Wednesday, September 26, 2007

Faulty California DUI breath testing equipment

California DUI criminal defense lawyer news

DUI testing instruments found faulty
DA says hundreds of cases could be affected

Hundreds of Monterey County California DUI / drunk driving cases could be affected by the discovery that the Department of Justice's testing instruments were malfunctioning during two periods in 2006.

Local defense attorneys learned of the problem Friday in a letter from the Monterey County District Attorney's Office. Managing Deputy District Attorney Ed Hazel said Tuesday 355 California DUI cases could be affected.

Monterey County Public Defender James Egar said he is disturbed that the notification came only after a private California DUI cdriminal defense lawyer in Santa Cruz County informed him of the problem and he asked the local District Attorney's Office about it. He said his office represented at least 100 of the affected defendants.

"It is disturbing and something we're going to pursue on each and every one of these cases, that this information was not turned over to us promptly," Egar said.

District Attorney Dean Flippo said the Department of Justice first notified his office there was a problem in April, but had not identified any of the defendants who were affected. Flippo's office was not able to determine the names of the California drunk driving defendants until early June and then had to research their case numbers and California DUI criminal defense attorneys.

"It was the work doing it," that delayed notification, he said. "I do think we should have done it faster though."

Letters obtained by The Herald indicate the faulty equipment was first revealed in October 2006, when the state Department of Health Services notified the Department of Justice laboratory in Watsonville that tests showed the instruments were testing slightly high.

Juan Bergado, the lab's supervising criminalist, said "we had to notify the district attorneys' offices right away."

The lab does blood-alcohol testing for Santa Cruz, San Benito and Monterey counties. Its instruments are tested for accuracy periodically by the state Health Department.

Bergado said the tests showed the instruments tested high from April to August 2006 and low from September 2006 until January. In each instance, he stressed, just one of four control samples was out of range and that sample was "unacceptable" by only .01 percent.

However, because blood-alcohol levels are tested up to one-thousandth of one percent, Hazel said, even that small discrepancy could move someone into or beyond the legal limit.

Bergado said the Watsonville lab does its own control tests on its equipment each time a sample is analyzed and is confident that the results are accurate.

Nevertheless, he said, an abnormal result from the Health Department monitoring is "pretty unusual."

"It hasn't happened in a pretty long time," he said.

Bergado said in most of the affected cases, the blood samples are still available for retesting.

Egar said his office has just begun to analyze the status of the affected cases. Most, he assumed, have already been prosecuted.

He and other California drunk driving criminal defense attorneys said they are notifying their clients to determine how they want to proceed. Salinas criminal defense lawyer Frank Dice said three of his clients were affected and he knew of another private lawyer who had six clients in the group.

Under state law, Hazel said, results from testing instruments that are later showed to be "out of whack" are admissible in court. In such instances it is up to the judge or jury to decide if the malfunction is serious enough to present reasonable doubt of guilt.

Even a defendant whose blood-alcohol level is tested at .07, below the legal limit, he said, can be found guilty of California DUI / driving while intoxicated, which carries the same penalties.