ALBUQUERQUE (KRQE) – Sitting at a coffee shop table in front of a briefcase full of legal notes, letters to court and two traffic tickets, Gary Southern was mad.
“Wake up and read the damn law,” Southern said, snatching a well-worn copy of a New Mexico law from the tangle of documents.
Southern, approaching his 80s, is not a man who takes being slighted lightly.
As Southern tells the story, it was a hot August afternoon when a police officer pulled up behind his van. He was drinking a cold beverage and when the officer eventually stopped Southern, he asked to see the bottle.
Southern obliged, and said he thought nothing of it.
“Of course not, because it’s not a violation,” Southern said.
On the way home from a sweltering couple of hours in a laundromat, Southern was tossing back an O’Doul’s. The beer is sold and marketed as non-alcoholic, with an alcohol content listed on the bottle as “less than 0.5 percent alcohol by volume.”
Smelling beer, Southern says, the officer called for a sergeant who was qualified to do a field sobriety test. He passed.
Still, he says, the police were suspicious of his breath and the size of his pupils. Southern says he told the sergeant that if she still suspected him of being drunk, she needed more training. Then the sergeant asked to see the bottle.
“I showed it to her and she read it,” Southern said, recalling her response “ ‘Oh, contains alcohol. OK.’ “
Southern drove away with citations for driving with an open container of alcohol and failing to maintain his lane.
In Tucumcari, those tickets mean an appearance in front of Municipal Judge Joe Dominguez.
“I informed him that O’Doul’s does have some little bit of alcohol in it,” Dominguez said, “and that it is sold in the liquor section.”
Despite Southern’s objection that the label on O’Doul’s proved it was not an alcoholic beverage, Dominguez convicted him.
“I feel I did my job by finding him guilty,” Dominguez said.
And as he does with all his cases, Judge Dominguez says he told Southern he had 15 calendar days to appeal the judge’s decision.
“I actually was hoping that he would appeal,” Dominguez said, noting that O’Doul’s does purport to be a non-alcoholic beverage, “but he didn’t do it.”
Southern says that’s because, with a job to get back to in Colorado, he paid the fine for the citations.
But as fall turned to winter and then to spring, Southern kept thinking about his conviction. Months later, he looked up the law.
It appears Southern was right.
The New Mexico Motor Vehicle Code defines an alcoholic beverage as a drink “containing more than one-half percent alcohol.”
E. “alcoholic beverages” means any and all distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters or any similar alcoholic beverage, including all blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol but excluding medicinal bitters; (NMSA 66-1-4.1)
While the packaging for O’Doul’s says the drink contains less than 0.5 percent alcohol by volume, a spokesman for Anheuser-Busch told KRQE News 13 that O’Doul’s is brewed to an even leaner standard: 0.4 percent alcohol by volume.
Still, Dominguez stands by his decision and flatly denies his reading of the law was wrong. The retired state Human Services Department investigator also points out the fact that he is not an attorney.
State law does not require municipal judges to be attorneys unless cities choose to add that qualification. Like most rural cities and towns in the state, Tucumcari does not require its city judge to be a member of the state bar.
Dominguez adds that he is free to consult the city attorney with any questions, but said, “It is my opinion that any amount of alcohol is alcohol.”
Southern was on a quest to right the wrong now on his record. He tromped into municipal court on several occasions with a copy of the law. He says he went to the police department and the district attorney’s office.
“Nobody wants to read it because somebody’s got to admit they made a mistake,” he said.
Southern tried twice to appeal the conviction to district court, but by the time he discovered the true definition of an alcoholic beverage – and confirmed the alcoholic content of O’Doul’s – time had long since run out for him to file his objection.
But about that quest …
Southern is running for municipal judge. His campaign is largely a one-man affair, with lots of knocking on doors and a handful of yard signs to announce his candidacy. At his last municipal court appearance, Southern says he told Judge Dominguez he planned to run against him. “And I’m gonna put you out of business,” he said.
“I mean, he’s just vicious and he’s revengeful,” said Dominguez. The judge has already defeated Southern once – in 2010 – since the open container conviction. This year’s election is just a few weeks away in March.
Both men say Tucumcari deserves better.
“I don’t want anybody else to go through the agony I’ve been (through) on this case,” Southern said, “He’s a judge. He should know the law.”
After 17 years on the bench, Dominguez doesn’t seem himself tiring of elections pitting him against Southern.
“I doubt it. I’m not a quitter,” Dominguez said.