| Pre-October 08 Breath Tests in Jeopardy |
FORT
LAUDERDALE - Because a state inspector was fired for interfering with
inspections of breath-test machines, a Broward judge ruled Friday that
results from one of the devices cannot be used in a drunken-driving
case before him.
Defense attorneys said County Judge Lee Jay Seidman's ruling is a
bellwether that will likely be followed in 500 to 1,000 other pending
cases in Broward County. That could mean reduced charges, and possible
acquittals, in many instances.
A spokesman for the Broward State Attorney's Office said the office would appeal Seidman's ruling.
The breath-machine issue came to light with the Florida Department of Law Enforcement's firing of Sandra Veiga last October.
Local law enforcement agencies perform their own monthly inspections of
the devices, and the FDLE does annual inspections to certify their
accuracy.
For about two years, Veiga was the FDLE employee in charge of annual
inspections for all Broward County breath-testing machines. She also
tested machines for Miami-Dade and Monroe counties.
She admitted that she turned off power to machines that looked like
they were going to fail inspection. A failure could have indicated a
malfunction.
Veiga's actions, defense attorneys say, cast grave doubt on the
machines' reliability -- and mean any reading they gave indicating a
driver had consumed too much alcohol --- is worthless as evidence.
At a Tuesday hearing before Seidman, defense attorney Carlos Canet led
the charge to throw out breath-alcohol tests performed on drivers in
Broward County during Veiga's tenure with FDLE. He acted on behalf of
his client, Richard Medina, and 32 other attorneys representing more
than 150 clients facing prosecution for drunk driving.
In Seidman's ruling, the judge ruled that the integrity of the machines
under Veiga's care and control had been "fatally compromised" and
"evidence gathered under such troubling circumstances" could not be
presented to a jury.
Ron Ishoy, spokesman for the Broward State Attorney's Office, said the
machines are "extremely accurate," have never been proven to be
otherwise, and that the office would file an appeal.
"The ultimate effect could be that numerous impaired drivers may not be
held accountable for their actions and end up killing or hurting
innocent people," Ishoy said.
He said prosecutors could not approximate how many cases could be
affected, adding that some of the prosecutions could be pursued with
evidence other than breath-testing results, such as testimony from
police and video of field-sobriety tests.
FDLE spokeswoman Heather Smith said the agency takes its responsibility
to conduct and document inspections of the breath-testing machines
"very seriously."
"We are confident that no breath tests used in DUI cases in Broward
County were affected by the actions of Ms. Veiga," Smith said. "All of
the Breathalyzers in Ms. Veiga's coverage area were independently
tested and verified to be functioning correctly."
Mindy Solomon, the chief assistant in charge of county court for the
Broward Public Defender's Office, said her office has 45 clients whose
cases could be dismissed. Seven of those cases are pending before
Seidman.
Seidman's ruling will apply to similar DUI cases pending before him, Solomon said.
"Now every other judge has to rule," she said.
County Judge Kathleen Ireland is expected to be the next judge to weigh in on the controversy Aug. 28.
Tonya Alanez can be reached at tealanez@SunSentinel.com or 954-356-4542.
Copyright © 2009, South Florida Sun-Sentinel
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Posted By Lloyd Golburgh on August 23, 2009 07:27 pm | Permalink  |