tried in the courtroom of District Court Judge Cindy Leos.

A brief look at New Mexico law regarding penalties around “Homicide by Vehicle” and “Reckless Driving” are perhaps helpful in illustrating why Ms. Nieto alleged DWI was focused upon first over Ms. Cross’ research-confirmed speeding and eyewitness-reported running a red light. The law itself, arguably to a fault, focuses on penalizing the impaired over speeders/red light runners who are not impaired.

2006 New Mexico Statutes – 66-8-101 — Homicide by vehicle; great bodily harm by vehicle.

66-8-101. Homicide by vehicle; great bodily harm by vehicle.

A.     Homicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.

B.     Great bodily harm by vehicle is the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle.

C.     A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug or while violating Section 66-8-113 NMSA 1978 is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978, provided that violation of speeding laws as set forth in the Motor Vehicle Code [ 66-1-1, except 66-7-102.1 NMSA 1978] shall not per se be a basis for violation of Section 66-8-113 NMSA 1978.

D.     A person who commits homicide by vehicle or great bodily harm by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, as provided in Subsection C of this section, and who has incurred a prior DWI conviction within ten years of the occurrence for which he is being sentenced under this section shall have his basic sentence increased by four years for each prior DWI conviction.

E.     For the purposes of this section, “prior DWI conviction” means:

(1)     a prior conviction under Section 66-8-102 NMSA 1978; or

(2)     a prior conviction in New Mexico or any other jurisdiction, territory or possession of the United States, including a tribal jurisdiction, when the criminal act is driving under the influence of alcohol or drugs.

F.     A person who willfully operates a motor vehicle in violation of Subsection C of Section 30-22-1 NMSA 1978 and directly or indirectly causes the death of or great bodily harm to a human being is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

Looking more closely at bolded Section C above, third degree felonies in New Mexico have a sentencing guideline of three years imprisonment and fine of $5,000. Those committing the same crime without impairment are culpable only for “Reckless Driving” which has the following penalties:

2006 New Mexico Statutes – 66-8-113 — Reckless driving.

66-8-113. Reckless driving.

A.     Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving.

B.     Every person convicted of reckless driving shall be punished, notwithstanding the provisions of Section 31-18-13NMSA 1978, upon a first conviction by imprisonment for not less than five days nor more than ninety days, or by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100), or both and on a second or subsequent conviction by imprisonment for not less than ten days nor more than six months, or by a fine of not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000), or both.   

C.     Upon conviction of violation of this section, the director may suspend the license or permit to drive and any nonresident operating privilege for not to exceed ninety days.

Making a long legal story short, killing somebody while driving a vehicle impaired is legally treated as willful endangerment, but killing somebody while driving a vehicle without impairment is overwhelmingly treated legally as an “accident.” Sure, the driver has been “reckless,” but 5-90 days in jail, fine between $25-100, and maybe suspending the driver’s license for 90 days for killing somebody…well, accidents happen.

And those “accidents” are viewed to have happened whether the driver is speeding, running a red light, both, or anything else as long as they aren’t impaired. Strengthening the laughably inadequate penalties for “Reckless Driving” leading to death is just one of myriad legal indicators of how American society has created the legal preeminence of drivers vis-a-vis other roadway users over the past century or so.

Readers wishing to explore this ultimately gruesome reality both academically and entertainingly are encouraged to read Fighting Traffic by Peter D. Norton.  It ain’t always been this way, but it sure as hell is like this now.