DUI rulings awaited Breath tests questioned

By Vivian Wakefield
Times-Union staff writer

Wednesday, June 28, 2000

Story last updated at 12:33 a.m. on Wednesday, June 28, 2000

For two days, prosecutor Shauna Wright and defense attorney David Robbins squared off in front of a panel of Duval County judges over the reliability of breath tests given to thousands of drunken driving suspects for two years.

At issue were hundreds of pending DUI cases that resulted from those tests, the credibility of which was questioned last year after authorities learned a state lab analyst bent state rules in analyzing a solution that measures the accuracy of the tests.

As a result, Duval County's 13 county judges suppressed the breath test results while agreeing to conduct a hearing in which Wright and Robbins would debate whether the test results were still usable as evidence.

The hearings ended in April, and the attorneys and defendants are awaiting the judges' rulings, which will affect hundreds of misdemeanor DUI cases for arrests made between Jan. 1, 1997 and July 7, 1999.

The strength of the cases came under question when Robbins, who specializes in DUI cases, began investigating how a Florida Department of Law Enforcement analyst approves the alcohol reference solution used to inspect the Intoxilyzer machine used for giving breath tests. He found the analyst used a margin of error greater than that allowed under the contract between FDLE and the lab that supplies the solution.

Robbins asked county judges to suppress the breath test results, making it more difficult for prosecutors to convict a person of DUI.

The judges agreed to suppress the evidence but also give prosecutors an opportunity to show the breath tests are reliable despite Woods' actions.

During the hearing, Wright argued that the tests are reliable because the Jacksonville Sheriff's Office goes beyond what FDLE requires in maintaining the breath test machines, the tests are given by qualified people and the test results were meaningful.

Robbins called toxicologists to testify the tests weren't scientifically reliable. Robbins wants the judges to throw out the breath test results.

Because of the time period involved, most of the cases have been disposed of, but hundreds still remain open.

With the 13 county judges making their rulings individually, prosecutors and defense attorneys could be forced to follow the ruling per judge if they rule differently, meaning the test results could be used in one judge's courtroom but not used in another judge's courtroom.

If that happens, the attorneys could appeal the rulings, leaving it up to an appellate court to decide what ruling all of the county judges would follow, said Duval County Judge Brent Shore.