His Eyes Were Red and Glassy

— Five years ago, criminal defense and civil rights attorney Mary Prévost began investigating how the City and County of San Diego conducted blood draws from people suspected of driving under the influence of alcohol. But when she sought documentation on the matter, she tells me from behind her cluttered desk, "The city attorney's office practically laughed in my face." Eventually she used a California Public Records Act request to discover that law enforcement agencies hired "unauthorized individuals to draw blood in [our] filthy jails."

Prior to 2004, California Vehicle Code stipulated that only doctors, nurses, clinical laboratory technologists, and other licensed medical personnel "may withdraw blood for the purpose of determining the alcoholic content therein." The law permitted phlebotomists to draw blood in such cases but only under the supervision of physicians and registered nurses.

But American Forensic Nurses, a company that had contracted with city and county law enforcement to conduct blood draws, found it much more economical to use unsupervised phlebotomists for the job. As a result, estimates Prévost, as many as 10,000 people suspected of drunk driving in San Diego County have had their blood drawn illegally over a period of five to eight years. "So I began litigating," she says. "In testimony, one woman said she kept her phlebotomist's supplies under a sink next to the Drano and that she only used a toothbrush to clean her vials if she saw remainders of blood in them when empty."

Last fall, 19 people who were appealing their driving-under-the-influence convictions argued in San Diego County Superior Court that the unauthorized use of phlebotomists to obtain their blood alcohol levels required that the evidence be suppressed. The appellants were represented by Prévost or one of several other attorneys. At trial, however, all their "motions to suppress" were denied.

In the meantime, San Diego law enforcement officials had been getting worried. As early as summer 2001, they began seeking a legislative change to make their use of unsupervised phlebotomists legal, without, according to Prévost, discontinuing it in the meantime. On July 25, 2001, San Diego Police Department criminalist Patricia Lough e-mailed deputy city attorney Shannon Thomas addressing the problem. "Steve Aronis from the [district attorney's] office is pressuring me," she said, "to get a meeting together [as soon as possible]...to write a legislative change regarding the phlebotomy laws.... He is having many problems in court related to this issue." In 2004, Assemblyman Phil Wyman, Republican from Tehachapi, maneuvered a bill through the California legislature permitting licensed, but unsupervised, phlebotomists to perform the blood draws in drunk driving cases.

The new law was not in place at the time Mary Prévost and the other attorneys entered the motions to suppress blood evidence in their clients' cases. All 19 cases were consolidated to appear before California's Fourth Appellate District Court in San Diego. There, according to the court's written opinion filed on May 12 of this year, justices heard testimony from an expert for the county that "the length of time phlebotomists left tourniquets on patients, the storage of their equipment, [whether they used] gloves and...washed their hands...[were not] medically significant."

But during oral arguments, according to Prévost, several justices upbraided the city attorney for initially refusing to give her documentation of the city's practices. And the court granted that the city's and county's use of unsupervised phlebotomists to draw blood had been illegal. Even so, it denied that the appellants' Fourth Amendment right to freedom from unreasonable search and seizure had been violated or that their right to due process of law had been lost. The lower court's decision was upheld.

On the question of equal protection under the law, the court was especially adamant, arguing that the appellants had no legitimate complaints, despite the fact that other defendants in California may not have had their blood drawn by unauthorized personnel. "Here," reads the court's opinion, "the sole circumstance which made the appellants subject to prosecution was behavior which gave law enforcement agencies reason to suspect the appellants had been driving under the influence of alcohol."

Midway through the appeals deliberation, on March 29, Prévost filed a motion requesting that Justice Richard Huffman and the entire appellate panel recuse themselves from the case. "The basis of this motion," she wrote, "is that Justice Huffman's son, Richard Huffman, II, was given a substantial legal benefit in a criminal case by the City Attorney of San Diego, a party opposing Appellants in this case. Neither the City Attorney, nor Justice Huffman, advised Appellants of the potential conflict prior to argument." Prévost went on to note that the mere appearance of a conflict of interest has always warranted recusal.

Shortly after midnight on April 25, 2004, Richard Dennis Huffman, 45, was stopped on Gilman Drive in La Jolla by California Highway Patrol officer G. Mendes. Huffman is a deputy district attorney for San Diego County. Two preliminary alcohol-screening-device tests indicated he had blood alcohol levels of .135 percent and .137 percent. Huffman was arrested and, at a highway patrol office shortly afterward, two breath tests showed his blood alcohol levels to be .09 percent and .10 percent. (The legal limit is .08 percent.) Officer Mendes wrote in his report of the incident: "I recommend that a copy of this report and other related documents be forwarded to the San Diego City Attorney's office for prosecution of Huffman" on drunk driving charges.

Yet the accused was released into his father's care only an hour later, at 2:05 a.m. Mary Prévost wonders why it was Justice Huffman who went to pick up his son. "Wouldn't a 45-year-old man living on his own," she asks, "have his girlfriend or one of his friends come to get him? And how often does anyone arrested for drunk driving receive the 'cite and release' treatment immediately after arrest?"

The senior Huffman and his fellow justices declined on March 30 to recuse themselves from the blood-draw appeal case. In defense of his decision, Huffman wrote, "I became aware [of the situation] on April 25, 2004, when my son called me from the [California Highway Patrol] office. I was advised he would be released if my wife and I would pick him up. I appeared at the office and signed the [required] form. I did not advise anyone at the station of my position or title.... In my view, the fact that an adult child had a legal problem, which was resolved without any involvement by me, does not create a conflict or the appearance of conflict in the mind of any person aware of the facts."

On October 18, 2004, the court backed off charging the younger Huffman with the strict offense of driving under the influence of alcohol and allowed him to plead to a lesser offense. The decision occurred after assistant city attorney Tracy Rogers had completed and signed a "Declaration in Support of Reducing Charges." As reasons for her action, Rogers checked the box on the form called "Problems of Proof." She then checked the following subsections of the box: "No observed erratic driving or defendant not observed driving...; No impairment shown by field coordination tests; Low blood-alcohol level when tested or evidence of rising blood alcohol level."

But arresting officer Mendes's report paints a different picture. Huffman was driving his motorcycle 80 miles per hour when Mendes first spotted him. To catch the suspect, he had to increase the speed of his patrol car to 85 miles per hour on Gilman Drive. After pulling Huffman over and "while speaking with [him]," Mendes writes, "I could smell the odor of an alcoholic beverage on his exhaled breath. I also noticed that his eyes were red and glassy and he was unsteady on his feet.... As Huffman continued his conversation with me, I noted that his speech was thick and slurred."

Mendes continues that he explained "a series of sobriety tests" to Huffman, who then expressed concern he would have problems performing them due to injuries he had experienced. "Huffman did not perform the sobriety tests as demonstrated," the report continues. "Based upon my observations of Huffman's driving, his objective symptoms of being under the influence, his performance on the sobriety tests, I formed the opinion that he was under the influence of alcohol."

The four readings of Huffman's blood alcohol level on the night of the incident show perhaps the greatest failure to square with city attorney Rogers's "Declaration in Support of Reducing Charges." Mary Prévost explains to me that defense attorneys often use the concept of rising blood alcohol levels to argue that smaller amounts of alcohol were in defendants' blood while they drove than when they test in a police station later.

That's because it takes a while for alcohol to enter the bloodstream, the exact time depending on how fast people drink and what they eat before drinking.

But Huffman's readings suggest the opposite. He had blood alcohol levels of .135 percent and .137 percent at the scene of arrest and .09 percent and .10 percent in the station. By the time his blood was tested, his alcohol levels were declining.

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