February 28, 2018

How one influential NM powerbroker might have escaped a drunken driving charge


A screen capture taken from the body camera of a Albuquerque police officer who was investigating Ryan Flynn (pictured) for DWI in May 2017

Just after midnight on May 20, Albuquerque Police Officer Joshua Montaño saw a luxury sedan veer into a turn bay blocked off by bright orange traffic barrels before it pulled back over a solid divider line onto an Interstate 25 frontage road.

Montaño flipped on his emergency police lights and the 2004 Infiniti stopped in the parking lot of the Marriott Pyramid, a high-end hotel in Northeast Albuquerque.

A veteran DWI cop who has conducted hundreds of drunken driving investigations, Montaño approached the vehicle on foot. He was armed with a slew of additional information gleaned from a police service aide and a concerned citizen: The Infiniti’s driver had swerved numerous times traveling northbound from downtown Albuquerque, he’d delayed proceeding through a green light by 10 seconds, he’d driven 10 mph under the posted speed limit, and he’d done it all with his headlights turned off.

In the driver’s seat of the car was Ryan Flynn, 39, Gov. Susana Martinez’ former cabinet secretary of the New Mexico Environment Department, who left that job in 2016 to become executive director of the New Mexico Oil and Gas Association. In the passenger seat was Jessica Perez, the finance director for several Martinez-linked political committees.

Montaño asked whether Flynn had consumed any alcohol. Flynn shook his head, saying he was not drinking, then sorted through papers from his glove box for a couple minutes in an unsuccessful search for his registration.

Montaño noticed numerous signs of intoxication: Flynn’s eyes were bloodshot and watery, his speech was slow and slurred, and he smelled strongly of alcohol, the officer later wrote in a meticulous police report.

After conducting a series of tests that, according to his training would indicate whether someone had been drinking, Montaño believed he had a solid case. So he offered Flynn a potential chance to stay out of jail by taking a breath test. Flynn refused and was arrested on suspicion of aggravated DWI, first offense, and failure to maintain a traffic lane.

Less than three months later, one of the state’s most most influential powerbrokers and political insiders pleaded no contest to a lone count of careless driving in exchange for dismissal of the DWI charge—and a promise that he attend DWI school, a victim impact panel and submit to screening for substance abuse issues.

Ryan Flynn’s booking photo

Flynn, a lawyer who lives in Santa Fe, helms one of New Mexico’s most powerful trade groups, representing an industry that accounts for more than a third of the state’s $6 billion annual budget between proceeds from the Land Grant Permanent Fund and tax revenue. Prior to that, he was with the Martinez administration from the beginning, first as general counsel for the Environment Department from 2011 to 2013, then more than three years as secretary, where, according to his resume, he was Martinez’ “senior policy advisor on energy and environmental issues.”

Flynn declined to answer specific questions, including whether he was drinking the night Montaño stopped him, but he has maintained in court proceedings and in an administrative hearing aimed at his driving privileges that he was not. Flynn points to the outcome in court and his victory in the administrative hearing as vindication.

A review by SFR and New Mexico In Depth of dozens of pages of police, court and jail records, courtroom recordings, police body camera video and a handful of interviews illustrates the broad powers prosecutors have in deciding how and whether to proceed on DWI cases. That runs contrary to the narrative pushed by Bernalillo County District Attorney Raul Torrez, a young and newly minted top prosecutor who mounted a successful public campaign for a multi-million dollar increase in taxpayer money to assist his office in prosecuting criminal cases, including DWI prosecutions. He had a powerful supporter in the person of Gov. Martinez who championed his bid for more money during the just-ended legislative session.

Torrez and his chief DWI prosecutors have blamed a 50 percent DWI dismissal rate on police officers not showing up to court and pretrial interviews—and on defendants being deported.

The Flynn case, however, shows little to no evidence of such external snags that could doom a case. Instead, it demonstrates how easily a prosecutor can leave a defendant’s record devoid of the stigma that comes with a DWI charge in New Mexico.

When asked to explain the DA’s Office’s decision to drop the aggravated DWI charge against Flynn, Torrez distanced himself, saying he was not “directly involved” in the case.

Michael Patrick, a spokesman for Torrez, Assistant District Attorney Joshua Boone, and Jason Greenlee, chief of the division that prosecutes DWI cases, said during a telephone interview last week that Torrez was not at all consulted on the case.

In separate interview responses, the trio said Boone reviewed the evidence, including body camera footage, and made the final call to offer Flynn a plea deal.

Boone said his assessment was that there was not enough probable cause —a key standard in prosecutorial decision-making—to pursue the DWI charge. He also said his assessment concluded that Flynn had not been drinking the night of the stop.

But SFR and NMID have learned that Boone’s assessment was quite the opposite on those two points: He had, in fact, determined that the case would survive a probable cause challenge and that Flynn’s conduct in the video clearly indicated he had been drinking.

Boone had his doubts about whether he could win a jury trial against Flynn, SFR and NMID have learned, although no prosecutor is ever certain about how a jury will rule in any case.

It is not clear why Boone decided to plead the case all the way down to careless driving.

The DA’s Office said Boone had made a written assessment of the case in a series of notes, but Patrick refused to release them.

For his defense, Flynn turned to two local attorneys—Kari Morrissey and Nicole Moss—who have extensive experience defending clients accused of DWI, particularly in Bernalillo County Metropolitan Court.

It was no mistake that Greenlee and Boone reviewed the case; Morrissey said in an interview that after watching Montaño’s video, she determined that Flynn was not drunk. Knowing the chief of the Metro Division was a key person who could agree to drop a DWI charge, she says she emailed Greenlee, asking him to review the video and expressing confidence that Flynn would prevail at trial.

“That doesn’t look like a drunk guy to me,” Morrissey said in an interview last week. “And I thought, ‘Great, I can win this jury trial.’”

But by Montaño’s account, Flynn had obviously been drinking. DWI officers are trained extensively to look for certain clues during a series of tests that, taken together, demonstrate that someone has consumed alcohol.

In the Flynn case, Montaño noted several such clues, including when Flynn’s eyes wouldn’t properly track the officer’s finger. Wearing flat dress shoes, Flynn was asked to walk nine steps in each direction along a parking stall line outside the Marriott.

“My legs are shaking right now because I’m nervous,” Flynn said, according to the video.

Flynn, also saying he was cold and nervous, nevertheless walked a relatively straight line. During another test, Flynn swayed on his right leg a bit.

Because Flynn was complaining of back spasms, the officer conducted two alternative sobriety tests, first asking Flynn to count backward from 47 to 32. Flynn counted to 37, but stopped there, the video shows.

The officer then asked Flynn to recite the a section of the alphabet, starting with the letter F and ending with the letter R, the video shows.

Flynn chuckled and said: “I can; I’m going to maybe silently do A-B-C-D-E.”  The officer responded: “Well, that’s not part of the test,” as Flynn pressed ahead, reciting the first five letters under his breath, then pronouncing letters more clearly starting with F.

In Montaño’s estimation, Flynn had “performed poorly” on the tests in the aggregate, he wrote in his police report.

He offered Flynn a portable breath test, telling him it could not be used in court but could rule out alcohol use, the video shows. Flynn refused to take the test. Montaño handcuffed him and told him he was under arrest for DWI.

Flynn protested, saying he had passed the tests, according to the video. Montaño told him the tests “are not pass-fail” several times and added that he was trained to look for certain clues.

Later, Flynn refused to blow into a court-admissible breath testing machine, taking his chance on a charge of aggravated DWI. Refusing to take a breath test can be used against defendants in court.

During his more than hour-long encounter with the police, Flynn said at least nine times that he had not been drinking, the video shows.

Yet at his August plea hearing, Morrissey offered a contradiction: She told Metro Court Judge Sharon Walton that, when Flynn “was taken to the jail, he blew a 0.02, at the jail. We have the jail records that indicate that.”

Flynn was stopped just after midnight and, according to jail records, he was booked into the Bernalillo County jail shortly after 7 a.m., although Morrissey disputes the hour at which her client was booked.

That means, according to the jail records, Flynn’s blood contained some alcohol more than seven hours after he was stopped. The presumed level of intoxication in New Mexico is 0.08 percent.

Morrissey conceded in court that the results from the jail breath test would not be admissible at trial.

In her interview with SFR and NMID, she downplayed the the jail breath test results.

“The breath machine that they use at the jail isn’t a machine they use correctly,” Morrissey said. “It’ll spit out a score, but that score is going to be something wild and crazy.”

A spokeswoman for the Bernalillo County Metropolitan Detention Center said breath tests are used only for medical purposes—to determine, for example, whether an inmate might be in danger from alcohol use. She said she could not confirm whether Flynn took a breath test at the jail because it would be part of his medical record.

The DA’s Office was not the only entity that cleared Flynn.

David Buchanan, the administrative law judge who presided over a hearing for the state Motor Vehicle Division, reversed the revocation of Flynn’s drivers license.

“The video shows that the driver was completely coherent and articulate,” wrote Buchanan in a September order.

Testifying in his own defense in the administrative hearing, Flynn said his headlights were automatic and that he never switched them on or off. He also said he was not drinking.

“The preponderance of the evidence presented at the hearing did not establish that Officer Montaño had reasonable grounds to believe that the driver was driving while under the influence of intoxicating liquor or drugs,” Buchanan stated in his order.

In his email to SFR and NMID, Flynn said: “Both the Bernalillo County District Attorney’s Office and an independent Administrative Law Judge objectively reviewed the facts and arrived at the same conclusion: I should not have been detained and there was no evidence to support the charges. Any notion otherwise is a gross fabrication that has no basis in reality.”

Flynn spent a few hours in jail after his arrest and was released without bond and on standard conditions, including that he not possess or consume alcohol or enter liquor establishments.

Perez, the finance director of several political committees linked to the governor, picked Flynn up from the Bernalillo County jail around 9 am on May 20—roughly nine hours after he was stopped, jail records show. She was driving a black Cadillac.

Patrick, Boone and Greenlee, the DA’s Office staffers, said in an interview that they did not know about Flynn’s political position until Joe Monahan, an Albuquerque political blogger, recently posted the case in a brief item on his website that called into question the DA’s use of the resources it already has, given Torrez’s legislative request for millions in additional taxpayer dollars. (Flynn’s case otherwise escaped media scrutiny.)

Hours after the interview with the two prosecutors and Patrick, Torrez’ spokesman, Patrick called a reporter back to say that former District Attorney Kari Brandenburg had once been in a romantic relationship with Monahan and suggested she may have been the blogger’s source. Patrick said he believed that is why the story first appeared on Monahan’s blog, and warned against pursuing the story.

SFR and NMID began investigating this story before it appeared on Monahan’s blog. Neither Monahan nor Brandenburg were a source in SFR’s and NMID’s reporting. Reached by telephone, Brandenburg said she was not a source for the blog post, and questioned why her successor would mention her in such a personal context to avoid answering questions about a public issue.

Soon after Flynn’s plea deal, Torrez began mounting his public campaign for a $6 million funding increase for the office. Days later, in an unprecedented move, Gov. Martinez, a former prosecutor who has made fighting crime a cornerstone of her agenda for seven years, said she would support a $6.5 million increase for Torrez.

In the end, the Legislature approved a $4.3 million bump for Torrez’ office, leaving the first-term prosecutor as one of the biggest winners in the legislative session.

He expressed confidence during his media blitz that more money would translate to more convictions on DWI cases. “I know that if we can get to trial, we can win,” Torrez told the Albuquerque Journal in a January article about the office’s conviction rate on DWI cases. “The problem is getting to trial. We’ve improved over the last year, and the dismissal rate dropped. We are in the process of fixing many technical issues that lead to the dismissals.”