CRIME LAB WARNED OF SUSPENSION; STATE EXPLAINED LICENSING RISK TESTIMONY SHOWS LAB KNEW RISK.

Byline: Jesse Hiestand Daily News Staff Writer

Six months before losing their alcohol-testing license, Ventura County crime lab officials were warned that they were running a risk by having only one forensic alcohol supervisor on staff, the lab's manager testified Thursday.

``If you lose your forensic alcohol supervisor and don't have someone to replace him . . . then you'll have problems with your license,'' sheriff's Capt. Leslie Warren said she was told in September by the state Department of Health Services.

Two months later, Norm Fort, the lab's only forensic alcohol supervisor, retired unexpectedly, setting in motion a series of events that eventually cost the lab its license for two months earlier this year.

Some 300 drunk-driving prosecutions are now in jeopardy because of possible sloppy or unlicensed alcohol testing at the lab following Fort's retirement.

State law requires labs have at least one certified forensic alcohol supervisor on staff in order to test alcohol levels in blood, urine or breath samples.

Warren said she was in the process of getting two other alcohol supervisors qualified when she received the warning from Emil de Vera, chief of the Department of Health Services' food and drug lab.

De Vera said most labs have more than one qualified alcohol supervisor just to be safe, she said. When he learned that Ventura County only had one supervisor, de Vera said ``basically, that was ill-advised,'' Warren said.

Warren's testimony came during a drunk driving case where the results of a breath alcohol test are being challenged.

While nearly two-dozen attorneys are preparing to challenge some 300 drunk driving cases as a group, defendant Rey Diaz struck out on his own and pressed for a separate jury trial.

Both the prosecution and defense are watching the case closely because it involves many issues that overlap with the larger effort to have cases dismissed.

Diaz was arrested on suspicion of driving under the influence in Oxnard on April 5, about two weeks after the state told the crime lab to stop its alcohol testing program.

Warren confirmed Thursday there were three reasons for the lab's troubles.

The lab did not have a qualified forensic alcohol supervisor on staff between November and May.

Also, a lab technician had failed a routine proficiency test in February, and state officials found several instances where the lab was out of compliance with state guidelines during an on-site inspection in April, she said.

The lab was told to stop alcohol testing March 19, she said. It immediately began having a state Department of Justice lab in Santa Barbara analyze blood and urine samples.

But the unlicensed lab kept doing breath tests until May 9, a decision that is now fueling the effort to have hundreds of drunk-driving cases dismissed.

Under cross-examination by Deputy Public Defender Brian Vogel, Warren said the lab continued to do breath tests because they interpreted the state's order as meaning they ``should not'' do it, not that they ``shall not.''

``(De Vera) told us he could not officially tell us to go ahead and do (the breath testing),'' Warren said. ``He said case law has shown that noncompliance with (state guidelines) goes to the weight, not the admissibility, of the evidence and that it would be an issue for the courts to take up.''

Since the lab's problems came to light, the fate of hundreds of drunk-driving cases has been thrown in question.

The attorneys involved in that issue will be back before a Ventura County Superior Court judge today to argue about discovery in preparation for motions to have cases dismissed in coming months.

Diaz's jury trial, meanwhile, is expected to wrap up Monday, with the burden being on the jury to decide whether the evidence gathered by the unlicensed crime lab should be trusted.