Defense Seeks to Exclude Test Results in DUI Case

Deputy Public Defender Brian Vogel argued in court Thursday that the Ventura County Crime Lab was violating state law when it continued overseeing breath tests on drunk-driving suspects even after its 90-day license extension expired in March.

But Deputy Dist. Atty. Peter D. Kossoris countered that waffling by state regulators essentially forced the lab to keep operating in order to protect suspects’ constitutional rights.

Municipal Judge Edward F. Brodie said he will wait until Monday to rule on the public defender’s motion to toss out breath-test results in an Oxnard drunk-driving case.

It appeared “that the lab was caught between a rock and a hard place,” Brodie said. But he said he wants to reserve judgment on the motion until he can review evidence and case law precedents cited by the public defender’s office.

Brodie’s ruling on the April 5 drunk-driving arrest of Oxnard resident Rey David Diaz could have major implications in a larger court fight that is brewing over the alleged licensing improprieties at the crime lab.

Ventura County defense lawyers have challenged about 300 drunk-driving cases that were handled by the lab between December and May--a period when even lab officials believed the facility’s license was in jeopardy, if not suspended outright.

Prosecutors have argued that the license was never suspended, merely that its status was thrown into confusion by the sudden resignation in November of Forensic Alcohol Specialist Norm Fort and the way the state Department of Health Services handled the subsequent scramble to replace him.

“I think the lab was acting in good faith” when it chose to continue breath testing in defiance of a March 19 letter from the department telling the lab to stop testing, Kossoris said.

Failing to offer breath testing as well as blood and urine testing for alcohol content would mean denying drunk-driving suspects their constitutional rights, he said.

“They were caught in a dilemma, and the dilemma was: Do you do what they did and take a lot of criticism?” Kossoris said. “Or do you stop breath testing? And then you would have had defense attorneys coming into court and complaining about that.”

Kossoris also argued that the testimony in the six-day hearing on the motion should only address the weight the jury in Diaz’s trial will give to crime lab evidence--breath test results allegedly show that Diaz’s blood-alcohol level exceeded the legal limit--and not whether the evidence is admissible in court.

But Vogel argued that the results should be excluded altogether because the lab was violating state law by continuing to do breath tests and oversee breath-testing programs, such as the one under which Oxnard police arrested Diaz.

Vogel said that the lab operated without a certified forensic alcohol specialist for several months in violation of state laws governing crime labs. He also cited meetings in which lab officials decided to ignore the March 19 letter.

“Law enforcement personnel got together and decided they were going to break the law,” he said. “ . . . And in so doing, they obtained evidence illegally. And this type of conduct is not, and cannot, and should not be sanctioned in any court in the United States of America. It essentially amounts to a willfully intentional and systematic violation of state law.”

Brodie is scheduled to rule on the motion at 9 a.m. Monday.