Results of CHP Liquor Sensor Admissible, Court Says

A state appeals court ruled Thursday that a hand-held gauge the size of a Sony Walkman was properly used to convict a Ventura man of drunk driving, a decision that could sound the death knell for a popular DUI defense.

The 2nd District Court of Appeal in Ventura found that results of the Preliminary Alcohol Screening test that California Highway Patrol officers give to suspected drunk drivers are admissible in court.

For the last five years, CHP officers have asked suspected drunk drivers to blow into the “Alco-Sensor” to measure blood-alcohol levels at the scene of a traffic stop. Suspects are required to take more precise blood-alcohol tests later, usually at the nearest jail.

Defense attorneys have argued successfully in court that the sensor should not be allowed as evidence, since it was approved by lawmakers to screen suspects and not as a tool to determine the exact drunkenness of drivers.

But the appeals court ruled in a published decision that juries can use the Alco-Sensor results to convict drivers, even without more reliable backup tests.

“The Alco-Sensor is so important for the prosecution of drunken driving,” said Ventura County Deputy Dist. Atty. Kevin DeNoce, who argued the test case before the Court of Appeal.

DeNoce said admissibility of Alco-Sensor results will undermine a popular defense argument that suspects’ alcohol-blood levels were below the legal limit when stopped even though they were later found to exceed it. That is because it takes time for alcohol to seep into the bloodstream.

For instance, suspects measured with a blood-alcohol level of 0.08--the standard for drunk driving--at the police station have successfully argued that their level was significantly lower when they were stopped.

In the Ventura County test case, CHP officers stopped Brian Keith Bury, 24, as he drove his car slowly and erratically on the Ventura Freeway two years ago. Bury submitted to two Alco-Sensor tests, which indicated he had a blood-alcohol level of more than 0.17.

At the County Jail, Bury refused to take any further tests. During Bury’s trial, Ventura County Superior Court Judge Charles W. Campbell Jr. allowed the jury to consider the Alco-Sensor results.

A jury convicted Bury of drunk driving for the fifth time in five years, and he was sentenced to four years in prison. His attorneys appealed, arguing that the Alco-Sensor was never intended to be used as a “prosecution tool.”

Bury’s trial lawyer, Steven Powell, declined comment Thursday. And his appellate attorney, Lauri Brown, did not return telephone calls.

“The ruling doesn’t surprise me, given the political climate,” said Ventura defense attorney Jay Johnson, who specializes in drunk-driving cases. “There are three crimes I tell my clients that they don’t want to get convicted of: rape, child molestation and drunken driving, because they are fighting an uphill battle against public sentiment.”