Judge OKs Breath Test; Ruling May Affect 300 Cases

In a decision that could affect the outcome of about 300 drunk-driving cases, a judge on Monday refused to toss out breath-analyzer evidence allegedly showing that an Oxnard man’s blood-alcohol level was over the legal limit.

Judge Edward F. Brodie ruled Monday that the Ventura County crime lab may have been operating in violation of state law, but it was fully licensed when Rey David Diaz was arrested April 5 for driving under the influence.

The public defender’s office last week argued that breath tests performed on Diaz by Oxnard police were invalid because the sheriff’s crime lab--which oversees breath testing for all police agencies in the county--had its license revoked March 19.

That violated Diaz’s constitutional rights to due process and equal protection under the law, Deputy Public Defender Brian Vogel told the court Thursday in a hearing on the eve of trial.

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

As Diaz’s trial began Monday morning with jury selection, Brodie sided with prosecutors on that count.

But Brodie agreed with Vogel’s allegations that the lab was violating state laws.

The judge ruled that there is evidence that the crime lab was operating without a fully certified forensic alcohol specialist, using outdated testing methods and failing to double-check the strength of alcohol solutions used to ensure the accuracy of its breath-analysis machines.

However, Brodie ruled that those violations could only apply to the weight that jurors give Diaz’s Intoxilyzer results, and were not strong enough to bar the evidence from being introduced altogether.

Brodie’s rulings could have broader implications in the weeks to come, when attorneys go to battle over an estimated 300 drunk-driving cases that the crime lab handled between December and May, the period when its license was in question.

Prosecutors have fought the defense motions in the Diaz case, alleging that the public defender’s office was using this single DUI to fish for evidence to help them get similar evidence thrown out in the larger group of cases.

On Monday, Deputy Dist. Atty. Peter Kossoris declined to say much about Brodie’s ruling that the lab was operating with a valid state license, except to note: “It certainly won’t hurt” the district attorney’s case.

Superior Court Judge Steven Z. Perren will hear many of the same arguments Aug. 19, when public defenders and private defense attorneys will seek to have breath-analyzer evidence thrown out in the other cases.