Vernard Smith
Vernard Smith (Courtesy of San Juan County Adult Detention Center)

FARMINGTON — A Farmington man will go to trial next week to face a drunken driving charge that he was convicted of and served prison time for.

The New Mexico Court of Appeals last year reversed Vernard Smith's DWI conviction because the district court allowed an expert to testify in a video conference, instead of in person, without a good reason.

Smith, 44, was arrested on the charge in October 2010, and he was convicted of the DWI — his sixth drunken driving conviction, according to a state court website — after a jury trial in April 2011. During the trial, former District Judge Thomas Hynes allowed prosecutors to call an analyst for the New Mexico Scientific Laboratory Division to testify via a video conference.

The analyst testified about Smith's blood-alcohol concentration, according to court documents.

Smith was convicted and served prison time. He is now on probation or parole in Farmington, according to a department of corrections website.

During the trial, Smith's attorney objected to allowing the analyst to testify via video conference instead of in person.

In the appeals court opinion published last year, Chief Judge Roderick Kennedy said the district court erred by allowing the analyst to testify via video conference without a sufficient reason.

Kennedy cited other court opinions and said the state can only deny a person the right to confront their accuser face-to-face when it furthers an important public policy. Examples, he said in the document, are when a child victim testifies via video to avoid further physical or psychological harm, or when a witness is too ill to travel or lives out of the country.

"The district court found that, to appear in person, the analyst would have to drive several hours, resulting in the (lab) being shorthanded, and the analyst inconvenienced in her work," Kennedy wrote. "We have declined to define necessity as including convenience."

Smith's trial is scheduled for Feb. 12.

San Juan County Chief Deputy District Attorney Dustin O'Brien said the opinion could have an effect on other convictions, if they involved circumstances similar to that of the lab expert's testimony.

It's unclear how many cases could be affected by the ruling.

O'Brien said there will not be many cases the ruling affects because prosecutors try to avoid video-conference testimony, and other San Juan County judges only allow analysts to testify via video if the defendant agreed to the procedure. He said the only cases that will be affected because of the appeals court's ruling will be cases in which the judge allowed analysts to testify via video despite the defense's objection.

O'Brien said the video conference testimony was offered as a solution to state crime lab analysts having to spend days traveling to courtrooms across the state for trial, which affected operations at the crime lab.


Ryan Boetel covers crime for The Daily Times. He can be reached at 505-564-4644 and rboetel@daily-times.com. Follow him on Twitter @rboetel on Twitter.