Thousands of DUI tests challenged because of faulty test on equipment By
Paula McMahon
Staff Writer January 11, 2005 Thousands of DUI arrests made by the Broward Sheriff's Office and Davie police could face legal challenges because operators broke the rules when they tested the departments' breath analysis equipment, a defense attorney who specializes in drunken driving cases said Monday. Technicians ran the monthly tests using tap water instead of distilled or deionized water, as required by the Florida Department of Law Enforcement, prosecutors and the agencies admit. "Thousands of people in this county go to jail and lose their licenses based on what these machines say. The police made up these rules, and they should be following them," said Carlos Canet, a lawyer with the Miami law firm of Essen & Essen, which has a statewide reputation for DUI defense. Canet uncovered the problem about two months ago during a deposition. While he was questioning one of the machine's operators about other issues, he found out that the state's alcohol testing program rules were not being followed. He recently began to raise the issue in court, but no formal papers have been filed yet, and there have been no legal rulings on the question. It's unclear at this stage whether any convictions could be thrown out because of the problem. The Broward State Attorney's Office plans to notify attorneys for thousands of clients arrested by the Sheriff's Office and Davie during the past 3 1/2 years. Prosecutors said they are concerned about the issue, but they do not think it is significant enough to overturn convictions. "From our standpoint, we do not think this kind of challenge will be upheld by the courts," said Lee Cohen, the Broward prosecutor in charge of county courts. "But we are going to research the matter extensively. We're not going to rely on our own suppositions on this." |
  |
|||||||||||
|
They
will send out notifications for DUI cases involving breath tests
on defendants arrested by the Sheriff's Office between June 1, 2001,
and Aug. 13, 2004, and for Davie arrests made between June 1, 2001,
and Dec. 3, 2004.
Cohen said there appears to have been a technical violation of the rules. To overturn a case, the law requires a substantial violation. Canet said defendants could use the issue to appeal convictions or withdraw pleas. And it could be a viable argument in cases that are not yet resolved. The issue involves how monthly tests are run on the breath analysis machines. FDLE does its own annual tests on all of the machines in the state, but the agency also requires each department to do monthly tests. The yearly FDLE tests were done correctly, prosecutors and the agency said, but the two departments did not follow the appropriate procedures for the monthly ones. The test involves using a simulator that heats up distilled water to a specific temperature and delivers a burst of steam into the machine. Samples of distilled water and a mixture of distilled water and acetone are used to ensure that the machine registers the samples as alcohol-free. Other samples containing alcohol are also tested. FDLE used to allow tap water to be used in the tests. But the agency changed the rules effective July 1, 2001, so that testing standards are uniform around the state and because of concerns that tap water could damage the simulators, said Laura Barfield, FDLE's program manager for alcohol testing. "At this point, we're not sure, when that guideline changed, why our people didn't spend a dollar and buy a jug of distilled water," said Jim Leljedal, a Sheriff's Office spokesman. The Sheriff's Office makes thousands of DUI arrests each year, the majority of which involve breath tests, Leljedal said. He could not give an exact number of arrests. Davie police made 433 arrests for DUI in 2002, according to the most recent figures available on the department's Web site. Lt. Bill Bamford, of Davie police, said his agency will correct any discrepancies. Barfield, the FDLE program manager, said her agency will investigate and possibly take disciplinary action against any operators who did not follow the rules. Discipline can range from retraining to revoking the person's permit, she said. Barfield said she also will conduct a research project for Broward County to test her opinion that using tap water would not have affected the test results. |
||||||||||||
|
||||||||||||
