DUI SUSPECT'S BREATH TEST OK, JUDGE RULES.

Byline: Jesse Hiestand Daily News Staff Writer

A Municipal Court judge has refused to throw out the breath analysis of a drunk-driving suspect, leaving it to a jury to decide whether problems at the county crime lab jeopardized the accuracy of DUI tests.

Judge Edward Brodie ruled Monday that the crime lab was violating state law but was fully licensed when it tested a breath sample showing that DUI suspect Rey Diaz had a blood-alcohol level of 0.11 when he was arrested April 5.

Prosecutors hope Brodie's ruling will set the tone for some 300 other DUI cases, which are being challenged by attorneys who claim that faulty or unlicensed alcohol tests violated their clients' rights.

``We certainly hope that the judge's findings on what would appear to be fairly similar evidence will prove to be a harbinger of things to come,'' said Deputy District Attorney Pete Kossoris.

But Deputy Public Defender Brian Vogel, who is leading the challenge, said Brodie's ruling should have no effect on the 300 other cases, which are being heard by Superior Court Judge Steven Perren.

``(The ruling) has no impact on Judge Perren's decision,'' Vogel said. ``(The Diaz) case doesn't have an effect on the rights of any other criminal defendants.''

Defense attorneys are challenging the accuracy and validity of breath, urine and blood analyses conducted by the Sheriff's Department crime lab, which lost its state testing license March 19 after a technician failed a routine proficiency test.

The lab stopped forensic testing but continued to conduct breath analyses until May 13 - with prosecutors basing their cases on the results.

After hearing last week from officials with the state Department of Health Services and other agencies, Brodie concluded that lab officials intentionally - but not maliciously - disregarded the order to halt tests.

He also found the lab violated state law by not having a certified forensic alcohol supervisor on staff and had deviated from state-mandated testing procedures during the period in question.

But in the judge's opinion, these elements did not violate Diaz's constitutional rights.

And in his ruling, Brodie agreed with prosecutors that the lab's alcohol-testing license had never actually been suspended.

``The judge found that they had a valid license at all times,'' Kossoris said. ``He found that all the lab witnesses were believable and credible.''

Diaz elected to take his chances with a jury trial rather than joining the 300 accused and convicted drunk drivers who are challenging their cases, based on the crime lab's findings. That umbrella case is next expected in court Aug. 19.