Waiting to Exhale

Could faulty equipment have caused false arrests for DUI?



Three Ravalli County residents have filed a lawsuit in U.S. District Court in Missoula, challenging their DUI convictions on the grounds that the breathalyzer used to conduct the tests was faulty, and that law officers and county attorneys knew it was not working properly, but never told the defendants.

The Ravalli County Commissioners were served with the lawsuit last Thursday and have referred it to County Attorney George Corn for review.

According to the complaints, Kathleen George, Stephen Perdue and Phil Bergholm were each cited for driving under the influence of alcohol after blowing into the breathalyzer machine at the Ravalli County Jail on separate occasions between Dec. 9 and Dec. 16, 1996.

However, the complaint states, the machine had not been working properly since at least Dec. 11. On that date, a detention center employee, Roland Lamar, was accused of drinking alcohol on duty. He was ordered to breathe into the breathalyzer and it registered that he was legally intoxicated.

“I had about two hours left on a day shift when my supervisor insisted she could smell whiskey on my breath,” Lamar remembers. “I knew I hadn’t been drinking so I took the breath test. I was in shock when it said I was legally drunk. I thought I was being set up.”

Lamar insisted he was innocent, and three other Ravalli County Sheriff’s Office employees all performed the same test. It registered that detention officers Marvin Beecher and Gary Hawker and R.C.S.O. Sgt. Bruce Hennel were also legally drunk. All four men went to Marcus Daly Memorial Hospital where blood tests for alcohol were performed. All four men tested negative for alcohol.

“Before the others tried it, I was told to come back the next day in civilian clothes with a union representative and an attorney. I was fired,” Lamar states. “I almost walked out in disgust, but, instead, I kept insisting the machine was wrong. Sgt. Hennell breathed into it to show me it was ‘always right’ and he registered as drunk, too. So did the other two guys.”

Lamar was fired for an unrelated matter three years later and has a lawsuit pending in that affair. While discussing his case with Hank Waters, who is his attorney, Lamar related the incident of the breathalyzer, which led to Waters searching for people convicted of DUI in that time frame. He found three: George, Perdue and Bergholm.

County employees were aware that the machine was reading that people who had not been drinking were intoxicated, according to the lawsuit, but it was kept in service without repair.

None of the three defendants was told of the possibility that the breathalyzer had not been functioning properly, an omission the lawsuit terms “egregious” and in total disregard for the defendants’ Constitutional rights.

None “was informed that the key piece of evidence against her/him, the blood alcohol content registered by the breathalyzer machine, was suspect,” reads the complaint.

Because of the “presumed accuracy” of the breathalyzer, all three of the plaintiffs pleaded guilty to DUI violations and “continue to suffer direct and consequential pecuniary and emotional damages.”

The lawsuit claims the county’s deliberate concealment of the malfunctioning breathalyzer gives the plaintiffs legal standing to ask for punitive damages as well as actual damages, attorney fees and court costs.

The plaintiffs are being defended by Hamilton attorneys Steven Eschenbacher and Hank Waters. Waters has spent more than six months researching the case. It was filed in U.S. District Court in April but the county was not served with the complaint until last week.

According to Deputy County Attorney Jamie McKittrick, the machine was kept in use until Dec. 13, when it was sent to the Montana State Crime Laboratory for repair. It was replaced with a new machine in January 1997.

Crime laboratory personnel term the false reading “ghosting” and say the problem is usually extremely small—occurring in about one or two readings out of a million. In ghosting, the machine reads water vapor in breath as alcohol. Usually the ghost readings are not higher than .02 percent, five times below the legal intoxication limit of 0.1 blood alcohol content.

The lawsuit contends the machine was malfunctioning far worse than a “ghosting” effect if four county employees all registered as intoxicated and hospital-administered blood tests proved that they had no alcohol in their systems.

A pre-trial conference between attorneys has been scheduled for Sept. 22 in Missoula.


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