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Ruling may affect 4 years of DUI cases...

By Vivian Wakefield
Times-Union staff writer

Thursday, May 31, 2001

Story last updated at 11:43 p.m. on Wednesday, May 30, 2001

A Duval County judge's ruling that breath tests in DUI cases for a four-year period must be thrown out is raising uncertainty about the status of hundreds of charges and convictions.

About 2,500 breath tests were given between Jan. 1, 1997, and the fall of 2000 in the county to motorists to determine their blood-alcohol level and driving-under-the-influence charges.

County Judge Brent Shore ruled May 4 that the test results during that time could not be used in court because they were scientifically unreliable.

But the impact of Shore's ruling on DUI cases is subject to debate in the legal community, with some saying it affects hundreds, if not thousands, of cases in the Jacksonville area and statewide. Prosecutors contend it affects only those cases that are pending in which the breath test was the strongest piece of evidence.

According to the ruling, it affects only DUI misdemeanor cases or felony DUI (it becomes a felony the fourth time the driver is charged with DUI). Other DUIs that are felonies -- DUI-manslaughter and DUI-serious bodily injury -- are not affected by the ruling because blood tests are used to determine the defendant's blood-alcohol level in those cases, not breath tests.

The strength of the breath tests became an issue after defense attorney David Robbins investigated how a Florida Department of Law Enforcement analyst approved the alcohol reference solution used to inspect the Intoxilyzer breath-test machine.

Robbins discovered that the analyst used a margin of error that was greater than allowed. The Jacksonville Sheriff's Office now uses a different solution.

In February, the state's main witness in DUI cases testified in a deposition that the work done by the analyst was unreliable and it could not be defended in a court of law. That deposition led to Shore's ruling.

Robbins said many people convicted of DUI are going to ask the courts to set aside their sentences, let them withdraw their pleas of guilty or no contest and start their cases over again.

"The ramification of DUI convictions are too strong," said Robbins, citing the permanent criminal record it creates and the impact DUI convictions have on a motorist's driving record and insurance.

The State Attorney's Office has already been inundated with telephone calls from people who pleaded guilty to DUI and want to know if prosecutors will wipe away their convictions.

"We're telling them they need to contact a lawyer, but it doesn't mean the conviction will be set aside," Assistant State Attorney Tatiana Salvador said.

Chief Judge Donald Moran Jr. said traditionally people cannot withdraw guilty pleas because in entering the pleas, they gave up any defenses they may have had.

But Robbins argues that the defendant does not give up a defense "based on the fact that the government failed to tell you that their evidence is unscientific."

He is using that approach in trying to convince local judges to allow defendants to withdraw their guilty pleas. Although one county judge has made a partial ruling, no full ruling has been made on the issue, Robbins said.

Salvador, county court division chief, said Shore's ruling affects only 60 pending cases but none of them has been dropped so far because of the ruling.

"We are going over each case individually and seeing if we can proceed without the breath test," she said. "If we can, we're proceeding as normal."

If the breath test is the only strong evidence in the case, Salvador has advised prosecutors to reduce the charge to reckless driving or drop the case.

But the breath test is not the only evidence prosecutors can use.

In fact, it's only given after an arrest is made and the police officer established probable cause based on factors such as erratic driving, alcohol on the breath, bloodshot eyes or failing a field sobriety test.

Prosecutors rely on the police officer's testimony to prove those factors in addition to eyewitness accounts or a videotape of the defendant's behavior.

While prosecutors contend that DUI cases can be proven without the breath test, Robbins points out that it's the central part of the case.

Meanwhile, officials with Mother's Against Drunk Driving were not pleased with Shore's ruling to suppress the breath tests.

"You're putting people who have been drinking or caught drinking back on the road," said Linda Arklie, president of MADD Northeast Florida.

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