DUI Cases Might Be Thrown Out

Broward defense lawyers declare Breathalyzer results invalid in DUI cases
State inspector fired after she foiled routine tests to ensure devices' accuracy

By Lisa J. Huriash

South Florida Sun Sentinel

6:33 PM EDT, August 18, 2009

FORT LAUDERDALE

Scores of pending drunken driving charges and past convictions are at stake in Broward County as defense lawyers try to get results of breath-alcohol tests thrown out.

At a court hearing Tuesday, defense attorney Carlos Canet said Breathalyzer machines had been handled improperly and therefore, the results they obtained were not admissible as evidence.

But state prosecutors and law enforcement officials said there was nothing wrong with the devices, just with the one person, a state inspector, who had been handling them. And she has been fired, they said.

Last October, the Florida Department of Law Enforcement, which is responsible for certifying the accuracy of the testing devices, fired employee Sandra Veiga for turning off power to three breath-testing machines in Miami-Dade County when it looked like they were going to fail inspection.

That failure may have indicated a malfunction, Canet said. And because Veiga was in charge of 79 Breathalyzers used in Broward, Miami-Dade and Monroe counties, results from all of them are suspect, he said.

"She just did it three times?" Canet said. "Who are they trying to kid?"

Mindy Solomon, chief assistant in charge of county court for the Public Defender's Office, also voiced concerns in an interview.

"If the machine did not pass their monthly maintenance inspection, that means the argument would be the machine didn't work right," Solomon said. "If the machine didn't work right, the Breathalyzer test is invalid."

But Heather Smith, an FDLE spokeswoman, said no DUI tests performed on actual drivers were affected.

"There were no concerns with the Breathalyzer itself. This was a concern with an operator not following procedures properly," Smith said.

Broward Circuit Judge Lee Jay Seidman is expected to rule within days in the case of Canet's client, who is charged with DUI. But a consortium of defense attorneys videotaped Tuesday's hearing so other judges can view the testimony and make their own decisions for upcoming cases. Canet said he was acting on behalf of 30 other private defense attorneys representing 125 clients facing prosecution for drunken driving.

As well, he said, some older cases that have already led to convictions should be reopened and scrutinized.

Lisa J. Huriash can be reached at lhuriash@sunsentinel.com or 954-572-2008.

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