There are fairly basic requirements for admission of the breath alcohol score into evidence at trial.  However, these basic rules are on occasion violated by the officer.

In case of violation of the rules, the breath test score will not be allowed in court.  This does not necessarily mean the case is dismissed which will be discussed below.

In cases where the rules are violated, the breath alcohol score can be excluded from evidence.  In cases where the breath score is .08 or above, this is very beneficial to the defense of your DWI charges.  The harder decision is when the score is below .08.

Requirements of DWI Officer and DWI Testing Equipment

Here are the requirements for admission of the breath score at trial.  This is something that your DWI attorney should address during the course of the defense of your DWI charges.

  • The Defendant’s mouth was checked to ensure there was nothing in the mouth,
  • Related to the first requirement, there must be a 20 minute 
“deprivation period” where the defendant is observed with nothing to eat, drink or smoke,
  • The officer conducting the breath test must be certified by New Mexico Scientific Laboratory Division for operation of the Intoxilyer machine,
  • The Intoxilyer machine must be certified by SLD,
  • There must be no apparent malfunctions during the test,
  • The machine’s calibration was between .07-.09,
  • Two subject samples were obtained, or if the first two were more than .02 apart, then a third sample was obtained that was within .02 of either of the first two samples.

Each one of the requirements must be met.  Whether or not they were met will be given significant attention in reading the DWI incident reports, the interview of the DWI officer, the documents related to the equipment and finally at trial on cross examination of the police officer.

Inadmissibility of Breath Score Does Not Mean Dismissal of Charges

It is not all that uncommon that the breath score is excluded from evidence at trial for any number of reasons, many times related to violation of one of the requirements above.  However, exclusion of the evidence does not mean that the case is dismissed and you win your case.  A trial may be, and generally is, still conducted.

The reason the district attorney can move forward even without a breath score showing that your breath alcohol level was at .08 or above is that New Mexico follows an “impaired to the slightest degree” standard.  This means that you can still be found guilty of DWI even if your breath alcohol score was below the .08 level.

Impaired to the slightest degree is really no standard at all.  It comes down to if the officer says you were impaired, you are getting charged no matter what your breath alcohol level.  Not only are you getting charged, but also depending upon the judge, there may be a very good chance that you will lose on this standard.

Bench v. Jury Trial

You may be asking, as do most DWI attorneys, how can this be? To begin, the outcome will often differ dramatically depending upon whether you have a bench trial (just the judge) or a jury trial.  You have a much better chance of winning at below .08 with a jury than with some of the judges (not all).

So now you may ask why you would ever have a bench trial rather than a jury trial.  Unfortunately, for first time simple DWI which is the vast majority of DWI cases, you have no right to a jury trial.  Your only option is a bench trial.

The outcome then is in the hands of the judge alone.  For most judges, this is not necessarily a horrible thing although a jury is generally preferable.  However, for a select few judges, you can find yourself at a severe disadvantage at trial.

Seek Experienced DWI Counsel

This is only a cursory discussion of the issue.  The admissibility of the breath alcohol score can get immensely complicated invoking not just criminal law and evidence but also science and chemistry.  The issues surrounding the impaired to the slightest degree standard are significantly less complicated but confusing nonetheless for most non-attorneys.

It is important that you seek the guidance of an experienced DWI attorney to guide your through this process with the best chance. Collins & Collins, P.C. can be reached at (505) 242-5958 .