Defense attorneys say Ventura County DA’s office misled them on malfunctioning breathalyzers [Ventura County Star, Calif.]

Nov. 27--Defense attorneys say the Ventura County District Attorney's Office misled them about the number of malfunctioning breathalyzers that were used in DUI arrests in the county between January and March.

The District Attorney's Office minimized design-defect problems in the Alco-Sensor V, leading criminal lawyers and the public to believe the erratic blood-alcohol readings were limited to a few devices, when, in fact, all of the 125 breathalyzers purchased by the Ventura County Sheriff's Department were suspect, say defense attorneys.

"It's unconscionable," said Camarillo attorney Mindy McQueen, who only handles cases of driving under the influence. "It was just astonishing."

Attorney Monica Cummins of the Public Defender's Office said new court evidence could result in an investigation by her office and the reopening of dozens of old DUI cases involving the Alco-Sensor V breathalyzer to determine whether those who pleaded guilty should be allowed to withdraw their pleas.

A DUI conviction can result in heavy fines and court fees along with jail time, thousands of dollars in attorney fees and a driver's license suspension. Also, an offender must attend DUI school and pay probation fees and may be ordered to do community service, such as picking up trash on the highway.

Chief Deputy District Attorney Michael Frawley denied there was any effort to deceive anyone, saying the entire problem with the design-defects of the Alco-Sensor V was brought to the attention of defense attorneys and the public.

"We did everything right," Frawley said. "We fulfilled our obligation."Design defects with the Alco-Sensor V were discovered by an officer with the California Highway Patrol and were serious enough that hundreds of arrests and convictions involving drunken drivers in Ventura Countybetween Jan. 20 and March 31 were reviewed.

The DA sent a letter dated April 14 to local defense attorneys stating that eight of the 125 Alco-Sensor V breathalyzers were returned to the manufacturer "due to erratic results."

The letter went on to state that while it appeared the problem was "limited to the eight instruments mentioned," the letter was being sent to attorneys for all defendants in DUI cases where the Alco-Sensor V was used.

The DA sent out a second letter on April 22 revising its statement, stating that only two of the 125 devices were returned to the manufacturer for evaluation due to erratic test results. Both letters cited the serial numbers of the individual instruments returned for evaluation.

In between the DA's two letters to attorneys, the DA's office received an email on April 19 from Chrystal Craver, supervising forensic scientist for the Sheriff's Office Forensic Services Bureau, which is responsible for testing breathalyzer devices in the county. She noted her concern that the DA's April 14 letter stated that the problem appeared to be limited to eight instruments "when tests on some other instruments were discussed in our meeting."

She said the manufacturer, Intoximeters, stated in a letter that certain conditions could produce erratic alcohol results and the problem was unique to Alco-Sensor V's current sample inlet and mouthpiece. It did not limit the problem to a limited number of the devices.

That April 1 letter from Intoximeters CEO M. Rankine Forrester was attached and sent with the DA letters to defense attorneys.

Frawley said Forrester's letter should have alerted defense attorneys to the fact that all devices could have problems. Craver said the DA's letters could have been more clear but said the Intoximeters' letter explains the problem.

All of the county's the Alco-Sensor V devices -- which were purchased in December 2009 and distributed to law enforcement between Jan. 20 and Feb. 24 this year -- were returned to the manufacturer on April 19.

Cummins said the way the DA's April letters are phrased, coupled with new evidence, shows that prosecutors weren't forthcoming with all the facts and the problems surrounding the Sensor V.

"It concerns me that there is information in the letter that states the problem appears to be limited to eight instruments," she said.

She also said that under the California Penal Code regarding an expert's testimony, Craver's email and Alco-Sensor V test results in her email are exculpatory evidence -- evidence that would be favorable to the defense. She said this information should have been turned over to defense attorneys by prosecutors. It was not, Cummins said.

SENSOR V IN COURT

The issue came to a head last month in unexpected testimony in the DUI trial of Hector Morales. Craver testified she had asked prosecutors to draft a new letter because the information in the April 14 letter to defense lawyers and others about the Alco-Sensor V was inaccurate. The DA did send out another letter on April 22, stating that two Alco-Sensor Vs were sent to Intoximeters for erratic test results.

When asked by Morales' lawyer, Thomas Hartnett with the Public Defender's Office, if the problems with Alco-Sensor V applied to the model, not just the eight individual serial numbers cited in the DA's letter, she said that was correct. She also agreed that she was of that opinion on April 18.

"They were all manufactured the same, so the potential was there on all of them," she said.

She also said it was true she had meetings with the DA's office that included discussion of individual breathalyzers that concerned her, which were not among the eight listed in the DA's letter.

But apparently the prosecutor in the Morales case, Alvan Arzu, didn't know there were more than eight Alco-Sensor V breathalyzers that potentially had problems.

During opening statements in the DUI trial, Arzu told jurors Craver would testify that eight of the breathalyzers were reading erratically, but the instrument used in Morales' case "was not one of the eight." Arzu also said only eight out of about 50 devices Craver had out in the field were producing erratic readings.

After he was arrested in March, Morales blew 0.13 blood-alcohol on the Alco-Sensor V and was given a field sobriety test.

After a five-day trial, jurors told the judge on Oct. 14 that they were deadlocked. Five days later, the judge granted the prosecution's motion to dismiss the DUI charges against Morales.

Frawley said the district attorney decides whether to prosecute on a "case by case" basis, not solely because an Alco-Sensor V is faulty. Other factors such as how a person was driving and how he or she performed on a field sobriety test are considered.

The DA's office reviewed more than 470 DUI cases after the problems with the Alco-Sensor V came to light.

Of those, 46 were not charged during the review process, according to prosecutor Catherine Voelker, supervisor of Narcotics and Misdemeanors. There were 14 cases returned for follow-up review, 107 cases were dismissed and 99 are pending. She said 53 cases were dismissed because of issues with the Alco-Sensor V.

There have been 211 cases involving a guilty or no-contest plea, she stated.

DESIGN FLAWS

The National Highway Traffic and Safety Administration approved the Alco-Sensor V in December 2009. The two design flaws discovered later involved the mouthpiece and a fuel cell sample inlet.

People suspected of drunken driving on cold days had to blow into the device multiple times with warm breaths, according to Craver. This caused a higher condensation level and droplets going into the Alco-Sensor V through its flawed mouthpiece, resulting in erratic blood-alcohol readings, she said.

Elly Martin, spokeswoman with NHTSA, stated in an email that Intoximeters notified the federal agency of the problem with the device in April. Intoximeters initiated a recall of all Alco-Sensor V breathalyzers, Martin stated. Intoximeters told the agency that it fixed the problem in July 2011 and after tests, NHTSA approved the device for reuse.</p>

Martin stated she didn't know how many law enforcement agencies in California use the Alco-Sensor V.

Forrester, the CEO of Intoximeters Inc. in St. Louis, insisted the Alco-Sensor V never had any design defects and there weren't any recalls of the breathalyzer. He said only six or seven of Intoximeters' customers throughout the nation, mostly in California, purchased the Alco-Sensor V breathalyzer.

Forrester declined to answer further questions, saying his April 1 Intoximeters letter to Renee Artman, the county's Forensic Services Bureau manager, was self-explanatory.

McQueen, the Camarillo attorney, believes the DA should dismiss all DUI cases that involve Alco-Sensor V devices. She said they might be under pressure because DUI cases generate so much revenue for Ventura County, the state and for the private sector.

She said fines and fees alone are more than $3,600 for a DUI conviction; alcohol school costs about $843 for a first-time offender; and the person faces higher auto insurance rates, car impound fees and other expenses.

"It just goes on and on and on," she said.

INTERPRETING THE LETTER

Ventura County Public Defender Steve Lipson said his office, which handled 162 Alco-Sensor V DUI cases, was "blindsided" by Craver's April 19 email to prosecutors, which turned up just days before Morales' DUI trial in October.

But Frawley questioned how anyone, including the public defender, could not understand the letters mailed by the DA.

"How can anyone read this and not understand that it applies to every single device?" he said.

The California Department of Motor Vehicles also did not understand that all the devices had problems.

The agency received an undated letter from the Sheriff's Forensic Bureau that listed eight Alco-Sensor V devices with specific serial numbers that were giving erratic blood-alcohol readings, said Jan Mendoza, spokeswoman with the department. She said people convicted of a DUI can request a DMV hearing to keep from getting their license suspended. They must provide evidence at this hearing, she said.

In DUI cases involving Alco-Sensor V between Jan. 20 and March, if the serial number of the breathalyzer used didn't match one of the eight serial numbers in the Sheriff's Forensic Bureau letter, then their license was suspended.

"If it's not listed, than you don't have a case," Mendoza said.

There have been only two DUI cases involving the Alco-Sensor V that were set aside for suspension, she said.

Frawley said the bottom line is protecting the public from drunken drivers.

Morales' former attorney Ken Hamilton, also with the Public Defender's Office, said he understands concerns about public safety, but said the use of breathalyzers that produce erratic blood alcohol results can result in false arrests and convictions with adverse effects on family and employment.

The faulty devices also expose law enforcement to multiple lawsuits for damages, sometimes diverting public resources otherwise earmarked for public safety, he said.

Hamilton urged the NHTSA to suspend or remove the Alco-Sensor V from its Conforming Products List, which is a requirement for breathalyzers used in California. They never were.

Ventura County got back its Alco-Sensor V breathalyzers after they were fixed in July. Craver said the devices aren't being used yet by law enforcement because they are still undergoing evaluations. She said they might be in use by next month.

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