Court OKs Use of Drunk-Driving Test

A state appeals court has ruled that a hand-held gauge the size of a personal radio can be used to convict drunk drivers, a decision that could sound the death knell for a popular DUI defense.

The 2nd District Court of Appeal found that results of the preliminary alcohol screening test that California Highway Patrol officers give to suspected drunk drivers are admissible in court.

For five years, CHP officers have asked suspected drunk drivers to blow into the Alco-Sensor to measure blood-alcohol levels at traffic stops. Suspects are required to take more precise blood-alcohol tests, usually administered at the nearest jail.

Defense attorneys have argued successfully in court that the sensor should not be allowed as evidence because it was approved by lawmakers to screen suspects and not as a tool to precisely determine the degree of a driver’s intoxication.

But 2nd District justices said in a decision published this week 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 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. 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 to comment. Bury’s appellate attorney, Lauri Brown, did not return calls seeking comment.

“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.”