An Albuquerque Police Department traffic unit in Old Town. File photo, not from the incident. Photo: Skarz / Wikimedia Commons (CC BY-SA 3.0)
Robert Hagen, 68, will not be held in jail before trial in Albuquerque, New Mexico, even though police say video shows him accelerating into the back of a car carrying two children. Jenipher Lewis, 31, who was driving that car, has been in custody since Aug. 20. KRQE reported Nov. 3 that Judge Joseph Montano denied the state’s request to detain Hagen, citing his lack of a criminal history. KOB 4 had reported on Oct. 31 that a judge ordered him held after a Saturday hearing; the KRQE report on the state’s detention motion is the later of the two.
What the video and the complaint say
The clip, which the Albuquerque Journal said has more than 34 million views, was recorded around 8:45 a.m. at Wyoming and Constitution NE, according to the Journal’s first report on the incident. It shows Lewis get out of a red Nissan and swing a baseball bat into a white truck stopped beside her. She gets back in and drives off, and the truck follows and hits her car, shattering the rear window. APD spokesperson Gilbert Gallegos said the truck pushed the car into the northbound lanes of Wyoming and that both vehicles left the scene.
Lewis told police, according to the criminal complaint against her, that the truck pulled out in front of her while she was taking her children to school, that the driver laughed when she confronted him, and that she grabbed the bat to protect herself and the children even though she knew it was wrong. Police said the children, ages 4 and 8, were not hurt.
Hagen’s side of the story arrived months later. The Journal reported that he told police the crash happened because Lewis braked and that he pushed her vehicle out of the traffic lanes; his attorney, Jason Bowles, said at the detention hearing that Hagen left because he feared Lewis “was either going to get out with that bat or another weapon,” according to KRQE. An APD officer who reviewed the video and interviewed Hagen, Lewis, her children and the person who recorded the video wrote in a complaint that the video shows Hagen “accelerating towards her” and braking only briefly after impact, and called his actions “likely intentional,” the Journal reported. Bowles had said police earlier indicated Hagen “was a victim in this incident,” and called the new charges “very troubling.” The district attorney’s office said on Sept. 26 that it had not decided whether to charge him. A warrant followed Oct. 19.
Why the two drivers got different rulings
A pretrial detention hearing in New Mexico does not ask who looked worse on video. Under Rule 5-409 of the state’s court rules, a prosecutor has to prove by clear and convincing evidence that the defendant is likely to threaten the safety of others and that no release conditions would reasonably protect them. The hearing has to start within five days of the motion or the arrest. The judge weighs the nature of the charge, the strength of the evidence, and the defendant’s history and characteristics, and if detention is denied, the court must set release conditions instead.
That is a forward-looking test, and the two judges applied it to two different records. Montano pointed to Hagen’s clean history. Prosecutor Henry De La Garza had argued that Hagen showed he could not control his temper, KRQE reported. Lewis’s attorney, Jess Gaughan, appealed her detention order without success, and Judge Courtney Weaks later declined to reconsider it, saying the behavior appeared to be escalating, according to KRQE. The reports I found do not describe Lewis’s record beyond a suspended-license charge, so I can’t say how much weight each judge put on history versus the facts of the day.
The charges, and what each requires
Everything below is an accusation. A grand jury indicted Lewis on Sept. 3 for child abuse, aggravated assault with a deadly weapon, reckless driving and driving with a suspended license. Hagen is charged with aggravated battery with a deadly weapon, criminal damage to property and leaving the scene of an accident. Neither has been convicted.
The child abuse count is the one most drivers would not expect to attach to a parent in the driver’s seat. New Mexico’s statute covers a person who, knowingly, intentionally or negligently, causes or allows a child to be placed in a situation that may endanger the child’s life or health. “Negligently” there means the person knew or should have known of the danger and acted with reckless disregard for the child’s safety. Prosecutors do not have to show a child was injured or that the parent meant harm, and a first offense without great bodily harm is a third-degree felony. Aggravated battery with a deadly weapon is also a third-degree felony, which carries up to three years in prison and a fine of up to $5,000.
Hagen’s leaving-the-scene count turns on a separate duty. State law requires a driver in a crash to give his name, address and vehicle registration, show a license on request, and render reasonable aid to anyone injured. Hagen told police he left because he was afraid of Lewis; whether that answers the charge is a question for the court.
What comes next
Lewis’s next hearing is set for April 2027, KRQE reported. No trial date for Hagen has been reported. Backfire News has covered other cases where a confrontation between drivers ended in felony charges, including a Tennessee arrest report and a New Mexico security guard’s fake traffic stop.
If both drivers are accused of dangerous conduct in the same encounter, should a judge hold both until trial, or release both on conditions?
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