Richard Roth, a physicist and ignition interlock advocate, is working to close loopholes in the state's drunken driving laws.

Although New Mexico has a model law mandating the device for one year after a first drunken-driving conviction, some offenders slip through the cracks by claiming that they don't have a car and aren't driving.

Many of them do, in fact, continue to drive, he said, even though they sign an affidavit saying they aren't. And Roth said they are six times more likely to be rearrested on drunken driving charges than interlocked DWI offenders.

Roth believes the best way to make them comply is to require them to lease a home photo Breathalyzer, in lieu of an ignition interlock. As a condition of probation, the DWI offender would have to prove sobriety twice a day by sitting in front of the unit, which takes a photograph of them, then blowing into a device.

"If the choice is between that and an ignition interlock, most will come in and say, 'Judge, I got access to a car.' " Roth predicted. The cost would be the same, he added, about $2.30 per day. The home Breathalyzer would be serviced by interlock providers and violation reports sent to court monitors. Moderate drinking would not be prevented.

Roth was hoping that this measure, which also has been introduced in the past, will be added to one of the dozen or so DWI bills introduced in this session of the Legislature. But so far it hasn't.

Among the bills pending in the Legislature are those that would increase DWI penalties, allow vehicle forfeiture for driving on a revoked license for DWI and correct language in the law concerning the leasing of interlock devices for indigent offenders.

Another bill addresses the increasing demand by defense lawyers for the testimony of analysts from the Scientific Laboratory Division. The U.S. Supreme Court, in a New Mexico case, said last summer that the federal Constitution doesn't allow prosecutors to introduce laboratory test results through someone who didn't perform the test.

Roth said that he is not actively lobbying for his measures to close loopholes this year because he doesn't think he has a chance of getting things through.

Most of the DWI bills are languishing in committees. One bill to increase penalties for drinking and driving got a "do pass" from the House Consumer and Public Affairs Committee and the Senate Public Affairs Committee, and is pending in the Judiciary Committee of both houses.

In addition to the photo Breathalyzer, Roth is in favor of requiring that a vehicle driven by a DWI offender be immobilized or interlocked between arrest and adjudication. Each year, he said, more than 2,000 offenders have a subsequent DWI arrest before being adjudicated for the previous one, and about 1,900 offenders are never adjudicated (sometimes because they run away). Another measure he supported last year was a bill to ensure an accurate alcohol content measurement is done for all arrested offenders. Some are exempted from the requirement.

Roth said he opposes long jail terms for repeat offenders such as those proposed in House Bill 108. "That's very expensive for very little benefit," he said. "We just can't afford that."

He said jailing first-time offenders has a greater deterrent effect on drinking and driving. First-time offenders represent 55-75 percent of those arrested for drunken driving.

Rep. Tim Lewis, R-Rio Rancho, sponsor of a bill increasing penalties for DWI and a bill to amend the habitual offender statute, said he thinks the chances of passing the measures are "much better this year." He also noted that both bills don't come into play until the fourth conviction when "These people have been in the system for quite a long time anyway. They've already cost [the state] money."

Lewis added, "I'm a freshman, so I have high hopes. But reality could set in."

While New Mexico has some good DWI laws, other societies are more serious, Roth said. He pointed out that Ireland recently lowered the level at which someone is presumed to be drunk to .05 from .08, in line with many countries in Europe. And in December, according to an online report, France announced that beginning in spring 2012 every driver will have to have a Breathalyzer kit in his or her car.

Contact Anne Constable at 986-3022 or aconstable@sfnewmexican.com.