A state district court jury in Taos could not reach a decision Tuesday (Nov. 27) as to whether a Taos County Sheriff's Sergeant lied about viewing a lapel cam video of a drunk driving incident in 2017 …
Updated Nov. 28 at 11 a.m. Jury reaches impasse. Correction appended.
A state district court jury in Taos could not reach a consensus Tuesday (Nov. 27) as to whether a Taos County Sheriff’s Sergeant lied under oath at a New Mexico Motor Vehicle Division hearing in 2017.
Five jurors found Sgt. Gilbert Atencio guilty, while seven determined that there was insufficient evidence to prove Atencio had lied about having viewed a lapel cam video of a traffic stop which resulted in the wrongful charging of a former Taos Pueblo Tribal Police Officer.
The Motor Vehicle Division hearing was to determine whether the tribal member was to have his driver’s license revoked after Atencio, 54, arrested him for aggravated DWI near the Storyteller Cinema 7 in Taos on Sept. 2, 2017.
Video recorded on the sergeant’s lapel camera was played during trial this week. It shows that while the driver first refuses to take a breathalyzer test, he later agrees after Atencio reads him the consequences of a refusal. Drivers who refuse testing are charged with aggravated DWI in New Mexico.
Instead of taking the driver to be tested, however, Atencio drove him to be booked at the Taos County Adult Detention Center. The sergeant later wrote in a statement of probable cause that the driver had never agreed to take the test.
While under oath at the MVD hearing held later in the year, Atencio affirmed that the driver had denied the testing. He cited his lapel cam video as evidence of the refusal, and told a hearing officer that he had reviewed the footage earlier in the day.
But after reviewing recordings of the hearing and video of the traffic stop, the New Mexico State Police Investigations Bureau determined that Atencio’s account of the incident indicated he could not have viewed the video prior to the hearing. The Bureau charged Atencio with one count of perjury earlier this year.
During Atencio’s trial, Dustin O’Brien, chief deputy district attorney with the 11th Judicial District Attorney’s Office, told the jury that it would have been “impossible” for Atencio to have viewed the video prior to the MVD hearing in light of his erroneous account of the incident.
Taking the witness stand to testify during the second day of his trial on Tuesday in Taos, Atencio reiterated the defense he had relayed to state police investigators: that he hadn’t watched the video in full, but had skipped forward to the section where the driver first refused the test, stopping before the driver changed his answer.
O’Brien said Atencio likely lied about viewing the video to “maintain credibility,” but seemed to have made an honest mistake and forgot the driver changed his answer. He said it was more likely the sergeant had only reviewed his own erroneous report of the incident, which would later be thrown out, along with the charge against the driver.
Atencio’s defense attorney, Paul Sanchez, countered that the state had failed to prove his client had lied. A conviction for perjury requires proof that a defendant deliberately gave a false statement.
“Every statement (Atencio) gave he believed to be true,” Sanchez told the jury during closing arguments. “The state wants you to believe that a crime was committed at the MVD hearing, but it was a mistake that started at the traffic stop.”
Sanchez questioned other law enforcement officers during trial, who also said that video evidence of an incident is not always reviewed in its entirety prior to a hearing.
A member of the Taos County Sheriff’s Office since 2015 and with over 17 years total in law enforcement, Atencio had never before been charged with perjury, according to court records.
Taking the stand to testify on Tuesday, Atencio repeated in response to questions: “I made a mistake.”
After a few hours in deliberations, the divided jury returned to the courtroom late Tuesday afternoon to say that further time deliberating would not change the split.
In the foyer outside the courtroom, O’Brien interviewed several jurors to help determine whether his office would seek a retrial against Sgt. Atencio.
“At this point, I don’t know,” O’Brien said. “It’s an easy decision if it’s 11 to 1 for a conviction, or 11 to 2. Then it’s a case we’re going to retry. When it’s split like this, it’s going to take some thought and analysis by our office before we make a decision.”
As of press time, Atencio still faced the perjury charge pending the state’s decision.
This is a developing story. For more, check back here at taosnews.com.
A prior version of this story stated that aggravated DWI is a felony. A first-time aggravated DWI is a misdemeanor in New Mexico. The charge only becomes a felony upon a fourth offense.
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