Oklahoma Supreme Court to decide DUI cases

Saturday, August 6th 2005, 6:43 am

By: News On 6

OKLAHOMA CITY (AP) _ Thousands of pending driving under the influence cases could be affected by a state Supreme Court decision on two cases involving the use of unapproved equipment to administer breath-alcohol tests.

At least two lawsuits have been filed against the Department of Public Safety that also claim breath-alcohol tests were conducted on unapproved equipment. Confusion over the equipment led to the firing of McBeth Sample Jr., head of the state's alcohol and drug testing board.

Oklahoma County District Judge Patricia Parrish decided Friday she wants to hear more about the Supreme Court cases before ruling on a request by the Department of Public Safety to dismiss one of the lawsuits.

Wellon Poe, DPS attorney, said the Supreme Court's decision could have a significant affect on the lawsuits.

``They have almost identical issues,'' Poe said. ``They're fully briefed and awaiting a decision. They could rule in a way that may not apply, but our belief is that they will apply.''

The cases, one from Grady County and one from Kiowa County, contend that breath tests administered with the Guth 2100 simulator, an electronic device used to calibrate and standardize breath analyzers, should not be allowed as evidence because it is not approved equipment.

Paperwork submitted by the state director of the Board of Tests to approve the equipment listed the Guth 210021 _ not the Guth 2100.

Don Horn, a Chickasha lawyer involved in the Grady County case, said the allegations in the lawsuits are indefensible.

But he doesn't think the Supreme Court decision will be as far reaching as other attorneys might think, because his client appealed at the time his license was revoked.

However, Derrick Morton, an attorney involved in one of the Oklahoma County lawsuits, said thousands of others who did not appeal at the time of revocation should receive the same treatment if the court rules that the tests from unapproved Guth equipment can't be used.

``None of our clients knew they could challenge the revocation,'' Morton said. ``I believe that once DPS was aware that there was a problem with the simulator, then DPS has a duty to either not administer that test, pass the proper rules to make it valid or not revoke someone's license.''