- Associated Press - Friday, June 5, 2015

ALBUQUERQUE, N.M. (AP) - An Albuquerque man convicted six times for drunken driving can have his state driver’s license restored despite small traces of alcohol found in a court-ordered device that prevents him from starting his car until he blows into a device, an appellate court ruled this week.

In an opinion issued Wednesday, the New Mexico Court of Appeals said a lower court erred when it denied a petition by Monte DeMichele, 53, to restore his regular license. The three-member appeals court said a district judge failed to consider DeMichele’s explanation that the small reading of alcohol in the interlock device, which prevents the car if alcohol is detected, was probably result of him being an insulin-dependent diabetic who produces sugar alcohol in his system.

According to court records, DeMichele was convicted six times of driving while intoxicated between 1990 and 2005. But after an interlock was placed in his vehicle and DeMichele said he was an active participant in Alcoholics Anonymous for eight years, he petitioned to have his license restored.

DeMichele had been driving using a state interlock license.

A district court judge ruled last year that because interlock records showed small traces of alcohol, DeMichele didn’t meet good cause for a license restoration.

New Mexico Court of Appeals Justice Cynthia Fry, writing for the court, said the district judge failed to consider uncontested evidence, including DeMichele not facing any further drunken driving violations in more than eight years. “We therefore conclude that there is no reasonable view of the information presented to the district court that would permit a conclusion that (DeMichele) failed to establish good cause,” Fry wrote.

Joan Waters, a lawyer for DeMichele, said she couldn’t comment on the court’s decision because she hadn’t read the opinion.

A spokesman for the New Mexico Taxation & Revenue Department, the agency that oversees the state’s Motor Vehicle Division, did not immediately return emails and phone messages from The Associated Press.

New Mexico Attorney General Hector Balderas said he would support any effort by the Taxation & Revenue Department to continue to fight the case.

“Repeat DWI offenders continue to be a significant threat to public safety in New Mexico and we must ensure our laws are appropriately enforced, and I will support the proper filing of further legal action,” Balderas said.

In New Mexico, it is illegal to drive with a breath or blood-alcohol concentration of 0.08 or more.

Those convicted of a first offense DWI in the state face fines, court costs and possible jail time. Offenders also are ordered to undergo treatment and install ignition interlock devices on vehicles.

Subsequent DWI convictions result in increased fines, more jail time and a longer license revocation.

However, the Governors Highway Safety Association said New Mexico is one of a handful of states without a repeat offender law that calls for federally mandated minimum penalties to individuals convicted of a second or subsequent impaired driving offense.

States that failed to enact a repeat offender law see a percentage of their National Highway System funds transferred to a program aimed at improving driver behavior and reducing traffic deaths.

The appeals court’s ruling reversing that decision comes as New Mexico has launched several campaigns against drunken driving.

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Follow Russell Contreras at https://twitter.com/russcontreras .

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