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Hundreds of DUI Cases in Doubt After Lab Mix-Up

Courts: Defense lawyers seek dismissals, arguing county wasn't licensed to conduct breath tests. Prosecutors call results 'reliable.'

May 29, 1997|TRACY WILSON | TIMES STAFF WRITER

An ongoing dispute over the validity of drunk driving tests conducted by the Ventura County crime lab has sparked a flurry of legal challenges, prompting lawyers to demand the dismissal of possibly hundreds of cases.

Appearing in court Wednesday, half a dozen local defense attorneys urged Superior Court Judge Steven Z. Perren to throw out numerous misdemeanor drunk driving cases filed between November and March.

Their contention is that the crime lab did not have the authority to oversee alcohol breath tests and later defied a state health department order by continuing to do so. They also maintain that the lab withheld information from defense attorneys.

Such violations, they contend, are grounds for dismissal.

But prosecutors now say that the lab never lost its license to conduct forensic and breath alcohol analysis, adding yet another layer of dispute to the hotly contested issue.

Previously, county sheriff's officials said its crime lab lost its license to conduct alcohol, breath and urine analysis associated with alcohol-related driving cases.

"I am not sure which is more incompetent," criminal defense attorney Kevin DeNoce said Wednesday, "not having a license or not knowing if you have a license."

Now, all parties are turning to the court to resolve questions surrounding the licensing snafu and to determine whether key evidence in potentially hundreds of cases has been compromised--a task Perren described as nothing short of a procedural nightmare.

"I have a courtroom full of people here with a bunch of cases," Perren said at the beginning of the two-hour hearing. "As I sit here now, I don't even know what these matters are, so I have to do inventory."

As of Wednesday morning, only two defense lawyers had filed court papers challenging drunk driving cases in which alcohol breath tests were supervised by the crime lab.

Several other attorneys piggybacked on the brief filed by DeNoce three weeks ago, though they indicated plans to file motions of their own and were ordered by the judge to do so by next week.

Meanwhile, Assistant Public Defender Jean Farley told the court that attorneys in her office have been reviewing misdemeanor drunk driving cases dating back to November and plan to file their own legal challenges.

"We have them in the hundreds," she said.

Outside the courtroom, Farley told reporters that five public defenders have been working nights and weekends reviewing each drunk driving case filed during the period in question to determine which involved evidence handled by the crime lab.

"Every single lawyer that tried a case is working on motions for a new trial," she said, adding that in a three-hour period this week she received 34 telephone messages from people asking about the potential impact on their cases.

"It's a nightmare," she said, "a huge, time-consuming nightmare."

One case certain to be challenged, she said, involved a motorist whose blood alcohol level after a breath test was reported at .09, slightly above the legal limit for driving.

That test may be unreliable, because one of the crime lab's technicians overseeing the breath analysis equipment at the time failed a routine state proficiency test in calibrating the machine's accuracy.

The crime lab had several other technicians who had passed the proficiency test and were qualified to oversee the tests, but whose names were not on the lab's license.

Until such issues are resolved by the court, Farley said, public defenders have been advised to tell their clients with cases now pending to plead not guilty to drunk driving charges because their breath tests may be wrong.

That will inevitably result in trial delays, court continuances and more cases being challenged, because about 98% of drunk driving cases never go to trial, she said.

"It shatters your whole faith in the system," she said.

But prosecutors say despite a mix-up over the licensing, breath results overseen by the lab are "reliable and accurate."

"Although the crime lab made mistakes," prosecutors concluded in their motion in support of the test results, "the people's interest and ability in prosecuting these DUI's should not be thwarted."

The licensing problem started last November when the Sheriff's Department lost its forensic alcohol supervisor, Norm Fort, who had worked in the crime lab for more than a decade.

Under state law, the department had 90 days to replace Fort with another state-licensed supervisor. But the county failed to meet the March 19 deadline, officials said.

About two weeks passed before the state took over urine and blood testing of local cases at its Santa Barbara lab. In the interim, though, the Ventura County lab continued to oversee breath tests for suspected drunk drivers.

Defense attorneys argue that this was contrary to a state order. But in a motion filed Wednesday, prosecutors say the crime lab was told only that it "should" not perform breath tests--not that it was prohibited from doing so.

Since then, the crime lab has made changes in its testing protocol and received a new license that expires at the end of the year.

Attorneys filing legal challenges to breath tests were ordered to file their paperwork by Wednesday, and a hearing is scheduled before Perren the next day.

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