Wednesday, April 27, 2005

Hernandez charges dismissed

D.A. says evidence in vehicular homicide case too weak after key witness declines to testify

Audry Olmsted El Defensor Chieftain Reporter

The case against Patricia Hernandez, charged with vehicular homicide in the death of her two nieces, has been dismissed because the state could not prove its case, the district attorney says.

District Attorney Clint Wellborn said the case against Hernandez, 26, of Lemitar, has been dismissed without prejudice, meaning the state could re-file charges if new evidence becomes available.

"That case just fell apart," Wellborn said. He said the state's case hinged upon the testimony of one expert witness.

"The whole case hinged upon the level of marijuana in Hernandez's blood," he said.

That testimony, he said, was going to come from Sarah Kerrigan, a forensic toxicologist and bureau chief for the New Mexico Department of Health.

Wellborn said Kerrigan informed him that she would not be testifying because she was upset and offended over comments that were being made about her on a local Web site concerning the case. Wellborn said the Web site criticized Kerrigan.

The state, he said, was trying to prove that Hernandez was under the influence of marijuana when she crashed her vehicle in Escondida in 2003, driving he car into an irrigation ditch, where the car landed upside down. Her 7-year-old twin nieces drowned.

After Kerrigan declined to testify, the district attorney said the state sought the expert opinion of Dr. Nutakki Rao, who has a degree in forensic toxicology.

Upon examination of the drug and alcohol testing that was done on Hernandez after the crash, however, Rao said Hernandez had a minimal amount of marijuana in her system and was not impaired or under the influence of the drug when she was driving.

Wellborn said that, based on Rao's findings, the state cannot go anywhere at this time with the case.

He said Kerrigan wanted to pursue some case against the person running the Web site, but said he could not find anything on the site that would warrant action, saying that the person who runs the Web site has the freedom of speech and the press.

Hernandez had been charged with two counts of felony vehicular homicide, aggravated driving while under the influence, careless driving, failure to carry proof of financial responsibility and driving on roadways laned for traffic.

The trial against Hernandez was delayed five times between 2004 and now, while the state tried to build its case.

aolmsted@dchieftain.com

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