Legal ploy blamed for driver’s 12th DWI arrest being dropped

ALBUQUERQUE, N.M. (KRQE) – It was an arrest in the middle of a cold February night that felt all too familiar for police, and familiar for the suspect, too.

Just after midnight, Albuquerque police responded to reports of a crashed and abandoned car near a northwest Albuquerque apartment complex, near the city’s border with the neighboring town of Corrales. Police found an open beer can inside the car, but no driver.

But just a few blocks away, police found their suspect: Lucy Kowalchuk, an Albuquerque driver who police say has been arrested for DWI at least 12 different times. To police, the case seemed clear cut. Officers suspected Kowalchuk had been drinking, and the abandoned, wrecked car found less than a half-mile away was registered to someone in the woman’s family.

But now, more than a year and a half after that night Kowalchuk was arrested in the case, her DWI case has been dropped.

While the district attorney’s office says problems arose during prosecution that were beyond their control, the situation has Albuquerque police worried that an accused drunk driver caught a break through a courtroom legal ploy.

Albuquerque police say Lucy Kowalchuk is no stranger to officers in the northwest area of the city. Records at the Bernalillo County Metropolitan Detention Center show Kowalchuk has been booked in jail at least 26 times, including multiple arrests for drunk driving.

“The officers that work in our northwest area command are very familiar with, not only her, but her entire family,” said Officer Tanner Tixier, a spokesman for the Albuquerque Police Department.

One of the most recent cases unfolded on February 22, 2015 near the intersection of Corrales Road NW and Alameda Boulevard. Police reports from Kowalchuk’s arrest indicate that officers found a red 2008 Chevy hatchback smashed against a metal fence bordering the “Camino Real Apartments.” Police believed the car was heading southwest on Corrales Road when it veered off the road, into the apartment fence.

“A witness that lived in the apartment complex immediately ran to his window, saw the accident scene, and observed Ms. Kowalchuk exiting the vehicle from the passenger side,” said Tixier.

According to police reports, the eyewitness told police that the driver was a “short, heavy set woman wearing dark clothing.” Reports also state the witness said he only saw one person emerge from the crack wreck, and that the female suspect then ran south down Corrales Road.

According to APD, a Bernalillo County Sheriff’s deputy found Kowalchuk about a half-mile away from the crash, barefoot, and hiding behind a light pole on Alameda Blvd., near the “Cottonwood Professional Center” strip mall complex. Reports indicate that officers detained Kowalchuk for jaywalking while police started their investigation into the crashed car.

According to police reports, officers told Kowalchuk they believe she was involved in the crash, but she denied it. Reports state that Kowalchuk said she was coming from her friend’s house, but refused to say where the house was.

Police reports and a criminal complaint state that an officer took the eyewitness to where Kowalchuk was being detained, and the eyewitness positively identified Kowalchuk.

“Lucy had slurred speech, bloodshot water eyes and a strong odor of alcohol emitting from her person. Lucy admitted to Officer J. Wolfbrandt prior to my contact with her, she had drank a few beer this night. Based on the witness account and the proximity of the accident to where Lucy was located, a DWI investigation began.”

Statement written by APD officer Roger Legendre in supplemental report for Kowalchuk’s 02-22-2015 arrest.

“I’m smelling some alcohol coming from you, how much have you had to drink tonight?” asked APD officer J. Wolffbrandt.

“One, a few beers,” said Kowalchuk.

“A few beers?” asked the officer.

“I haven’t had any,” said Kowalchuk.

According to police reports, officers learned that the nearby crashed car was registered to Kowalchuk’s daughter. Police say Kowalchuk both admitted and denied drinking, smelled of alcohol and refused to complete field sobriety tests, and denied any role in the nearby crash multiple times. APD didn’t buy it. Kowalchuk was arrested for aggravated DWI and leaving the scene of a crash along with a driving related citation of “weaving – driving on roadway lane.”

At APD’s northwest substation, officers stated in reports that Kowalchuk refused a breathalyzer test. According to those same reports, police also learned that Kowalchuk had a history of DWI. During her transport to MDC, Kowalchuk spent several minutes yelling at officers, accusing them of letting her fall while she was in a holding cell. Police deny the accusation.

In 2016, prosecutors with the Second Judicial (Bernalillo County) District Attorney’s Office were preparing to take Kowalchuk’s DWI cases to trial. However, the case went out the window.

In a June 2016 court filing, prosecutors entered into a “nolle prosequi.” In other words, prosecutor dropped the case with the possibility of refiling charges in the future.

In its filing, the district attorney’s office stated that the state “cannot prove that the Defendant drove during this incident.” Prosecutors blamed “all of the other evidence” in the case, including testimony from a defense witness named “Pete Guevera.”

So who is Pete Guevera? Court documents indicate that he is a “friend” of Kowalchuk’s, who randomly came forward months after the crash to confess that he was driving the car that police accused Kowalchuk of driving and crashing at the northwest Albuquerque apartment complex in February 2015. Kowalchuk’s defense attorney claimed that Guevera would testify to his claim that Kowalchuk wasn’t driving.

In a motion filed in district court, Kowalchuk’s defense attorney asked for immunity in order for Guevera to testify. The defense attorney claimed that without Guevera’s testimony, Kowalchuk wouldn’t get her constitutional right to fair trial. Prosecutors with the Second Judicial District Attorney’s Office didn’t oppose the motion, and a district court judge granted immunity to Guevera in April 2016,protecting him from any kind of prosecution in the case.

Even though police had no evidence to tie Guevera to the case, police believes the uncommon legal ploy did Kowalchuk a huge favor.

“People can come forward now, and say, ‘oh yes it was me, definitely wasn’t that person, but I want immunity to say,’ that and the judge can grant that, and no one is held accountable,” said Tixier.

However the district attorney’s office insists, the case would have fallen apart, regardless of Guevera’s testimony that he was the driver.

The office of Second Judicial District Attorney Kari Brandenburg refused KRQE News 13’s request for an on-camera interview about Kowalchuk’s 2015 DWI case. However, the office responded to several questions via e-mail.

Through written statements, prosecutors say they didn’t oppose Guevera’s ploy for immunity because it didn’t have evidence to suggest that Guevera was lying, and because it was not their place to bar the evidence he could present.

“The defense said Mr. Guevara was going to testify that he was the driver. If he was being truthful that would mean the defendant was innocent. If the defense is seeking to present an exculpatory defense witness, as a prosecutor I do not think it is appropriate to try to prevent that witness from testifying, so I did not object to the Court granting immunity. If I had evidence that the witness was perjuring himself that would have been another matter.”

–Guinevere Ice, Assistant District Attorney, Second Judicial District Attorney’s Office.

The DA’s office insists that prosecutors “couldn’t ethically proceed with the prosecution” in Kowalchuk’s case.

But what was the biggest factor for dropping the case? The DA’s office does not believe that granting Guevera, the defense witness, immunity from prosecution, and allowing his testimony were what caused the case to collapse. Prosecutors instead point to the loss of their only eyewitness, who claimed he saw Kowalchuk climbing out of the passenger seat of the wrecked car.

According to the DA’s office, that sole eyewitness moved out of state and is also now considered “medically unavailable to testify.”

That same witness also changed key elements in his recollection of what happened on night of Kowalchuk’s arrest.

On the night of the crash, the witness, Jerry McCrackan, told police that he was in his living room watching TV when he “heard a long, loud crash-like noise outside.” In a written statement, McCrackan wrote, “I went to my patio door and saw a car parked in a crash position.”

Months later, in a November 2015 phone interview with prosecutors, McCrackan stated something far different. During the interview, McCrackan told prosecutors that he watched the entire crash happen from his patio, on the outside of his second floor apartment.

“All I can remember is I was sitting there and patting the dogs and I looked up, and I seen headlights coming, they were coming at a good speed, or what I consider, and next thing I knew, I heard this crash and I seen poles go flying into the air and stuff,” said McCrackan.

McCrackan later told prosecutors he saw the driver crawling out of the driver’s side of the car. On the night of Kowalchuk’s arrest, McCrackan said he saw her climb out of the passenger’s side.

“I put my shoes on and ran down the stairs, and just as I turned the corner… corner of the house, I seen someone pushing themselves out from the window of the car, and crawling out,” said McCrackan.

Still, the DA’s Office insists that had the witness been available, it would have been able to try the case.

While APD still wanted the case to be tried, prosecutors saw it differently. Without their key witness, the Second Judicial District Attorney’s Office felt their case wasn’t strong enough to bring a trial against Kowalchuk.

“I consider this case as unlucky as opposed to “bad”, because no one actually saw the defendant driving. We had circumstantial evidence of her driving, because a witness saw her get out of the vehicle, and he did not see anyone else get out of the vehicle. However, he (McCrackan) was the only witness that was able to identify her, and unfortunately he is no longer available. If he were available we could have tried this matter. After assessing the credibility of the state and defense witnesses, it is possible a jury could have convicted her. However, because of the circumstantial nature of the case, the inconsistencies of the witness, and the defense testimony of Mr. Guevara, a jury could have easily acquitted, as well. We know Defendant’s history, so it is difficult to believe she is innocent, but a jury would know nothing of her history, and would have based their decision purely on what was presented in court.”

–Guinevere Ice, Assistant District Attorney, Second Judicial District Attorney’s Office.

KRQE News 13 showed the case to a former prosecutor and a longtime criminal defense attorney, Ousama Rasheed. Rasheed is the past-president of the New Mexico Criminal Defense Lawyers Association.

“I see this case as being a case that probably looked really good in the beginning, and the person may indeed have committed the act, but the government still has the burden of proving beyond a reasonable doubt that the person committed the criminal act,” said Rasheed.

Rasheed believes the case would have been difficult to prove, and says he agrees with the DA’s office’s decision to drop the case.

“You’ve lost your primary witness that puts this person behind the car, and you have somebody else coming forward to say that they’re the driver, that is just a recipe for beyond a reasonable doubt not being able to be met,” said Rasheed.

Ultimately, Rasheed says he doesn’t believe defense witness immunity played a role in the sinking of the case.

“Without the witness that puts the person in the car and running away, they can’t even put the (suspect) in the same block as the car and under those circumstances, it would be difficult to prove driving even though there’s still some circumstantial evidence that maybe (Kowalchuk) was the driver,” said Rasheed.

Rasheed also made it clear to KRQE News 13 what his experience has been as a criminal defense attorney, defending DWI suspects against prosecutors in the felony DWI division of the Second Judicial District Attorney’s Office, who he says, “do a good job.”

“I deal with them on a regular basis and they don’t give me the farm,” said Rasheed. “So I think that it’s important to know that the specific attorneys that we’re talking about do a good job and work hard and don’t give away cases, so I think that for them, this appears like they rolled over and played dead, when really they just came in and called a time of death on this case.”

Regardless of what sank the February 2015 DWI case against Kowalchuk, police believe one thing remains clear.

“You have nine victims of an auto accident that are now not going to get justice,” said Tixier. “When it happens like this, it’s very troubling.”

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