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Tiny DWI victim fuels push for tougher laws

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By T.S. Last
Albuquerque Journal

In New Mexico, the Baby Brianna bill toughened child abuse penalties, and Katie’s Law allowed DNA testing for anyone suspected of committing a felony.

Could Dimitri’s Law be next?

On Monday, Gov. Susana Martinez met with Aileen and Zach Smith, whose baby boy, Dimitri, died of injuries suffered in a car accident last June near Las Vegas, N.M., about a minute after being born by emergency Cesarean section at a Santa Fe hospital.

The suspected drunken driver who allegedly caused the accident has at least three prior DWI convictions and another for an open container violation.

According to a New Mexico Department of Transportation study, 60 percent of all DWI deaths in 2011 involved repeat DWI offenders.

“It’s the same drunks, DWI after DWI, and sooner or later they kill someone,” Martinez said after meeting with the Smiths for about a half-hour.

The Smiths, who live in Colorado Springs, had been in contact with the Governor’s Office since the June 10 accident, but Monday was the first time they met with her.

“She said she wanted us to help write New Mexico DWI laws,” Zach Smith said just before the meeting. “I’m a car salesman and she’s a massage therapist. What do we know about writing laws? But we were willing to help.”

Proposing changes
Gov. Martinez greeted the couple in her office, giving Aileen a hug as if they were longtime friends. Then they sat down to discuss the issue. “What do you think of the DWI laws in New Mexico?” the governor asked. The Smiths said they thought the laws were lax and in need of improvement. “What would you like to see done?” Martinez inquired. “I want to see justice for my son,” Aileen said. “We can’t bring him back, nothing can bring him back, but we can help make sure it doesn’t happen to other parents.”

Afterwards, the couple said they felt good about the meeting.

“The governor was very supportive,” Zach said. “We seem to want to take it in the same direction.”

That direction is harsher penalties for DWI offenders. Martinez’s office provided a handout outlining the changes the governor will endorse during the next legislative session.

Many of them are aimed at repeat offenders, including:
• Increasing imprisonment on a fourth conviction from 18 to 30 months.
• Keeping the penalty for a fifth conviction at three years, but increasing from one to two years the portion that cannot be suspended or deferred.
• Increasing the sentence for a sixth conviction from 30 to 42 months, with the portion that cannot be suspended or deferred increased from 18 to 30 months.
• Increasing the sentence for a seventh conviction from three to four years, with the portion that cannot be deferred or suspended increased from two to three years.
• Classifying the eighth and all subsequent convictions as second-degree felonies.

In addition, Martinez is proposing altering habitual offender sentencing to allow judges to use DWI as a previous offense to increase felony sentences.

She also wants to see the law changed to allow the state to seize vehicles of those with previous DWI convictions found to be driving with a suspended or revoked license.

“Part of the sentence for DWI is mandatory, and the rest is discretionary,” Martinez said. “We want to enhance the mandatory part of the sentence.”

Martinez, a former district attorney in Doña Ana County who said she once prosecuted a case involving a man with 21 DWIs, said the deck is currently stacked against the state in favor of the offender in New Mexico courts.

There are things that can be done to level the playing field, she said, such as allowing lab technicians and law enforcement officers to participate in hearings via video-conference and allowing parties to submit certified reports of blood sample analyses in DWI cases without the testimony of an analyst.

Martinez noted that in 2011, there were 1,571 officer no-shows for implied consent hearings in New Mexico.

That represents nearly one-third of all DWI cases.

“The Smiths see how lacking our laws are and want to be an integral part of changing our DWI laws,” Martinez said.

The governor said that she appreciates the Smiths’ willingness to help, and that labeling a proposed bill “Dimitri’s Law” isn’t far-fetched.

“I think it’s important to put a face on something that involves a tragedy, if you want to see change,” she said.

“They want to be helpful, and they are willing to be the face. They want to make sure that Dimitri’s life, because he did live for a short time, was not in vain.”

Call to action
Since Dimitri’s death, the Smiths have been advocating for stricter penalties for DWI offenders in New Mexico.

The first thing they did was start an online petition on www.change.org  .

Nearly 3,000 people had signed the petition as of Monday.

They’ve also received thousands of emails and letters from people sympathetic to their story.

Many of them have lost loved ones themselves in accidents involving drunken drivers.

“It’s amazing the support we’ve got,” Zach said. “People were emailing their stories, and the stories kept coming. People were so happy we were doing something.”

Aileen said she was impressed by a law passed in Massachusetts in 2005, known as “Melanie’s Law,” that starts with a one-year sentence for a first-time offender.

The man accused in the accident that killed the Smiths’ son, Ramon Hernandez of Santa Fe, has spent a total of 11 days in jail for three convictions.

The Smiths say they plan to attend the pre-trial hearing for Hernandez on Jan. 28 in Las Vegas.

By then, the Legislature will be in session and Zach said he wouldn’t mind traveling a little farther down the highway, past the spot where the accident occurred, and speaking with lawmakers.

“I’d be happy to sit down with them,” he said. “It’s easy to look at a piece of paper and say no, but it would be harder for them to look me in the eye and tell me that. I invite them to say no to my face.”