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Judge sets limits on breath test

A county judge's ruling Wednesday may make it harder for Hernando County prosecutors to use the results of Breathalyzer tests in drunken driving cases. County Judge Peyton Hyslop's ruling that state guidelines directing the inspection of machines are too vague means prosecutors would have to use expert witnesses to validate the results of breath tests.

Hyslop made his ruling on a motion filed by three local lawyers in May, challenging the validity of test results.

Similar motions have been presented in more than half of Florida's counties in recent months, said Elizabeth Hapner, one of the lawyers who argued Wednesday's case. In almost all of those counties, judges ruled the same way as Hyslop.

Hyslop said his ruling is limited because it only applies to the cases presented by the defense lawyers who filed the original motion and two other local lawyers who had specifically asked that their cases be included in Wednesday's proceedings.

The judge also said his ruling applies only to the state law that automatically allows the results of the breath test to be admitted in court. A prosecutor still can get the results admitted by producing an expert witness to vouch for the accuracy of the test.

"It's going to turn a one-day trial into a three-day trial," said Assistant State Attorney Rita Battista, who argued that the breath tests should be automatically valid.

She said prosecutors have told her they can make each drunken-driving case a prolonged ordeal by repeatedly questioning the expert witness.

"That's okay with me," she said. "It's more impressive to the jury. They get to see how these work, and they do work well."

She also said the rulings in other counties have prompted the state Department of Health and Rehabilitative Services (HRS) to begin drawing up new guidelines for the inspection of the machines that will answer the challenges to the tests' validity.

The new rules should be ready by August, Battista said. "That's what makes this so futile."

HRS originally was given the power by state statute to write the laws for their inspectors to follow. But Hapner of Tampa and Brooksville lawyer John Vitola argued that HRS failed to produce a statewide standard for determining how accurate Breathalyzer machines are. Inspectors in every county could work with different guidelines, so test results may vary from county to county.

Vitola disagreed that Hyslop's ruling will be futile, at least not until changes are made in the law.

Though the ruling may only apply to the cases presented Wednesday, it also may set a strong precedent for other cases.

Since Hyslop ruled in favor of the motion he presented, "when you file this motion, I think you're sitting pretty good," Vitola said.