Portable Breathalyzer O.K. for Chemical Test!

Court OKs Use of Drunk-Driving Test

Law: State appeals panel rules that evidence obtained from hand-held
gauge is admissible, even without backup data.

By PAUL ELIAS, SPECIAL TO THE TIMES

Los Angeles Times Saturday January 20, 1996
Home Edition
Part A, Page 18

VENTURA–A state appeals court has ruled that a hand-held gauge the
size of a personal radio can be used to convict drunk drivers, a decision
that could sound the death knell for a popular DUI defense.

The 2nd District Court of Appeal found that results of the preliminary
alcohol screening test that California Highway Patrol officers give to
suspected drunk drivers are admissible in court.

For five years, CHP officers have asked suspected drunk drivers to
blow into the Alco-Sensor to measure blood-alcohol levels at traffic
stops. Suspects are required to take more precise blood-alcohol tests,
usually administered at the nearest jail.

Defense attorneys have argued successfully in court that the sensor
should not be allowed as evidence because it was approved by lawmakers to
screen suspects and not as a tool to precisely determine the degree of a
driver’s intoxication.

But 2nd District justices said in a decision published this week that
juries can use the Alco-Sensor results to convict drivers, even without
more reliable backup tests.

“The Alco-Sensor is so important for the prosecution of drunken
driving,” said Ventura County Deputy Dist. Atty. Kevin DeNoce, who argued
the test case before the Court of Appeal.

DeNoce said admissibility of Alco-Sensor results will undermine a
popular defense argument that suspects’ alcohol-blood levels were below
the legal limit when stopped even though they were later found to exceed
it. That is because it takes time for alcohol to seep into the
bloodstream.

For instance, suspects measured with a blood-alcohol level of
0.08%–the standard for drunk driving–at the police station have
successfully argued that their level was significantly lower when they
were stopped.

In the Ventura County test case, CHP officers stopped Brian Keith
Bury, 24, as he drove his car slowly and erratically on the Ventura
Freeway two years ago. Bury submitted to two Alco-Sensor tests, which
indicated a blood-alcohol level of more than 0.17%.

At the County Jail, Bury refused to take any further tests. During
Bury’s trial, Ventura County Superior Court Judge Charles W. Campbell Jr.
allowed the jury to consider the Alco-Sensor results.

A jury convicted Bury of drunk driving for the fifth time in five
years. He was sentenced to four years in prison. His attorneys appealed,
arguing that the Alco-Sensor was never intended to be used as a
prosecution tool.

Bury’s trial lawyer, Steven Powell, declined to comment. Bury’s
appellate attorney, Lauri Brown, did not return calls seeking
comment.

“The ruling doesn’t surprise me, given the political climate,” said
Ventura defense attorney Jay Johnson, who specializes in drunk driving
cases. “There are three crimes I tell my clients that they don’t want to
get convicted of: rape, child molestation and drunken driving, because
they are fighting an uphill battle against public sentiment.”

Copyright, The Times Mirror Company; Los Angeles Times, 1996.

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