SUNDAY EDITION: Hundreds of DUI cases dismissed or in jeopardy because of breathalyzer technician problems
DUI conviction rate is lowest it has been in a decade. County Attorney: "We are not happy about it one bit."
Wednesday, December 24th 2014, 11:21 am EST by
Sunday, December 28th 2014, 2:32 pm EST
LOUISVILLE, Ky. (WDRB) -- Called to a store on Seventh Street Road in March 2013, police found a man “passed out” behind the wheel in a parking lot, his vehicle in drive and a beer in his cup holder.
The man failed a field sobriety test and blew well above Kentucky's legal limit of .008 into a breathalyzer.
But in June of this year, the man's DUI charge was amended down to alcohol intoxication because the key witness against him, the Louisville Metro Corrections breathalyzer technician, was “unavailable,” according to court records and a video of the court hearing.
The technician, Daniel Lister, was not available for dozens of DUI cases - and will not participate in another two dozen or so that are still pending. Lister resigned a year ago after an internal investigation recommended he be fired for improper conduct, including lying to officials.
During the past two years, 52 of the approximately 87 completed cases involving Lister were amended down or dismissed, according to a WDRB review. Prosecutors couldn't say how many of those were directly related to breathalyzer issues.
At the same time, hundreds of additional DUI cases are in jeopardy after another Metro Corrections breathalyzer technician, Brett Rehm, was accused of lying in court records about whether he smelled alcohol on a suspected drunken driver.
The Louisville Metro Police Department said this week it is investigating Rehm for potential criminal charges. Metro Corrections is doing its own internal investigation and has temporarily reassigned Rehm.
The Lister and Rehm incidents are the latest in a series of problems with Metro Corrections' breathalyzer program. Hundreds of DUI cases were endangered three years ago after four breathalyzer technicians allowed their certifications to lapse.
As a result of the problems, the Jefferson County Attorney's Office had its lowest conviction rate this year for DUIs since 2004, about 91 percent, County Attorney Mike O'Connell said. Typically, prosecutors end up with convictions on the original charge about 94 or 95 percent of the time.
“It does cause us some real heartburn,”O'Connell said. “It's very disheartening and we are not happy about it one bit.”
“It seems like every year now, there's a Christmas present for the defense bar,” said attorney Paul Gold, who represents hundreds of DUI defendants. “All of this has tremendously hampered the prosecution's ability to go forward with these cases.”
The percentage of cases amended down to lesser charges has also climbed, from 5.3 percent last year to 6.4 percent this year, according to records provided by the county attorney's office. The number of dismissed cases also has risen.
O'Connell said he has shared his concerns with Metro Corrections Director Mark Bolton.
In an interview, Bolton said “anytime there are issues raised that concern the (breathalyzer) process, well obviously we are very concerned about that.” He declined to discuss the specifics of his conversations with O'Connell.
“I can tell you that we are very concerned and my discussion with the county attorney is that we were going to investigate the issues very, very thoroughly,” Bolton said.
Bolton also said he didn't know this was the worst year for DUI convictions in Jefferson County in the last decade and would like to “drill down” into those numbers to see what the problems may have been.
Training for police?
Besides Jefferson County, Kentucky's other 119 counties train police officers to conduct breathalyzer tests, making it less likely one technician could endanger multiple cases.
But it would be costly to train all of the officers in Louisville, officials said. Bolton said it would cost more than $500,000 to certify LMPD officers and $50,000 every two years to re-certify them.
“That's somewhat significant,” he said.
Alicia Smiley, a spokesperson for Louisville Metro Police, said the department likes to have an independent agency involved with the DUI breathalyzer tests. “It gives you a leg up in court when you actually have another set of independent eyes, totally separate and not affiliated with Metro Police,” she said.
With 22 breathalyzer technicians and roughly 2,000 cases a year, Bolton and O'Connell acknowledged that issues with even one technician can cause a huge ripple effect in the court system. But there is no immediate push for major changes.
“That is something we have to look at,” Bolton said. “In the grander scheme of things, if there is a better way to do it, we are more than willing and able to have those discussions with the stakeholders.”
Bolton said his department has increased its communication with Kentucky State Police, which trains breathalyzer technicians, to ensure that every technician receives regular training and is properly re-certified.
Despite the recent problems, O'Connell said the conviction rate in Louisville is about the same as the national average. And the office noted that some of Lister's cases still ended in DUI convictions.
Also, while the office has not tracked the cases that may have been jeopardized by the technicians failing to get certified in 2011, O'Connell said prosecutors believe far fewer cases were affected than they initially feared.
“It did not bring on the quake of motions to set aside convictions that we may have thought would happen,” O'Connell said in an interview.
Because the technicians were not named, WDRB could not independently verify how these cases were handled.
Gold, a defense attorney, estimated that 75 percent of the dozens of cases he had in which the re-certification of the breathalyzer technicians was an issue were dismissed or amended down.
“The actions prevented (prosecutors) from being able to utilize an important tool they have.”
Investigations of officers
The county attorney's office said Rehm's pending DUI cases are on hold as Metro Corrections investigates.
The office has already amended down two drunken driving cases in which a video was introduced of 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 a man may be dismissed because of the lack of a blood alcohol test, Rehm wrote on the man's blood alcohol report that he “had odor of alcoholic beverage emitting from his breath,” according to the video.
Defense attorneys have said any cases Rehm was involved with will now be tainted as the video will be used to impeach his credibility.
Of the issues with Rehm, Bolton said, “Things are not always as they are originally reported to be. Now with that said, we are investigating that issue very thoroughly. If mistakes were made…we're going to get to the bottom of it.”
Bolton would not say what may have been wrongly reported but said the internal investigation should be complete my mid-January. In the meantime, Rehm has been reassigned from the Breathalyzer unit.
Smiley said police began investigating Rehm Nov. 26, just a couple days after the media reported on the issue.
Rehm did not return a request for comment left through a Metro Corrections spokesperson.
As for Lister, last November, an internal investigation by Metro Corrections recommended that
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.
According to a Metro Corrections' investigation, 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.
Lister has not been coming to court when subpoenaed, Assistant County Attorney Paul Richwalsky said.
Bolton said Metro Corrections turned over its investigation of Lister to LMPD.
The police department talked with Metro Corrections investigators in April and June of 2013, but didn't find anything that reached the level of criminal charges and declined to investigate Lister, according to a spokesperson for the jail.
Smiley, the police spokesperson, also said one woman complained to police about Lister, but the investigation ended when she dropped her complaint.
Lister could not be reached for comment.
Besides the issues with breathalyzer technicians, the county attorney's office has had to deal with cases in which former Louisville Metro Police Officer Chris Thurman was involved.
Thurman, who resigned earlier this month, was indicted by a Jefferson County grand jury in February on charges of official misconduct and theft by deception for allegedly falsifying his time sheet and claiming overtime he didn't work. Those charges are pending.
Thurman still has more than 80 pending DUI cases, according to court records.
But several have already been amended down or dismissed. For example, in March, the case of a Jefferson County teacher accused of killing a woman in a drunk driving crash was dismissed because Thurman was unavailable or willing to testify.
Prosecutors say Christopher Purcell was drunk and behind the wheel in August 2012, when he was involved in a motor vehicle accident involving a motorcycle on Bardstown Road. That accident resulted in the death of 31-year-old Tracey Blevins.
While frustrated, O'Connell said in a system so large, “mistakes” are going to happen.
“The consequences are serious in this context,” he said. “It's not perfect by any means.”
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