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Thousands of DUI tests challenged because of faulty test on equipment

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 focuses 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."

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