ALCOHOL TEST DEVICE ALLOWED\Judge upholds drunk driving conviction.

Byline: Dennis Anderson Associated Press 

A hand-held alcohol detection device the size of a pocket recorder was used properly in convicting a drunk driver, a state appeals court ruled, potentially expanding the machine's role in proving guilt, a prosecutor said Friday.

California Highway Patrol officers have used the Alco-Sensor as a preliminary screening device for five years, but Thursday's decision of the 2nd District Court of Appeal to allow its readings to be used as evidence for conviction was a first in the state, said Deputy District Attorney Kevin DeNoce, a Ventura County prosecutor.

"It gives us another tool to combat the problem of drunk driving," DeNoce said. "The technology has advanced to the point where the little hand-held devices give you just as much reliability as the big machines back at the station."

In the past, defense attorneys have argued that the device shouldn't be allowed to determine guilt since it was approved by lawmakers as a preliminary screening device - and not one to determine the exact amount of alcohol in a suspect's bloodstream.

A jury convicted Brian Keith Bury, 24, of drunk driving after the CHP stopped him on the Ventura Freeway two years ago.

Two tests with the Alco-Sensor showed his blood-alcohol content was higher than 0.17, more than twice the legal limit. He refused to take any additional tests at jail.

At trial, Superior Court Judge Charles W. Campbell Jr. allowed the jury to consider results yielded by the device.

Lauri Brown, the appeals lawyer for Bury, said she considered the conviction unconstitutional and is weighing whether to ask the appeals court to reconsider or pursue a state Supreme Court appeal.

"The statute says these (are) preliminary screening devices," she said. But she said now defendants will discover "these tests do count."

She added she believed the decision was wrong because the arresting officer wrote the test results on the palm of his hand.

"If the officer can write the results on the palm of his hand and send you to state prison, I think we're all in jeopardy."

Convicted for the fifth time in five years, Bury was sentenced to four years in prison. His attorneys appealed, arguing that the hand-held sensor never was intended to be used to gain convictions.

But the appeals court agreed the Alco-Sensor reading was appropriate for the jury's consideration.

"What happened in this case was we had a repeat drunk driving offender . . . and he refused to give any chemical tests," DeNoce said. "The only test we had was the Alco-Sensor. It's extremely difficult to convict a person without the blood-alcohol."

One defense that attorneys often employ is the "rising-blood defense," he said. A defendant argues that during the time it took to get to the police station for an exacting test, the blood-alcohol content in the bloodstream rose but was at a legal limit at the time of the traffic stop.

Admitting Alco-Sensor results taken in the field could diminish that defense, DeNoce said. He cautioned that for prosecutors to expect success in court with Alco-Sensor readings, officers in the field will need to be thoroughly trained and use carefully calibrated devices.

The 2nd District Court of Appeal met in Ventura to hear this case.