Breathalyzer Not Only Option

By Jeff Proctor
Copyright © 2006 Albuquerque Journal; Journal Staff Writer

Prosecutors aren't trying hard enough to get convictions in drunken-driving cases when breath-alcohol tests don't get admitted as evidence, according to state Court of Appeals Judge Ira Robinson.
State law provides a second avenue, in addition to breath-alcohol content, for prosecutors to nail drunken drivers: the "impaired to the slightest degree" standard.
It allows prosecutors to secure a conviction using indicators such as visual signs of impairment, erratic driving and field sobriety tests— rather than a blood-alcohol level higher than the presumed level of intoxication of 0.08 percent.
"I see prosecutors essentially relying too much on the breathalyzer," Robinson said in an interview. "When the machine prints out a score that is over 0.08, everyone says, 'Whoopee! We win!' And when the machine says it's less than 0.08, everyone gives up and the case gets dropped.
"Sometimes, you just need to learn to push a little harder to grab hold of the justice that's right in front of your face."
Robinson's comments came in the wake of a couple of recent court cases concerning the admissibility of breathalyzer results, which prosecutors have said could make it more difficult to get convictions.
Gary Cade, who oversees Metropolitan Court prosecutions for the Bernalillo County District Attorney's Office, said all of his attorneys are trained to proceed on both theories— the breath test and impaired to the slightest degree.
However, Cade said, many cases don't lend themselves to the slightest degree standard. For example, a case where a driver is stopped at a DWI checkpoint gives the officer no chance to observe erratic driving.
"You can only prosecute on a theory that is supported by evidence," Cade said.
Robinson's views surfaced in a concurring opinion he wrote for New Mexico vs. Mark Joseph Lizzol.
The appeals court overturned a District Court decision that found Lizzol, 26, guilty of DWI. The case was heard in District Court after a Metro Court judge ruled Lizzol was not guilty.
The state Attorney General's Office has asked the Supreme Court to review the ruling.
At issue was whether the officer who arrested Lizzol could testify to the accuracy of the Intoxilyzer 5000 machine used to test Lizzol's breath-alcohol content. The Court of Appeals ruled the officer "had no knowledge as to the certification of the machine other than that he saw a replica of a certification card."
Robinson told the Journal that he "technically could've just as easily dissented."
The judge wrote that the "reliability of the Breathalyzer machine was not established ... The (Metro Court) judge correctly suppressed the breath-alcohol test results, but he should not have acquitted (Lizzol) or dismissed the charges.
"The district attorney still had his other option to convict and he had already presented sufficient evidence to prove that (Lizzol) was under the influence of intoxicating liquor.
"...(Lizzol) had 'extremely' watery eyes and was unsteady in getting out of his vehicle. He had a strong odor of alcohol on his breath; and, more importantly, (Lizzol) admitted he had a 'few beers' and a 'Bacardi' ... (Lizzol performed poorly on the field sobriety tests ..."
Cade isn't sure the prosecutor had enough evidence to convict Lizzol on the slightest degree standard. He points out that, while Lizzol admitted he had been drinking, and the arresting officer testified to seeing signs of impairment, the initial stop was made because Lizzol's tail lights weren't working.
"So there was no observation of bad driving in this case," he said. "Could (the prosecutor) have pursued a conviction on impairment? I'm just not sure."
Proving someone was impaired to the slightest degree can be a simple task, Cade said.
But getting a judge or jury to accept the theory in the first place isn't so easy, he said.
"It's the CSI effect," Cade said. "There's a societal belief and an acclimation for jurors that without scientific evidence— in this instance a breath score of 0.08 or higher— you can't prove someone was drunk."
When prosecutors don't have all their ducks in a row— observation of erratic driving, visual signs of impairment such as bloodshot or watery eyes plus failed field sobriety tests— the slightest degree theory can fall apart, Cade said.
Moreover, he said, experienced, high-paid defense attorneys are skilled at picking apart the theory. Blood-shot, watery eyes, for example, can be chalked up to allergies. Erratic driving can simply be the result of tiredness. Or a sprained knee can cause someone to fail a field sobriety test.
"That's not to say our attorneys are going to back down," Cade said. "I can't speak for other counties, but our prosecutors are instructed to proceed on every single theory they can support with evidence. It's just a matter of having that evidence."