A Phoenix driver who allegedly killed three men, including popular local rapper José "Low Key" Hernandez, in an auto crash last year, may wind up serving no more than a month in jail if he's convicted, despite having admitted to drinking the night of the accident and to running a red light.
The Maricopa County Attorney's Office has declined to pursue felony manslaughter charges against Andy Gary Barrios, the driver of the SUV that slammed into the car carrying Hernandez and the other victims, stating in a letter to the family of one of the men that "there is no likelihood of conviction at trial."
As a result, the case is in the hands of the Phoenix City Prosecutor's Office, which according to court records has charged Barrios, 23, with one count of causing death by a moving violation, a Class 3 misdemeanor punishable by a maximum $1,000 fine, up to 30 days in jail, and a possible six-month suspension of his driver's license.
Asked if more misdemeanor charges against Barrios might be forthcoming, a spokesman for the city prosecutor's office would only say, via e-mail, that "the court has no way of knowing whether or not additional charges might be filed."
Barrios is scheduled to be arraigned in municipal court on Friday morning.
Hernandez's mother, Christina Chicharello, is incensed by the county attorney's decision, and says the punishment for a Class 3 misdemeanor is too low for one death, let alone three.
"Thirty days?" she asked incredulously during an interview with New Times. "What the hell is that? Do they think my son's life is worth that? Wow."
Chicharello points out that Barrios admitted to Phoenix police that he'd been drinking before the crash, a fact borne out by the police incident report. A sample of Barrios' blood drawn three hours after the accident showed Barrios' alcohol level to be .02, well below the legal limit in Arizona of .08.
She disputes the MCAO's reasoning in not filing a felony charge against Barrios. She believes that a county jury would convict Barrios for manslaughter after being presented with the facts.
Yet the facts, such as they are, may not lend themselves to a successful felony prosecution.
According to the police report obtained by New Times, at approximately 2:06 a.m. on December 26, Barrios was driving his black Chevrolet Tahoe home from a local strip club when he failed to stop at a red light at 59th Avenue and Indian School Road, T-boning a 1997 Lexus ES300 occupied by driver Jonathan Green and his two passengers, Hernandez and Jose "Chico" Martinez.
Martinez and Hernandez were 25; Green was 26. Police reported them dead at the scene. The Lexus was so badly smashed that Phoenix firefighters had to cut the vehicle open to retrieve the bodies.
Barrios and his passenger, Marcos Rodriguez, survived the accident. Rodriguez, 26, had been knocked around badly enough that the Phoenix PD gave him a ride to a local hospital for treatment. Barrios was relatively unscathed. At the scene, Rodriguez told officers that the two men had been celebrating Rodriguez's birthday at Chicas Cabaret, where they'd "split a bucket" of six 12-ounce beers about an hour before the accident. But Rodriguez said he could only recall seeing Barrios drink one beer.
Barrios immediately admitted drinking, telling Officer Gary Hamlett at the scene that he'd had "like two beers" at Chicas. "I think the light was red for me," he conceded. He also admitted to driving without insurance, according to the report. Police estimate that Barrios had been driving 56 mph in a 40 mph zone.
A breath sample taken at the scene from Barrios indicated a .04 blood alcohol content, below the legal limit. About two hours later, while being questioned at the Phoenix PD's Maryvale Precinct, police tested Barrios' breath again, yielding a reading of .015. At about 5:41 a.m., Barrios consented to having his blood drawn, which later indicated .02.
At the precinct, according to the report, Barrios told officers that he had "consumed 4 to 5 beers," beginning at midnight and ending around 1:45 a.m. At the scene, Rodriguez had said he and Barrios had stopped at a convenience store before the crash to buy a six-pack of Dos Equis. Officers later found the beers, unopened, on the floor of the Tahoe.
After police drew his blood, Barrios was allowed to call for a ride and leave the premises. His record indicates that he has been issued tickets for speeding and other offenses.
Arizonans are often reminded via the media about the toughness of Arizona's DUI laws, and are warned that one can be found guilty of drunk driving if "impaired to the slightest degree." Police say Barrios did not show signs of impairment.
A former Maricopa County prosecutor with expertise in vehicular homicides, speaking to New Times on condition of anonymity, says the case for a manslaughter charge against Barrios would be tough to make. With manslaughter, a Class 2 felony, the prosecution would have to prove that Barrios "recklessly" caused the death of another person or persons. Because Barrios was not found to be impaired, and because he was not driving more than 20 mph over the posted speed limit (a criminal offense), this could be difficult.
After reviewing the police report, the former prosecutor told New Times it was "more of a case of physics — Lexus vs. Tahoe, and mass always wins." (A '97 ES300 weighs about 3,300 pounds — about 2,000 pounds less than a late-model Tahoe.) According to the prosecutor, the county attorney's office has had a hard time proving such cases, and the bar is higher in deciding to file charges, as there has to be a reasonable "likelihood of conviction."
(With the possible exception of the I-10 shooter case, in which County Attorney Bill Montgomery apparently waived that rule.)
Still, the veteran attorney agreed that 30 days in jail for three deaths is a "ridiculously light" price to pay. In effect, the punishment would be 10 days in jail per death, assuming the judge were to levy the maximum. "On the spectrum of misdemeanors, this seems about as bad as it gets," the ex-prosecutor said.
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That's of little solace to the family and friends of the three men who died tragically young.
Same goes for Hernandez's fans. The Phoenix MC had obtained local celebrity. Despite past problems with the law, he was turning his life around, according to an item by New Times music writer Jeff Moses, published shortly after Hernandez was killed.
The rapper's personal motto was "hustle hard and stay humble," and he was known for his work with homeless.
"He was authentic," a fellow recording artist told Moses in late December. "He was genuine and that’s what set him apart. He didn’t boast of things he didn’t have; he just kept it real with music that came from his heart — he was a real dude."