By TASGOLA KARLA BRUNER
The Atlanta Journal-Constitution
Two DUI attorneys say there is a flaw in an instrument used by the Georgia Bureau
of Investigation to test for blood alcohol, and that it has caused drivers around
the state to be convicted in error and allowed some guilty drivers to go free.
The lawyers on Friday sent a letter to the state notifying officials that they intend to file a class-action lawsuit seeking at least $1,000 per plaintiff.
The suit could potentially involve thousands of people around the state who have been convicted of driving while intoxicated.
Attorney Billy Spruell of the Atlanta firm Spruell, Taylor & Associates and Douglas McDonald of the Cornelia firm McDonald and Cody accuse the state of "malicious prosecutions" of people whose offenses involve blood alcohol analysis.
John Bankhead, spokesman for the Georgia Bureau of Investigation, said the agency identified the problem with the machine and took appropriate action to correct it. The machine, which tests multiple blood samples simultaneously, switched samples twice.
In a March 17 memo to GBI director Vernon Keenan, Dawn Diedrich, deputy director of legal services at the GBI, stated that two instances of sample switching occurred, one on Oct. 20, 2000, and one on Oct. 26, 2001, which resulted in four cases' getting incorrect results.
The six-page memo went on to say that the blood alcohol instrument -- known as the 6850 Headspace Gas Chromatograph -- had been upgraded and that the analysis procedure was revised to ensure switching would be immediately recognized.
According to the memo, no other reports of any samples being switched have been found since Feb. 18, 2002.
But a May 2002 exit interview of GBI forensic scientist Evelyn Rawcliffe, obtained by the Journal-Constitution through the Open Records Act, stated that she believed there was still a problem. She said the new cross-checking system couldn't catch all the errors because they were so random.
"I know if one of my family members were charged with a DUI, I would have an attorney demand a test from a private source," Rawcliffe stated. Contacted at her home Friday, Rawcliffe said she still stood by her comments in that exit interview.
Bankhead said there were other employees who left the GBI who "were not convinced that the matter was resolved."
Attorney Spruell claims the March 17 memo was "a cover-up."
"There are substantial facts that disprove what the state is contending," Spruell said.
Christina Maehr, a spokeswoman for Agilent Technologies, based in Palo Alto, Calif., maker of the chromatograph, said the company "provided some enhancements to the state of Georgia to improve the usability and reduce the chance of user error."
"There's not an inherent flaw in the instrument; it just requires that the user take certain actions when using it. And if [it is] not used properly, then that can, of course, result in error," she said.
The lawsuit will initially be filed with two plaintiffs listed. A federal or state judge will have to determine whether there are other plaintiffs with sufficiently similar claims to warrant the certification of a class-action lawsuit, said Bill Clark, public affairs director of the Georgia Trial Lawyers Association.