LMPD :: Louisville Metro Police Department

At least 600 DUI cases in jeopardy because of lapsed Breathalyzer certifications


Alcohol breath test results in about 600 local drunken-driving cases could be thrown out because four Breathalyzer technicians with the Louisville Department of Corrections allowed their certifications to lapse in September.

Jefferson County Attorney Mike O'Connell said Thursday that his office learned of the issue late Tuesday afternoon and has been looking through the cases - including some that already have resulted in convictions - to notify defense attorneys, police and judges.

He acknowledged the incident could lead to some DUI cases being dismissed, saying it was a "serious evidentiary problem," since the test results would likely be thrown out by a judge if a defense attorney asks.

"It is a very unfortunate situation," O'Connell said.

The Breathalyzer test, which is administered at Metro Corrections following an arrest to determine a person's blood alcohol content, is "the single most important piece of evidence in the trial," he said.

The results of portable breath tests that police officers use in the field are not admissible in court.

O'Connell said he is expecting multiple requests from defense attorneys to have DUI convictions set aside and pending cases be dismissed, adding that prosecutors will evaluate each case to determine whether it can be salvaged with other evidence, such as a field sobriety test, witness testimony and video of the stop.

"This has not happened before that I'm aware of, and we're kind of deciding on how to handle this as quickly as we can," he said.

Because of the discovery, the 22 DUI cases on the docket in Jefferson District Court on Thursday were postponed.

Defense attorney and former District Court Judge Paul Gold, who handles dozens of DUI cases each year, said he is reviewing his cases to see if the certification problem exists, and if so, will "vigorously defend those people."

"The exclusion of the Breathalyzer will greatly decrease the prosecutors' ability to obtain a conviction," he said.

Gold said he expects prosecutors may try to get convictions on other charges, such as alcohol intoxication, public intoxication and wanton endangerment, which would not necessitate the breath test.

O'Connell said he didn't know how the technicians' certifications were able to lapse, but he said people with such an expertise "simply cannot let these kinds of things expire."

Corrections Chief Mark Bolton was out of town Thursday and couldn't be reached for comment, but a press release from Chief of Staff Dwayne Clark said officials discovered on Tuesday that the four technicians had allowed their certifications to lapse.

"This occurred due to a system that allowed individual technicians to track their own recertification," he said. "From this point forward, the department will monitor recertification dates and make sure technicians are recertified at least two months prior to expiration."

Pam Windsor, spokeswoman for Metro Corrections, said Thursday that the jail is still reviewing its process. "It's clear the current system has not been as effective as it should be," she said.

The technicians with the lapsed certifications, who were not named in the release, will not handle DUI Breathalyzer duties until they are recertified Jan. 2. One of the technicians had nearly 250 DUI cases by himself, according to O'Connell's office.

None of the technicians has been punished for the lapses.

O'Connell said there are six other technicians available until then.

Chief District Court Judge Sean Delahanty said he expects the courts to be inudated with motions in DUI cases in coming weeks but praised O'Connell for quickly notifying everyone in the courts about the situation.

"It's truly the ethical thing to do and it's a proactive step to bring this to light today," he said.