More Local

• ABQTrib.com to remain available
• Former Marine to serve two years in jail for killing Albuquerque robber
• Wilson-Pearce battle for U.S. Senate exemplifies party's disparity

MOST RECENT TRIB STORIES

• ABQTrib.com to remain available
  08:48 a.m., February 25, 2008
• Congressman is indicted
  08:37 a.m., February 23, 2008
• Series of attacks target Green Zone
  08:36 a.m., February 23, 2008
• Iran is defying U.N., agency says
  08:35 a.m., February 23, 2008
• Waterboarding approval probed
  08:34 a.m., February 23, 2008

TRIB IN THE BLOGOSPHERE*

• Albuquerque Old Town
• Ty Murray Invitational thrills fans in Albuquerque
• Is Rome Burning?
• Ominous Skies
• The Road to Invalidation

*Note: The Tribune does not create and is not responsible for the blogosphere's headlines and stories. These links to blogs talking about ABQTrib.com are automatically generated. Use them at your own risk.

STORY TOOLS

• E-mail story
• Comments
• iPod friendly
• Printer friendly

SHARE THIS STORY [?]

Like Galileo.

That's how Rod Frechette, an Albuquerque attorney who has represented thousands of people accused of drunken driving, says he's felt all these years challenging the accuracy of the Holy Intoxilyzer.

"I feel like Galileo going in front of the pope," Frechette says. "They don't want real science."

The state stands by its alcohol-level breath analyzers, whose readings have provided the legal basis of thousands of DWI convictions.

Now, a pair of cases heading for the New Mexico Supreme Court are giving a forum for defense attorneys' concerns about the machines that produce weighty decimals like 0.08.

One of those cases - named for Ruidoso resident John Day III - went into effect after a New Mexico Court of Appeals ruling in June. The court set aside Day's conviction, saying the state couldn't prove Day was intoxicated because his breath test was taken 66 minutes after he was caught driving.

In August, the same court handed down a ruling in State v. Joseph Lizzol.

The state Attorney General's Office has appealed both, saying they place an additional burden on prosecutors.

The Day case requires the state to provide expert testimony on breath-analyzer readings in some cases. Lizzol requires expert testimony about the Intoxilyzer machines themselves.

Prosecutors say the rulings have had a limited but noticeable effect so far.

The legal challenges have prompted alarm from the state's vocal anti-DWI community.

"This is an assault on (breath-alcohol testing) in New Mexico," DWI Czar Rachel O'Connor said of the Appeals Court rulings. "It's frustrating because we are just beginning to turn the corner against DWI."

On the ground, lawyers say the Day ruling is coming into play in about half of DWI cases - mostly those where breath-analyzer readings are close to 0.08, the state's presumed level of intoxication.

With prosecutors now required to bring in experts to testify about the meaning of breath-analyzer readings, they're finding too few experts to go around.

In fact, there are exactly six qualified experts in New Mexico.

All six work for the Scientific Laboratory Division of the state Department of Health. Besides their courtroom duties, they are responsible for the certification of New Mexico's 305 Intoxilyzer 5000 and Intoxilyzer 8000 machines.

They also conduct toxicology screens on blood samples drawn in drug and alcohol cases and for autopsies carried out by the Office of the Medical Investigator.

In the year prior to the Day ruling, the state's six toxicologists received an average of 65 subpoenas a month to testify in court, according to David Mills, the director of the Scientific Laboratory Division.

In July - the month after the ruling - they received 75. In August, they got 76, Mills says.

Those subpoenas often require them to travel to far-flung parts of the state, he adds.

Can they handle the increased workload?

"No," Mills says. "Not really. Whenever people have to go to court, that means they're not in the lab, and that's where most of our responsibilities are."

Faced with difficulty obtaining expert witnesses and new questions about the value of breath-analyzer evidence, prosecutors say they're having to focus on proving a defendant was impaired based on their behavior.

That places an increased onus on testimony by police officers and often leaves district attorneys with cases that are harder to make, they say.

Thirteenth District Attorney Lemuel Martinez says his office is now offering plea bargains for reduced charges in cases it would have previously taken to trial.

"That's a policy decision," he says. "Maybe it's not the right decision, but we feel it's better to get a conviction (on lower charges) than risk losing."

Bernalillo County District Attorney Kari Brandenburg says Day's effect is concentrated mainly in rural areas where experts are harder to get. But it's affected her cases as well, she says.

"There are ways around it, but it increases our burden," Brandenburg says. "It increases the number of hurdles."

Frechette, who represented Mark Joseph Lizzol during his 2005 DWI trial in Metro Court, says Lizzol's case has the potential to have a much more significant effect than the Day case.

He says the Intoxilyzer machines used by the state are fraught with problems - he calls them "junk science."

He's purchased a number of decommissioned Intoxilyzer 5000s - the older of the two models used by New Mexico - to examine their inner workings.

"We're buying them up and taking them apart and - voil - everything we've been saying about them is accurate," Frechette says.

Among their purported problems: Frechette says alcohol residue in a defendant's mouth can cause a spike in Intoxilyzer readings. Eating a piece of bread can cause someone to register a 0.05, more than half the legal alcohol limit, he says.

"You can start taking parts off these machines and their self-diagnostic will say everything is fine," Frechette adds.

The Lizzol case challenges current law that allows arresting officers to testify that their Intoxilyzer was working properly.

The Appeals Court ruled that officers may not know anything about how the machine works.

"The officers just look at a (certification) sticker and say it's okey-dokey," Frechette says.

Mills dismisses Frechette's concerns about the technology and potential glitches.

The state lab certifies the machines annually, he said. And officers are required to wait 20 minutes before administering a breath-alcohol test, which eliminates the possibility of outside influences, such as bread.

Mills says he's not aware of any removable parts on the newer-model Intoxilyzer 8000.

"Many years of study and field experience have gone into these instruments," he says. "The science on these is very good."

No date has been set for the Supreme Court's hearings on the Day and Lizzol rulings. At least for now, the proposition that "you drink, you drive, you lose" has become a little more complicated.