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After two highly publicized DWI cases in 2006 successfully challenged the breath-analysis testing process, prosecutors could see it coming — a flood of hurdles to convict drunken drivers.

But even after the Legislature and state Supreme Court effectively nullified the two cases, the appeals keep coming. And they are stacking up.

The number of DWI cases appealed from Metro Court to District Court increased by 56 percent from 2005 to '07.

Because defense attorneys can retroactively appeal certain DWI cases, and because appealing a DWI conviction delays the requirement to use an ignition interlock device, the backlog of appeals cases — now 142 — is almost five times larger than the backlog in 2005, the year before the controversial rulings.

District Attorney Kari Brandenburg and District Court Administrator Juanita Duran attribute the increase to the two original cases.

In 2006, appeals in two cases — State v. Lizzol and State v. John Day III — created big hurdles for prosecutors to leap in order to win DWI convictions.

Lizzol and some associated cases made prosecutors provide extra proof — beyond an officer's testimony — that breath-alcohol test machines are functioning properly when used to check a driver's intoxication level.

The state Supreme Court overruled the Appeals Court in 2007, saying an officer's testimony is, in fact, adequate evidence that a breath-test machine is working properly.

The Day case made prosecutors provide testimony about a defendant's alcohol tolerance, food consumption and other factors that might influence a breath test.

In that case, the defendant claimed he was not drunk when he was arrested while driving, but after his 20-minute deprivation period — a mandatory waiting period before the test is administered — his blood-alcohol level rose to the point of legal intoxication.

In 2007, the Legislature clarified the statute to say that if a defendant's blood-alcohol level rises after an arrest, the DWI charge still stands.

But even with the effects of the Lizzol and Day cases nullified, it hasn't stemmed the backlog of appeals filed with the On-Record Appeals unit at District Court.

Not only are there appeals pending from the period before the DWI statutes were clarified, some defense attorneys have retroactively filed appeals for their clients in earlier cases.

Another reason for the backlog, prosecutors say, is that filing an appeal allows convicted defendants to delay installing an ignition interlock in their vehicle.

The net effect is that the backlog has more than quadrupled, court officials say, and there is little relief in sight.

The unit has two full-time attorneys who gather legal documents, research the appeals cases and present opinions to the case's presiding judge.

"We're thinking of asking for more help there," Duran said to help reduce the backlog and have quicker turnaround on DWI appeals.

But meantime, one of the DWI cases in the current backlog could unleash an additional flood of appeals in the same way Day and Lizzol have, further bogging down the legal system.

State v. Keith Jones, also a 2006 case, was dismissed after Metro Court Judge Wayne Griego agreed with Jones' defense argument that the Albuquerque Police Department roadblock that caught Jones, who is white, was racially motivated and thus unconstitutional.

Jones' attorney, Kenneth Wagner, did not return phone calls for comment on the case.

But at the time of the ruling, he said when Jones was arrested at an APD roadblock on Bridge Boulevard Southwest near the Rio Grande there was a Bernalillo County Sheriff's Department roadblock on Central Avenue at Sunset Road.

The roadblocks, Wagner said then, effectively "cordoned off a predominantly ethnic part of town."

The state appealed the case, which sat with District Judge Carl Butkus for a year before he took himself off it in November 2007.

Now District Judge Stan Whitaker has the case, but he must wait for the On-Record Appeals unit to make its review, research the implications of possible rulings he might make and recommend action, said Duran.

Because of the backlog, Duran said she did not know if the unit will get to the Jones case this year.

Chief Deputy District Attorney Gary Cade said his office has patience and understands the On-Record Appeals unit is swamped with cases.

His office is, too, prosecuting a 13 percent increase in the number of DWI cases filed following arrests and a 55 percent increase in felony DWI cases, for suspects arrested on the fourth or subsequent DWI arrest.

"We're just waiting on a decision from the court," Cade said.

And holding their collective breath that the decision doesn't unleash another flood.