|By Raul Hernandez, Ventura County Star, Calif.|
|McClatchy-Tribune Information Services|
"It's unconscionable," said
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
"We did everything right," Frawley said. "We fulfilled our obligation."Design defects with the Alco-Sensor V were discovered by an officer with the
The DA sent a letter dated
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
In between the DA's two letters to attorneys, the DA's office received an email on
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.
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
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
When asked by Morales' lawyer,
"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,
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
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
There have been 211 cases involving a guilty or no-contest plea, she stated.
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.
Martin stated she didn't know how many law enforcement agencies in
Forrester, the CEO of
Forrester declined to answer further questions, saying his
She said fines and fees alone are more than
"It just goes on and on and on," she said.
INTERPRETING THE LETTER
Ventura County Public Defender
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 agency received an undated letter from the Sheriff's
In DUI cases involving Alco-Sensor V between
"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
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
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