Questionable Accuracy of Breath Test Equipment Leads to DWI Dismissal

Intoxilyzer 5000An Albuquerque, New Mexico man had his DWI arrest dismissed after a police officer was unable to testify in court as to how the breath testing equipment was maintained for accuracy.

The Intoxilyzer 5000 is a hand held device used across the state to determine blood alcohol content in the field. DWI defense attorneys have often challenged the accuracy of the equipment and the base calibrations used for determining if a driver is legally intoxicated.

The case stems from the DWI arrest of Joseph Lizzol who was initially stopped for inoperable taillights. During his trial in Albuquerque, New Mexico Metro Court the arresting officer not able to explain the maintenance procedures of the breath test equipment nor confirm its certification, thus calling its accuracy into question. In response, the court ruled that the results of the breath test were not reliable enough to be entered into evidence. Prosecution successfully appealed the decision in District Court, though Lizzol’s DWI defense attorneys took the case to an Appellate Court and received a favorable ruling.

Prosecutors feel it is not the responsibility of the police to know about the calibration and certification of the equipment. They have expressed concern that a higher burden of proof necessary for a DWI conviction will result from this case.

An Appeals Court Judge, however, said it is more of a matter as to how DWI cases are presented during trial. The law shows two ways to get a DWI conviction and, in the absence of the results of a breath test, testimony, field sobriety tests and other evidence can be used to prove drunk driving.

The ruling will assuredly be referenced repeatedly by DWI defense attorneys, making it necessary for prosecutors to change their case preparation. "It is what you would call very, very good defense work," said Linda Atkinson of the DWI Resource Center.

The New Mexico Attorney General’s Office has forwarded the case to the New Mexico Supreme Court.

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