Elizabeth L. Parker, Esq.
DUI CASE REVIEWS SOUGHT The Sun Sentinel by Stephen Deere
The State Attorney's Office must review 1,100 of the county's drunken-driving cases from July 2004 through April to see which ones it can prosecute without evidence from breath-analysis tests, according to a prosecutor's memo to State Attorney Barry Krischer. The Friday memo came after a judge ruled this week that the Palm Beach County Sheriff's Office method of maintaining breath-analysis machines unfairly damages the ability to defend against a DUI arrest. The review could result in prosecutors not pursuing some of the cases, said Elizabeth Parker, who prosecutes DUI cases. Prosecutors typically use breath-analysis results, or the refusal to take the test, in conjunction with other evidence such as field sobriety tests. Juries often consider refusing to submit to the test as strong evidence of guilt, Parker said. Prosecutors won't treat those cases any differently. Parker didn't know how many of the 1,100 defendants had refused to take the test, but said the refusal rate is usually about 50 to 60 percent. For 10 months, the Sheriff's Office had multiple technicians do monthly maintenance and didn't adequately record who worked on which machines. County Judge Charles Burton on Monday ruled breath-alcohol test results be suppressed because the approach "prevented a meaningful cross examination of the specific maintenance performed on the specific Intoxilyzer," the ruling said. In cases in which an individual submitted to the test, prosecutors must decide if sufficient other evidence exists for a conviction. "The only thing we are going to have is impairment," Parker said. They have one instance where that appears to be enough. Parker said prosecutors would still pursue a DUI conviction in the case in which Burton suppressed the breath analysis. In October, Sheriff's deputies arrested Diana Iwanow on suspicion of drunken driving. Iwanow failed several sobriety tests and couldn't find her insurance and registration, though they were in plain sight of the officer who pulled her over, according to the arrest report.
Elizabeth L. Parker, Esq. "She clearly admitted to drinking and driving," the report read. Iwanow's breath analysis showed a blood-alcohol content of .241 percent, according to the report. That's more than three times the legal limit. The Sheriff's Office began using multiple technicians because a single technician couldn't appear for all DUI court dates. Sheriff Ric Bradshaw said on Monday the agency would immediately begin keeping strict maintenance records on the machines. On Friday, the Sheriff's office still would not say who was responsible for the change or if disciplinary action might be taken. "I think it's safe to say that it is back to the way it should be and should stay that way," sheriff's Maj. Bob Ferrell said. All but five law enforcement agencies in the county -- Boca Raton, Boynton Beach, Lake Worth, Greenacres and West Palm Beach -- use the Sheriff's Office's eight breath-analysis machines, Parker said.