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by Val Ellicott
Staff Writer
Attorney Kenneth Johnson was preparing a client's
drunken-driving case for trial in October when he noticed a seemingly
innocent omission in the paperwork he had received from prosecutors.
The back side of one form - an affidavit routinely
used by the Palm Beach County Sheriff's Office to document the
results of breath tests - was missing. Johnson asked prosecutors to
send it along.
What he discovered after reading the piece of paper
has launched a new wave of legal attacks by local defense attorneys
representing drunken driving clients and could affect hundreds of
pending DUI cases in which breath analysis evidence is a factor.
Johnson's revelation: Technicians at the sheriff's
office don't perform a "control" test when they use the
machine that measures alcohol content in a suspect's breath.
"Everything I came up with says they're
required to do this test," the Jupiter lawyer said Wednesday.
"At that point, I knew it was an issue."
Other defense attorneys agree. They are busily
incorporating Johnson' s argument into their own DUI cases in which a
breath analysis machine was used.
"This is spreading like wildfire across the
land," said Richard Springer, one of the county's leading DUI
attorneys. "This one is so clear and so right that it terrifies
everybody" in law enforcement.
Prosecutors say the control test is optional, not
mandatory, and are preparing to fight the onslaught of defense
challenges. "This is an important enough issue that we
anticipate pursuing it," Chief Assistant State Attorney Ken
Selvig said.
Of the various types of evidence relevant to DUI
cases, including the arresting officer's report and a videotape of
the suspect, "the breath test is obviously the most
damning," Springer said.
The defense lawyers all hope judges will throw out
breath analysisevidence in their DUI cases, as County Judge Cory
Ciklin did for Johnson's client, Thomas Edward Bailey, 45, of Hobe Sound.
Bailey was arrested Aug. 25 by Tequesta police who
said Bailey drove his car off the road. According to the breath
analysis machine, also known by its brand name, the Intoxilyzer 5000,
Bailey's breath-alcohol content measured 0.249 percent on one test
and 0.231 percent on a subsequent test. Under Florida law, a driver
whose breath-alcohol or blood-alcohol level measures 0.08 percent or
above is considered drunk.
In Wisconsin, where Johnson was a district attorney
before moving to Florida in 1993, technicians must run a control test
when taking breath samples from DUI suspects. Bailey's case marked
Johnson's first encounter, as a defense attorney, with breath
analysis evidence and made him wonder, he said, whether control tests
were also mandatory in Florida.
In December, he argued to Ciklin that the control
procedures are required, based on the Florida Department of Law
Enforcement rules that by law govern the way breath tests are
administered in Florida. Those rules, in effect since 1993, specify
that after taking an initial breath sample from a DUI suspect,
technicians must perform a control test on the breath analysis unit
before taking a second sample, Johnson said.
The control test measures the alcohol content in
vapor from a pre- set mixture of alcohol and water to confirm that
the breath analysis machine is working correctly.
Failing to perform the control test, Johnson said,
"takes away the checks and balances designed to ensure the
accuracy of the test results."
On Feb. 21, Ciklin threw out the breath analysis
test evidence against Bailey. The FDLE rules, he wrote in his
decision, "clearly require a control test sequence."
But the judge cautioned that if prosecutors had
offered evidence that the sheriff's testing methods, even without the
control test, were still in "substantial compliance" with
FDLE rules, he might have ruled differently.
"The reason the state lost on that particular
motion was they put on no evidence," Ciklin said. "It was
kind of a lie-down-and-play- dead situation."
David Fogleman, the technician who manages the
sheriff's DUI section, said "we don't do that," when asked
about control tests at a hearing in Bailey's case. And attorneys who
specialize in DUI cases say they also can't recall it ever being performed.
The FDLE changed paperwork relating to the control
test as of Jan. 1, but even with those changes Selvig is concerned
that the rules still aren't unequivocally clear that the control test
is optional. Even if the rule change blocks the control-test
loophole, it would not apply to cases that were filed before 1997
that still remain open. The control test cannot be used to overturn
cases that have already been decided, Selvig said.
Prosecutors could have appealed Ciklin's ruling in
Bailey's case but chose not to. They say they can convict Bailey even
without the breath test evidence because they have other proof he was intoxicated.
Instead, the prosecutors have chosen another
misdemeanor case, this one against a Fort Lauderdale man, as a
platform for attacking the defense Bar's newest strategy. Selvig
hopes to settle the issue in a case against Mark Allen Saar, 39, who
was charged with DUI on May 11 by Boynton Beach police after tests at
the police department measured his breath-alcohol content at 0.154,
0.181 and 0.163 percent.
Saar's attorney has adopted Johnson's arguments in
a bid to suppress the test results.
At an April 17 hearing in the case, prosecutors
will call on testimony from Rick Lober, who runs FDLE's alcohol
testing program.
Lober helped write the rules on conducting breath
tests, and he said this week the rules were never intended to make
the test mandatory: "The control test was always just an option
local law enforcement agencies could use."
But the language in the FDLE's paperwork seems to
say otherwise.
The reverse side of the agency's "Breath Test
Result Affidavit" - the document that first caught Johnson's
attention - quotes FDLE Rule 11D-8007(3):
"A technician shall conduct a breath test in
accordance with the Operational Procedures FDLE/ICP Form 17 - October 1993."
Below that is a reprint of Form 17, which is a
checklist of the steps technicians are to follow when conducting
breath tests. It directs technicians to "insert the following
procedures after step 8," then details the three parts of the
"control test sequence."
A separate checklist, titled "CMI Inc.
Intoxilyzer Model 5000 Series Operational Checklist," does
suggest the control test may be optional, but it is not part of the
FDLE's operational procedures, defense attorneys say.
Saar's attorney, Fred Susaneck, said it doesn't
matter what FDLE officials intended in writing the rules. They must
live with the rules as they were adopted.
"Nowhere in the operational procedures does it
say that these steps are optional," he said. "There is a
rule in existence that says they have to run a control test, period."
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