State District Judge Michael Vigil on Monday acquitted former state police officer Alfred Lovato of a vehicular-homicide charge in the November 2008 death of William Tenorio.

However, Vigil will let a jury decide if Lovato is guilty of leaving the scene of the fatal accident, a felony charge punishable by a maximum of 18 months in prison.

Special DWI prosecutors Donna Bevacqua-Young of the New Mexico Attorney General's Office and Assistant City Attorney Alfred Walker rested their case after testimony from the driver, former attorney Carlos Fierro, and two other witnesses. Lovato, 40, was riding in the black BMW driven by Fierro on Nov. 26, 2008, when Fierro struck and killed Tenorio outside the now defunct WilLee's Blues Club on Guadalupe Street in downtown Santa Fe.

Because of the clear evidence against Fierro in the case, Vigil ruled, the charge of vehicular homicide should remain solely with him.

"The state has clearly proven the first prong, and that is that Fierro is guilty of vehicular homicide," Vigil said. "It's the second prong that I had trouble with. The state has not met the burden of proving Mr. Lovato's role in this case."

Fierro, testifying Monday morning in an orange jumpsuit, told the court that he and Lovato had mutually agreed to go out drinking that night. He said it was his decision to initially leave WilLee's because a woman was "threatening" him, saying, "You better watch your boy," pointing to Lovato.

Several women who testified last week said Lovato was drunk and tried to grope or kiss them.

"I thought there was a fight about to happen at the bar," Fierro said. "The decision was to go at that point, it wasn't about calling a cab."

He also said that it was his decision -- not Lovato's -- to drive back to WilLee's after stopping at Allsup's, 305 N. Guadalupe St., just before Tenorio's death.

"I noticed I didn't have my check card, and that's when I made the decision to go back to WilLee's, assuming it was there," Fierro testified.

Fierro is serving a seven-year prison sentence at the Central New Mexico Correctional Facility in Los Lunas but is scheduled to be released in a few months because of good-time credit.

After his ruling acquitting Lovato of vehicular homicide, Vigil said that because evidence shows Lovato was conscious after the impact with Tenorio, he still faces the felony charge of leaving the scene of an accident causing great bodily harm or death.

Defense attorney Sam Bregman had motioned for the directed verdict by Vigil on the vehicular-homicide charge, but Bevacqua-Young opposed the motion, arguing that the charge should go before a jury.

"They were together at every stage that night," Bevacqua-Young said of Lovato and Fierro. "They drank a lot at Rio Chama, and both of them decided they were going to continue their night without a designated driver."

Evidence provided in the trial shows that Lovato called Fierro and went to Fierro's mother's house before suggesting the two go out. According to evidence, Lovato even ordered some of Fierro's drinks.

In his motion for a directed verdict, Bregman said, "Millions of people every day talk about going to a restaurant. That alone cannot be called criminal intent."

"It's alarming the lack of evidence they have to charge Mr. Lovato with homicide," Bregman said.

In his ruling, Vigil agreed, saying Lovato's actions before the crash and his presence with Fierro are not enough to convict him of vehicular homicide.

The case that set the precedent for the state to pursue charges against Lovato, despite Vigil's previous dismissal of the case in 2010, was the Quay County case of State v. Marquez.

Patrick Marquez was the passenger in a vehicle driven by Leo Lucero that rear-ended a van and killed two people in 2009. In that case, Marquez had purchased a case of beer and explicitly encouraged Lucero not only to drive after drinking at a bar, but also to drink the beer while driving.

In the case against Lovato, the state argued that the absence of preventive action is what Lovato should've been held accountable for.

"We have to admit actions speak louder than words here," Bevacqua-Young said.

Lovato, she pointed out, never recommended that the two call a cab or took away Fierro's car keys.

"As opposed to calling a cab, what do they do, Your Honor?" Bevacqua-Young asked. "They drive to Allsup's to get more food, then back again to WilLee's."

But Vigil maintained Lovato's mere presence with Fierro through the night was not enough to convict him -- evidence that he aided and abetted Fierro would have been required.

However, Vigil said, questions remain about Lovato's and Fierro's actions after the crash.

Bregman has argued throughout the trial that nobody could prove if Lovato was "conscious" before and during the accident. However, in his testimony, Fierro indicated Lovato was conscious when the two left the scene of an accident.

"After the crash, I was conscious, and I could tell Alfred was after the impact," Fierro testified, adding that Lovato may have made an exclamation immediately after the crash.

However, Fierro said, the two didn't converse about the incident until they were pulled over by police on Marcy Street in front of the Santa Fe Community Convention Center, and then again hours later, when they were in a Santa Fe Police Department holding cell.

Bevacqua-Young asked the former attorney if he is obligated by law to stop after hitting something.

"Sure, depending on what you hit," Fierro responded.

But Fierro denied Lovato was responsible for the two driving away from the scene of the accident.

"If you're asking me if Alfred and I were talking, my answer is no," Fierro said. "I was assessing everything, trying to figure out what I hit."

Lovato's trial on a charge of leaving the scene of an accident will continue Tuesday before a jury.

Contact Nico Roesler at 986-3089 or nroesler@sfnewmexican.com.