Drunken Driving Convictions Could be Impaired - March 29, 2017 - SF Weekly
SF Weekly

Drunken Driving Convictions Could be Impaired

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An obscure civil lawsuit currently working its way through San Francisco Superior Court has set off a chain of events that could potentially overturn any drunken-driving convictions handed down by the city’s courts over the last year. The lawsuit was filed by a former employee at the Medical Examiner’s office, but one of the suit’s allegations could set off a domino effect that invalidates every DUI conviction in the city since May 2016.

Most haven’t heard much about the civil case filed by San Francisco’s former chief forensic toxicologist, Dr. Nikolas Lemos. Lemos no longer works for the Medical Examiner and has filed a wrongful termination suit arguing that he was inappropriately forced to resign in 2016.

But his complaint contains a bombshell allegation that his successor, Dr. Luke Rodda, is not properly certified or qualified by state standards to perform lab testing on defendants’ blood and breath samples. If true, that could potentially overturn any drunken-driving conviction handed down in San Francisco in the last 10 months.

San Francisco Public Defender Jeff Adachi is taking the allegation seriously. His office is actively using this argument in court and is threatening to relitigate previous cases. SF Weekly obtained a March 21 letter from the Public Defender’s Office to District Attorney George Gascón, in which Adachi says, “This calls into question all of the testing performed by the lab and approved by its Toxicology Supervisor, from May 23, 2016, the date that Dr. Rodda was hired.”

“These are very serious allegations, and if true, constitute grounds that could result in all of the testing handled by the Medical Examiner’s Toxicology Unit being affected,” Adachi writes. “I am directing my staff to begin litigating these issues in individual cases.”

When reached by SF Weekly, the Public Defender’s Office confirmed sending the letter. “Right now, we’re still in the investigative stages,” says Managing Attorney Carmen Aguirre. “We think it might have implications for current and past cases.”

The Office of the Medical Examiner did not return requests for comment, but Gascón’s office did. While the DA’s office is not responsible for hiring or vetting the city’s toxicologists, they are confident that any and all DUI samples used in the last year were properly handled and are admissible in court.

“Dr. Rodda has not tested or attested to samples in any Title 17

cases,” the District Attorney’s spokesperson Alex Bastian tells SF Weekly.

Title 17 is part of a complex set of California public health regulations that dictates police procedures for handling blood and breath samples in order to prove guilt in drunken-driving and DUI cases. It’s an arcane and extensive set of rules that require licensed California toxicologists to have various degrees and certifications, which they must complete in specific timeframes of short-window probationary periods.

The Title 17 requirements for certification are exceedingly nitpicky and demanding. That stands to reason, because Title 17-certified toxicologists confirm lab results that are used to prosecute drunk-driving convictions for which guilty verdicts can imprison people for years, if not life. This is why Lemos felt he needed to blow the alleged whistle on the Medical Examiner’s office.

Lemos’ attorney Robert Nelson tells SF Weekly that his client was badgered into helping fudge Rodda’s qualifications into Title 17 compliance, even though Rodda’s credentials fell well short.

“He was put in a place where he felt like he would be complicit in people potentially losing their freedom, going to jail in a way that didn’t fully comply with the rules,” Nelson says. “He felt he had no other choice but to resign.

“If I were a criminal attorney, I would be looking very closely at whether any of my clients had been convicted in any way in connection with any type of forensic testing that Dr. Rodda had performed,” Nelson tells SF Weekly.

That is exactly what the the Public Defender Office is doing, going all the way back to May 2016. “We are going through on a case-by-case basis, at least for now, cases that involve blood draws,” says Aguirre, referring to DUI convictions that used blood samples as evidence. “We are going to be litigating questions of whether or not the results of the blood draw are valid.”

In the most extreme scenario, DUI convictions in which Rodda did not even perform any testing could still be invalidated just because of his alleged lack of qualifications to head the lab.

“We’re also looking at the bigger question of whether or not the qualifications or certification of the lab are valid,” Aguirre tells SF Weekly. “Does that, in fact, disqualify the lab from presenting valid results?”

As the alleged lack of certification is based on accusations made by a former employee who’s suing a department from which he resigned, whole matter could be dismissed as a grudge waged by a disgruntled departed staffer. But the Public Defender’s Office deems this allegations credible enough that it could send nearly a year’s worth of DUI convictions three sheets to the wind.