RISING TO THE DEFENSE; EX-PROSECUTOR ATTACKS VENTURA COUNTY DUI PROGRAM HE HELPED BUILD.

Byline: Jesse Hiestand Daily News Staff Writer

There's probably no one in Ventura County who knows more about drunk-driving law than Kevin DeNoce.

As a prosecutor, he headed up the DUI unit in the District Attorney's Office - trying cases, training novice lawyers and writing articles. He used his expertise to develop the alcohol-testing program in the Sheriff's Department crime lab and to help author state legislation allowing the use of breath-analysis devices.

Then, a year ago, disillusioned with the DA's office, DeNoce quit and began defending motorists accused of driving drunk. Once again, his DUI expertise came into play - this time, when he blew the whistle on unlicensed and inaccurate alcohol tests at the crime lab.

``I was after the truth as a prosecutor,'' he said in an interview last week. ``And when I revealed these problems at the lab, I was also after the truth.''

DeNoce said he seemed to gravitate toward DUI cases because of the science involved.

``Also, drunk driving is the most commonly prosecuted crime in the United States. If you really want to learn criminal law, you need to learn DUI.

``It is the most hotly contested area of the law because it is a crime that affects both the rich and poor,'' he said.

It is certainly the most hotly contested issue in Ventura County court these days. Some 620 drunk-driving cases are now being challenged because of the crime lab's licensing problems.

While prosecutors maintain that charges were filed properly, defense attorneys are claiming their clients' rights were violated because of improper breath-alcohol tests. Defense attorneys also say the District Attorney's Office shouldn't even be handling the cases because of its close relationship with the Sheriff's Department, which runs the crime lab.

Until last week, DeNoce was one of the lead defense attorneys challenging the cases. Then, on Friday, allegations that he may have improperly communicated with a prosecutor's investigator threw a court hearing into turmoil and prompted DeNoce to withdraw from the issue entirely.

DeNoce occupies a unique position in relation to the crime lab issue, not only for his experience as a prosecutor and his role in uncovering the lab's problems, but for what new information he may provide in coming weeks when he is subpoenaed to testify by the prosecution.

DeNoce said it has already been difficult to deal with recent revelations about the crime lab.

``While I was in the DA's office, I helped build up the lab's alcohol program,'' he said. ``I put a lot of time into it. I put a lot of effort into the published decision that basically put Ventura County on the map as having one of the most reliable programs in the state.

``So on a personal level, I was disappointed to see what had happened to the alcohol program because it certainly has degenerated and degenerated rapidly.''

Go west, young man

A New Jersey native, DeNoce has been moving westward since high school. From the University of Colorado, he attended the Pepperdine University School of Law in the mid-1980s. DeNoce, 37, now lives in Camarillo with his wife, Michelle, and their 2-year-old son, Austin.

When it came to picking a place to work, there was only one choice, he said.

``I didn't want to commute down to Los Angeles and deal with all the traffic and the rat race,'' he said. ``Ventura County, to me, was a much better environment to practice law in.''

He joined the Ventura County District Attorney's Office in the fall of 1987, before passing the California Bar Exam.

By that time, he had already had his first taste of DUI law as a clerk with the U.S. Attorney's Office in Las Vegas.

In addition to helping build a case against mob boss Tony Spilotro, the gangster depicted by Joe Pesci in the movie ``Casino,'' DeNoce was allowed to prosecute a drunk-driving case in federal court.

``No U.S. Attorney wanted to do that case, so I did it - I actually did a DUI trial before I was an attorney because under federal rules that's allowed as long as you have an attorney mentor there with you,'' he said.

DeNoce won that case and by November 1987, he was back in court, this time as a full-fledged attorney in Ventura County.

DUI fast-track

``The day after I passed the bar exam, they sent me down to a courtroom, and I was picking a jury in a DUI trial,'' he said. ``My first 10 trials were DUIs and, since I developed a certain expertise for them, I was called upon by the office as an expert in DUI.''

He held that unofficial position during the first half of his nine-year career as a prosecutor. He taught at the Ventura County Sheriff's Academy and coached young prosecutors. He co-authored several articles, including one with District Attorney Michael Bradbury titled ``Driving under the influence of drugs.'' And in 1989, he received an award from Mothers Against Drunk Driving.

DeNoce is proud of his achievements relating to the use of the Alco Sensor, a hand-held breath-testing device which allows police to take a curbside reading of a DUI suspect's alcohol level. In 1991, DeNoce helped draft state legislation that authorized the use of these devices.

Five years later, before leaving the DA's Office, he won an appeals court ruling allowing Ventura County prosecutors to use Alco Sensor evidence in court - a first in the state and one not yet duplicated in other jurisdictions.

Police in other counties use these devices, but only to establish probable cause to arrest a person on suspicion of drunk driving. The suspect is then taken to a police station for an official blood, urine or breath-alcohol test.

Ventura County is unique in being able to send its prosecutors to trial with two sets of admissible test results - one from the field and one from the station.

``That was a big boon to the Ventura County DUI program because it means you have two results . . . that can corroborate each other,'' DeNoce said. ``I can't tell you how much of a difference that makes in close cases.''

Solid reputation

DeNoce said the Ventura County crime lab has always had a solid reputation for DUI prosecutions.

``This lab and particularly its expert, Norm Fort, had a stellar reputation that was unchallenged and known not only statewide but nationally,'' DeNoce said. ``Norm Fort was central to being able to successfully prosecute close DUI cases. He had the credentials, he had done the studies and had testified to hundreds and hundreds of juries that the breath-alcohol results were reliable.''

Fort's unexpected retirement on Nov. 16, 1996, is viewed by many as the day the crime lab's problems started.

Suddenly, the lab no longer had the person who trained police officers and calibrated the alcohol-testing machines for accuracy. The lab also found itself without a forensic alcohol supervisor, which is required by state regulations.

And prosecutors lost the expert they routinely called in drunk-driving cases.

As lab officials scrambled to train a successor to Fort, a 90-day extension of their alcohol-testing license expired on March 19, and the state Department of Health Services refused to grant another extension because a technician had failed a proficiency test in February.

A subsequent on-site inspection by state regulators turned up evidence of numerous violations relating to alcohol-testing procedures.

Downward spiral

``I think what went wrong was unfortunately (the lab) didn't have a change of guard in place. When Norm Fort retired, there was no one of his caliber able to step in and maintain the program at the level it had been operating for the past 15 years,'' DeNoce said.

But as defense attorneys probed deeper into the lab, troubling questions arose.

Besides changing lab procedure without notifying state regulators, which put the lab out of compliance with state law, prosecutors suggested that Fort may have perjured himself by telling juries that the lab followed all state guidelines.

Evidence also has arisen that a lab technician may have overstated the blood-alcohol levels of nearly three dozen DUI suspects, perhaps pushing them over the .08 percent level for driving while impaired.

``This is tragic, and I'm sure that law enforcement would join me in stating that we cannot condone inaccuracies like that,'' he said. ``I think it's frightening to citizens out there who could be subjected to such testing. I think that will and should shake the confidence in the results being produced by the crime lab.''

At the same time, he sees the potential for a positive outcome to the challenges that have tarnished the program he worked so hard to build.

``I think it will result in a better alcohol program in this county,'' he said. ``We need to get confidence back in the system. It's not fair for the prosecution to have unreliable test results, and it's not fair for citizens to be prosecuted with unfair test results.

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Photo

Photo: (color) Defense attorney Kevin DeNoce blew the whistle on unlicensed crime lab tests.

Michael Owen Baker/Daily News