Because of faulty Breathalyzer, Philly D.A. gives 1,500 another chance

Six weeks after Philadelphia police acknowledged that four Breathalyzer machines were not properly calibrated, the District Attorney's Office has decided to give almost 1,500 people arrested for drunken driving the chance for another day in court.

"This was an unfortunate case of human error," District Attorney Seth Williams said in a statement Friday. "But we identified it and have started the process of correcting any mistakes that were made."

The people being offered a new trial were those charged in Philadelphia for driving while intoxicated between September 2009 and November.

All the cases were identified in an internal review by the city prosecutor's office as involving one of four faulty Breathalyzer machines.

Even before the district attorney's announcement, Municipal Court President Judge Marsha H. Neifield had begun hearings to field petitions for new trials.

The Wednesday-morning hearings began April 27 and will continue Wednesdays at 11 a.m. in Courtroom 406 of the Criminal Justice Center, 13th and Filbert Streets.

Tasha Jamerson, spokeswoman for the District Attorney's Office, said that as of early this week, about 20 people had requested new trials and five had been granted.

A new trial does not necessarily mean acquittal. Even without Breathalyzer results, a prosecutor may have the arresting officer testify about a driver's "general impairment" - unsteady gait, slurred speech, a strong odor of alcohol on the breath - that could support conviction.

Jamerson said it was not possible to estimate the cost of the retrials, although they will certainly swell the docket of Municipal Court cases in the near term.

Joseph Kelly, a Port Richmond defense attorney who specializes in DUI cases and one of the first lawyers to challenge the police machines, said new-trial requests have had a positive response by the court.

Kelly said he had filed eight requests and one had been scheduled for retrial.

Bradley Bridge, an assistant Philadelphia public defender involved with the review of city DUI cases involving the faulty Breathalyzers, agreed with the estimate of cases eligible for retrial.

Bridge, however, said he was concerned about the validity of any Breathalyzer testing, especially since his office found a faulty Breathalyzer used at the state police Belmont barracks, whose troopers patrol the Schuylkill Expressway and I-95.

Bridge said the suspect machine at Belmont was used for three months after testing showed it was miscalibrated, from Nov. 24 to Feb. 24.

He said he did not know how many cases might be affected by the state police machine but added that those cases were also prosecuted by the Philadelphia district attorney.

Bridge noted that Philadelphia police called on the state police to reexamine and calibrate their Breathalyzers.

"The problem, it seems to me, is that because the identical problems have occurred with the state police, that maybe this is more voodoo than science," Bridge said. "Basically, maybe we should ask if this evidence should be admissible in any court of law."

Williams' review started after a March 23 announcement by Police Commissioner Charles H. Ramsey that four of eight police Breathalyzers were not properly calibrated.

Breathalyzers use a person's exhaled breath to gauge if their blood-alcohol level is above the 0.08-percent threshold to be charged with driving under the influence. But to ensure accuracy, the device must be calibrated by a testing lab and checked regularly by the police operator with measured test samples.

The officer in charge of certifying the machines' accuracy has been moved out of the job and an Accident Investigation Division captain was moved to night command.

When the District Attorney's Office first announced its review by an internal team - led by Edward McCann, deputy of the trial division, and Lynn Nichols, chief of the South Division Bureau - officials estimated that 1,147 DUI cases might be compromised.

Ultimately, prosecutors said, they found 2,126 cases where faulty devices had been used. Of those cases, the District Attorney's Office said, 667 were ineligible for new trials, because an arrest was not made because the person's breath-alcohol level was below 0.08 percent, the person was acquitted, or charges were dismissed.

Since then, McCann has implemented internal changes including retraining prosecutors about DUI cases and having district attorney's supervisors make their own calibration checks of police Breathalyzers.

Kelly said he believes there were other compromised cases that must be addressed, such as arrests between November and March 23, in which the Breathalyzers were checked by the officer who has been removed from the job.

"My argument is, there might be other persons who want to challenge this," Kelly said.

Contact staff writer Joseph A. Slobodzian at 215-854-2985 or jslobodzian@phillynews.com .