Albuquerque Cops Allegedly Got Paid To Make DWI Cases Disappear

The scandal has resulted in the dismissal of some 200 DWI cases, an internal probe, and an FBI investigation.

On a Sunday evening last June, Albuquerque police officer Joshua Montaño pulled Carlos Smith over for speeding near the intersection of Central Avenue and Interstate 21. Smith was contrite. "I apologize," he says in a body camera video. "I was just trying to get over in the lane and get on the freeway. My bad."

Smith got more than a speeding ticket. He was arrested for driving while intoxicated (DWI), even though two breath tests indicated that his blood alcohol concentration was below 0.08 percent, the per se cutoff for that charge. Then things got weirder.

The story of what happened next is just one facet of an ongoing corruption scandal at the Albuquerque Police Department (APD). Allegations that cops helped DWI defendants avoid conviction in exchange for payoffs have resulted in the dismissal of some 200 DWI cases, an internal probe, administrative leave for Montaño and four other officers, an FBI investigation, and the execution of search warrants at cops' homes and the office of a local defense attorney.

Montaño, who had removed Smith's Apple Watch and a bracelet during the June 25 traffic stop, left a voicemail message for Smith the next day. "Some of your jewelry was missing from the property from Sunday evening," the officer says in a recording that Smith gave KRQE, the CBS affiliate in Albuquerque. "It looks like the PTC [Prisoner Transport Center] officers didn't put that in your bag, but I have it."

In a subsequent telephone conversation, Smith told KRQE, Montaño said he could retrieve his bracelet from Thomas Clear, an Albuquerque attorney who specializes in DWI cases. During the last six years, KRQE found, Montaño "was named as the officer in at least 36 cases" in which the defendants were represented by Clear, and "nearly 90% of those cases ended in dismissals."

Concerned about Montaño's unusual instructions, Smith did as he was told but recorded the conversation he had with Clear's paralegal, Rick Mendez, at the attorney's office. If Smith decided to hire Clear, Mendez said, "we charge $8,500," and "you could do it in payments." He conceded that "we're not the cheapest." But if Smith settled for a public defender, Mendez warned, the outcome of his case would be a "roll of the dice."

Smith wanted to know what he could expect in exchange for Clear's steep fee. "With you representing me, that would guarantee that this doesn't go on my record?" he asked. "Yes," Mendez replied.

That promise was a red flag, Leon Howard, the deputy director of the American Civil Liberties Union of New Mexico, told KRQE. "That violates our professional code of conduct," he said. "You do not guarantee outcomes."

Howard is planning a lawsuit that he said would shed light on the corruption that the APD and the FBI are investigating. "It's shocking and quite frankly disgusting," he said. "This scheme perpetuates a narrative that outcomes can be bought and sold. It undermines our entire justice system."

Smith took a three-part field sobriety test prior to his arrest, and Montaño ostensibly was unsatisfied by the results. But it's not clear why. While the horizontal gaze nystagmus test (which involves visually tracking a moving object) is a reliable measure of intoxication, performance on the walk-and-turn test and the one-leg stand test varies widely even for sober drivers. The fact that breath tests put Smith's blood alcohol level below 0.08 percent, coupled with the fact that prosecutors ultimately dropped the DWI charge, suggests the arrest was not justified.

"It was the most traumatic experience I've ever had in my entire life," Smith told KRQE. "I was lost and super confused. I didn't know what to do. So I had no choice but to proceed and do what he asked….I can't understand how a person can abuse their power that way." He said the DWI arrest "ruined relationships with his family members and led to him losing his job."

Other DWI cases that may have been compromised by corruption involved defendants less sympathetic than Smith. Early in the morning on August 24, the Albuquerque Journal reports, Officer Honorio Alba Jr. pulled over a black Toyota sedan that had been "speeding south on Interstate 25 without its headlights on," going 83 miles per hour in a 55-mph zone. Alba later reported that the Toyota "nearly struck another car" while changing lanes. After the car left the highway, it drove onto a sidewalk.

Alba said the driver, Antonio Barron, had bloodshot eyes and smelled of alcohol. Barron refused to take a breath test. But instead of arresting Barron, Alba put him "in contact with a specific attorney, possibly named 'Rick,' who if hired, would ensure that no court case would be filed," 2nd Judicial District Court Executive Officer Katina Watson reported in a November 3 letter to Albuquerque's Civilian Police Oversight Agency. Watson, who apparently learned about the case because Barron was a former court employee, was alerting the agency to "questionable conduct" by Alba. Watson's letter, the Journal reports, triggered an internal APD investigation.

"Records show Alba didn't file charges against Barron until 10 weeks after pulling him over," the paper says. "Arresting officers typically file criminal complaints and a citation within a day of making a DUI arrest." The charge against Barron, which came eight days after Watson's letter, "was filed in an unorthodox way, via a one-page DWI citation with the word 'summons' at the bottom."

Barron's case is one of nearly 200 that prosecutors have dropped because they could not trust the testimony of the arresting officers. "It makes me sick to my stomach," Bernalillo County District Attorney Sam Bregman told KRQE, "but I have no choice. My prosecutorial ethics require me to dismiss these cases."

In addition to Montaño and Alba, three other members of the APD's DWI unit—Officer Harvey Johnson Jr., Officer Nelson Ortiz, and Lt. Justin Hunt—have been placed on administrative leave pending the outcome of the internal investigation. "APD has been working with the FBI for the past several months on an investigation involving members of the department," an APD spokesman revealed last month. "Due to the sensitive nature of the investigation, some officers have been placed on administrative leave, and others will be temporarily reassigned within the department. APD leadership is working closely with the FBI to ensure a complete and thorough investigation can be completed."

As part of the FBI investigation, the Associated Press reported this month, "search warrants were recently served at the homes of officers who had worked with the DWI unit." KRQE notes that Clear's office was "raided by federal agents last month."

Albuquerque Police Chief Harold Medina spoke in generalities about the investigations at a press conference on February 2. He noted that DWI cases often are dismissed when officers are unavailable to testify, an outcome that defense attorneys can make more likely by seeking trial delays. "Systems that struggle, systems that have loopholes, are really open to corruption," Medina said. "We're dealing with stuff that we anticipate started decades ago, and we've done a lot of things that have got us to this point. But we will continue to dig and look and leave no stone unturned and make sure that we get to the bottom of this."