Attorney who gets client dismissed from DWI charge says Breathalyzer machines have issues

Attorney Justin B. Underwood celebrated a victory in court Tuesday afternoon.

His client, who was charged with DWI in 2016 had his case dismissed.

“We found out in late 2017 that the machine at the Central Regional Command Center had been replaced due to it malfunctioning. They installed it in the middle of 2016, it was taken off line for malfunction in 2017 and sent back to DPS. DPS sent it back to El Paso, it was here a week and they sent it back to the manufacturer because it was malfunctioning,” Underwood said.

It was that information that prompted Underwood to file an open records request on all the Breathalyzer machines used in El Paso County.

“We have found some things that are worth noting to the people of EL Paso,” Underwood said.

Underwood provided ABC-7 with a report of of the findings.

In March of 2016, a Breathalyzer machine at the Pebble Hills Regional was connected to a server. Three months later the machine showed a simulator communication failure. The report states in December the machine was connected to an uninterrupted power supply.

In April of 2016 a Breathalyzer machine was installed at the Montana Sheriff’s Office station. It was removed from the station due to improper calibration. In June, it was installed at a Vinton substation. The report does not state if the machine was calibrated before being used in Vinton.

The report shows another Breathalyzer machine used in Clint was installed and removed three months later because of an inability to boot up. The machine was updated two months later.

At the Northeast Regional Command Center a Breathalyzer machine was removed from service due to the inability to boot up. Maybe due to power outage from the strong winds the report states. The machine was replaced the same day.

“Why isn’t anyone telling us when these machines malfunction. Why isn’t anyone telling the district attorneys these machines are malfunctioning,” Underwood said.

Although the reports do not indicate DWI offenders have been falsely convicted, Underwood said in some cases officers are not reporting some of the problems.

“When you have Socorro police officers and El Paso police officers who do not include stuff in the report or in the evidence, how are the lawyers supposed to know this stuff,” Underwood said.

ABC-7 contacted the district attorney’s office and officials said the case dismissed was not because of a malfunctioning Breathalyzer machine but because of a few other factors in the police officer’s statement and the case.

The District Attorney’s office sent ABC-7 this statement:

“We are in constant communication with Martha Mendoza and Gus Avila, who are the supervisors for the Intoxilyzer machines to ensure the machines are working properly. If you have open records information on the machines that means that tests are constantly run on the machines to ensure they are working properly. Martha and Gus are extremely experienced and well-qualified to do the work they do and we have full confidence in their work.”

Underwood expressed concern in the amount of issues the machines are having.

“All of these machines are malfunctioning and doing the same thing … Why? Why are we having problems with these machines,” Underwood said.

District Attorney Jaime Esparza told ABC-7 law enforcement will continue using the Breathalyzer method along with other methods used to detect someone who could be driving while intoxicated.

“We have full confidence in the Breathalyzer results and will continue to use the Breathalyzer to determine a driver’s level of intoxication. The results of the Breathalyzer is not the only evidence of a person’s intoxication. We consider the traffic violation, the appearance of the driver, the driver’s behavior at the point of arrest and their performance of the field sobriety tests,” District Attorney Jaime Esparza said in a statement.

An official with the district attorney’s office also tells ABC-7 the Breathalyzer machines are maintained monthly.