COMMANDER DEFENDS TESTS; GO-AHEAD AT LAB BASED ON DEPUTY DA'S ADVICE, OFFICIAL SAYS.

Byline: Jesse Hiestand Daily News Staff Writer

Sheriff's Cmdr. William Wade, the most senior official overseeing the county crime lab, said Friday that a prosecutor offered a legal justification for continuing to do unlicensed testing and took an active role in the decision to later stop those tests.

Defense attorneys are trying to prove that the District Attorney's Office got so entwined with the crime lab's troubles that it now has a conflict of interest that should bar them from handling hundreds of challenges of drunk-driving cases.

The defense is seeking to have about 620 drunk-driving cases dismissed on grounds of sloppy or unlicensed alcohol testing at the lab between March 19 and May 23.

Its first step is to disqualify or ``recuse'' the District Attorney's Office through a motion that is before Superior Court Judge Steven Z. Perren.

Wade testified Friday that he told prosecutors virtually nothing until May about the lab's operation or problems that arose after a technician failed a routine state test.

As a result of that test and other problems, state regulators put a halt to all alcohol testing at the lab between March 19 and May 23.

But on two key issues, Wade said he consulted with Deputy District Attorney John Cardoza, who supervised the prosecution of drunk-driving cases.

Wade said he learned May 7 that the lab was still doing breath-alcohol testing despite the state order. He said he relayed this information to Cardoza who offered a legal justification for continuing the unlicensed testing.

``(Cardoza) told me that (improper testing) went to the weight not the admissibility'' of the evidence, Wade said.

That meant that a jury might be asked to weigh whether it felt a breath test was valid in light of the licensing problems, but the evidence could still be used at trial.

Wade and other lab officials have used this reasoning to justify the decision to disobey the state Department of Health Service's order to stop blood, urine and breath testing.

While the lab temporarily stopped blood and urine testing, they continued to do breath testing for more than a month after March 19, a decision that has fueled the call for case dismissals.

Wade also said Cardoza, at a meeting between prosecutors and lab officials May 13, participated in the decision to have a state Department of Justice lab step in to take over the breath-alcohol testing.

This decision was made, Wade said, in part because Cardoza cited law requiring that drunk-driving suspects have their choice of tests - blood, breath or urine.

There was concern that by limiting a suspect's choice of tests, the lab might be putting a case in jeopardy. Lab officials have also used this concern to justify the decision to continue unlicensed breath testing until May 13.

Wade said he did not authorize the lab to do the unlicensed testing. Instead, he said he was unaware this was going on until reporters asked about it May 7, nearly three weeks after the state order.

The defense's recusal motion is set to resume Monday afternoon and continue through next week. Once it is resolved, the hearings will move on to the main issue, whether the lab's actions regarding these tests justify the dismissal of about 620 drunk-driving cases.