CRIME LAB MAY GET RELICENSED : LAWYERS DISPUTE RESULTS.

Byline: Jesse Hiestand Daily News Staff Writer

The Sheriff's Department crime lab may get its license to conduct DUI tests back this week, even as officials struggle to determine how many drunk-driving cases may have been tainted by uncertified breath analyses, officials said Wednesday.

The hiring of a qualified forensic alcohol supervisor would allow the California Department of Health Services to reinstate Ventura County's license to test blood, urine and breath samples for the presence of alcohol. The license was suspended March 19 after a technician failed a routine proficiency test.

Officials are completing the supervisor's paperwork, which must be submitted to the state department in Sacramento.

``Once they do that, they're back in business,'' said Scott Lewis, a department spokesman.

But as the crime lab tries to get back on track, the Sheriff's Department and District Attorney's Office are grappling with the fallout from criminal cases filed while the lab had no license.

Several defense attorneys are seeking to have drunk-driving cases dismissed, claiming the lab's testing was faulty or done when it had no license. Perhaps the most damaging episode came earlier this month when it was revealed that the lab had continued to test breath samples for more than a month without a license to do so.

Defense attorney Kevin DeNoce, who plans to challenge at least six cases, said he estimates that a total of 50 to 100 drunk-driving cases could be affected by the crime lab's actions.

The crime lab supervisor, sheriff's Cmdr. William Wade, has said previously that the lab continued to do breath tests because not gathering the evidence was unacceptable.

The lab ultimately stopped doing breath tests May 13 under pressure from the District Attorney's Office. Those tests, as well as blood and urine tests, were taken over by the state Department of Justice lab in Santa Barbara.

Deputy District Attorney John Cardoza said his office did not know the lab was not licensed for breath tests until May 5. He said prosecutors continued to file drunk-driving cases using this evidence until May 12, when the state took over, in order to ensure a suspect's right to either blood, urine or breath tests.

But Capt. Mark Ball, speaking for the crime lab, said prosecutors knew as early as April 8 that the lab had continued the unlicensed breath tests.

Cardoza refused to comment on the April 8 meeting between prosecutors and crime lab officials, saying that would be an issue at upcoming hearings.

At a hearing Wednesday, Superior Court Judge Charles Campbell is expected to set a hearing on motions filed by DeNoce, Deputy Public Defender Brian Vogel and attorney Robert Sanbach.

In all, they may ask for dismissal of more than 10 drunk-driving cases based on a deliberate withholding of evidence favorable to defendants, Sanbach said.

``We intend to ask for dismissal of these actions for violation of our client's rights under the United States Constitution,'' he said.

Vogel and Sanbach appeared before Campbell on Monday to seek subpoenas on an array of information they say is needed to challenge the drunk-driving cases. Information sought includes the qualifications and backgrounds of lab employees, lab policies and procedures, and all correspondence relating to the license loss and the search for a new forensic alcohol technician.

``Essentially, we're trying to establish who knew what and when,'' Sanbach said.

Vogel sought to subpoena Wade to testify at next week's hearing. Campbell did not require Wade to testify based on testimony from Wade's supervisor, Chief Deputy Ken Kipp, that Wade is unavailable because he is on a stress-related leave of absence, Sanbach said.

Even though the lab may get its license back, Lewis said state health services officials remain concerned about its operations.

One concern is with the way technicians use a machine called a gas chromotograph to calibrate the breath testing machine. Lewis said the issue was important because a similar problem led to the improper test that triggered the licensing loss.