Defense attorneys say dozens of DUI cases are in jeopardy - WDRB 41 Louisville News

Defense attorneys say dozens of DUI cases are in jeopardy

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LOUISVILLE, Ky. (WDRB) -- A Metro Corrections Breathalyzer technician has been accused of lying in court records about whether he smelled alcohol on a suspected drunken driver, potentially putting in jeopardy dozens of drunken driving cases he has handled.

Defense attorneys say the lie was caught on video.

The Jefferson County Attorney's Office has already amended down two drunken driving cases in which a video was introduced of Officer Brett Rehm appearing to tell a police officer he did not smell alcohol on the breath of a defendant -- but then writing in court records that he had.

After a police officer appeared to tell Rehm in February that the case against Jorge Cejay may be dismissed because of the lack of a blood alcohol test, Rehm wrote on Cejay's blood alcohol report that Cejay “had odor of alcoholic beverage emitting from his breath,” according to the video.

The video of the conversation at Metro Corrections became an issue in a separate DUI trial last week as attorney Daniel Alvarez was questioning Rehm. Alvarez said he subpoenaed the video and showed it to Assistant County Attorney Ben Wyman during a break in the trial. Wyman then agreed to amend the case to alcohol intoxication.

“You're on tape saying that you don't smell the odor of alcohol on the defendant, but you are willing to on a public record -- on a public document -- sign that there was an odor of alcohol, simply because you don't want a case to get dismissed,” Alvarez said in an interview with WDRB on Monday. “That's a huge issue.”

Alvarez, Cejay's attorney, Jeff McClain, and other attorneys said the video likely will become an issue in many of Rehm's cases, because it calls into question his credibility.

“I'm going to question his credibility if he ever takes the stand again in a DUI case and I'm going to point out that he can not be trusted,” said defense attorney Paul Gold, adding that he has about two dozen current DUI cases that Rehm is involved with.

Gold, among others, also said Rehm may have committed a crime of tampering with physical evidence by lying on an official record.

In an interview early on Monday, Major Endora Davis, a spokesperson for Metro Corrections, said she did not know of any investigation into Rehm or the video tape. Rehm did not return a request for comment left with Davis.

In an e-mail later on Monday, Davis said that as a result of WDRB's request for information about Rehm and the video, “an internal inquiry has been initiated…. This is all the information that I have at this time.” She would not provide WDRB with a picture of Rehm.

Assistant County Attorney Paul Richwalsky, chief of the DUI division, said prosecutors have watched the video and agree that what Rehm said on the video is different than what he wrote on the report. However, Richwalsky said it is possible that the officer and Rehm are talking about a different case.

“There could be an explanation for it, there could not be,” he said. “I don't know.”

He said prosecutors will wait for the Metro Corrections review before deciding how to handle Rehm's other cases.

In the video, Cejay, who speaks Spanish, did not take a Breathalyzer test and an unnamed police officer can be heard telling Rehm they have no blood test to prove Cejay was intoxicated. The video only shows Cejay, while Rehm and the officer's voices can be heard.

“If I write this report, it's (the case) is dismissed,” the officer tells Rehm, according to a copy of the video and the interpretation of the two defense attorneys who have watched it with prosecutors.

“I don't have much as far as observation either,” a man identified as Rehm by the defense attorneys and Richwalsky tells the officer.

“I didn't smell any alcohol,” Rehm says adding, however, that Cejay's eyes were bloodshot.

“His eyes are bloodshot but if he's been up for two days working, he's gonna be tired,” the officer says.

“Exactly,” Rehm says, and then shuts the video off.

Defense attorneys say Rehm then wrote on the report that Cejay had blood shot eyes, smelled of alcohol, had a “slight uneven gait” and refused a breath test.

McClain said Cejay maintains that had not been drinking.

When the case was set to go to trial in October, McClain said another attorney and a paralegal in his office discovered the conversation at the end of the video. After showing the video to Assistant County Attorney Roger Cooper, the prosecutor agreed to amend the charge to reckless driving.

“He immediately did the right thing and amended it down,” McClain said in an interview. "This goes to the heart of his credibility."

Richwalsky said the Cejay case was amended because it was a weak case and the video just made it even more difficult to prove.

In the DUI case that Alvarez handled last week, the DUI charge was amended because of the video, Richwalsky said. He said the prosecutor did not want Rehm to be cross-examined about the video without any preparation.

Some defense attorneys said Monday the county attorney's office had a duty to turn over the video to anybody representing a defendant in a case in which Rehm was involved.

“This is exculpatory and they should have been telling people,” said Gold, who has also seen the video.

Richwalsky said it is not yet clear that the video is exculpatory, or favorable to the defense, because there are many unknowns as to what Rehm and the officer were talking about.

This is not the first problem Metro Corrections has had with a breathalyzer technician in the last year.

Last November, an internal investigation by Metro Corrections recommended that Officer Daniel Lister be fired for improper conduct, including lying to officials.

Lister was accused of making contact with several female inmates within days of them being released from jail, having sex with one, hanging out with another who had a warrant for escape and lying to investigators – potentially jeopardizing hundreds of his cases.

Lister started or tried to start relationships with several inmates he met at Metro Corrections, using his employment to gain contact information and friending 18 of the women on Facebook, according to an investigative report by jail officials.

Lister resigned rather than be fired. Dozens of his DUI cases have been amended down or dismissed in the last year.

Richwalsky pointed out that some of Lister's cases went forward without him and ended in convictions. Others were dismissed, amended to lesser charges or ended in not guilty verdicts.

Even if it's found that Rehm lied, Richwalsky said there are often ways to go forward with cases without him.

Alvarez said that is going to be difficult.

"I think it calls into question his veracity across the board," he said, especially in cases where someone has refused to take a Breathalyzer test and Rehm's observations of the defendant are important.

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