Judge won't allow second test results

Updated: November 9, 2010, 3:31 PM ET
Associated Press

FORT LAUDERDALE, Fla. -- Prosecutors were barred Tuesday from using an illegal blood test in the DUI manslaughter trial of former major league ballplayer Jim Leyritz to calculate how drunk he was at the time of a fatal December 2007 crash.

Broward County Circuit Judge Marc Gold had previously ruled that a second blood test could not be used as evidence. Prosecutors, however, insisted they could still allow a state toxicologist to use its results in concluding Leyritz's blood-alcohol level was 0.18 when the crash occurred.

Not so, Gold ruled, noting that the key reason for keeping improper evidence out of trials is to ensure investigators do things right.

"I find it's a constitutional violation," Gold said. "The whole basis is deterrence. Unless this is excluded or kept out, I find it would be an incentive to improper conduct."

The decision marked another setback for prosecutors in the case against Leyritz, a former New York Yankees World Series hero who faces between four and 15 years in prison if convicted. He is accused of driving drunk after celebrating his birthday, running a red light and slamming into a vehicle driven by 30-year-old Fredia Ann Veitch, killing the mother of two.

Two key prosecution witnesses in the trial have also been less than certain about whether Leyritz ran the red light. Jurors also learned that Veitch, too, was drunk on the night of the crash.

The chief toxicologist for the Broward County Medical Examiner, Dr. Harold Schueler, was allowed to testify that an average male would have had a blood-alcohol level of about 0.19 percent three hours before a blood test showing a 0.14 level -- as was the case in the Leyritz crash. That's equivalent to a man consuming at least 10 shots of vodka, Schueler said, but those numbers could not be conclusively applied to Leyritz.

"Average isn't a scientific measuring rod, is it, doctor?" asked Leyritz attorney David Bogenschutz. "Do you know anything about Jim Leyritz? Do you know anything about his drinking patterns?"

"No, I do not," Schueler replied.

Leyritz refused to take a breath test shortly after the Dec. 28, 2007, accident. About three hours later, a first blood test found the blood-alcohol level of 0.14 percent, above Florida's 0.08 limit.

Then investigators took a second draw of blood, which is not authorized by state law and was done without Leyritz's consent. Bogenschutz succeeded in getting the results of that test -- which showed a 0.13 percent level -- thrown out.

On Tuesday, he argued the state could not use that second test to come up with its higher Leyritz blood-alcohol estimate at the time of the crash.

"There's no way around this, judge," he told Gold. "There's no authority at all for this. None."

Testimony is expected to continue for several weeks, and it's unclear if Leyritz will take the stand. Prosecutor Stefanie Newman may wrap up the state's case this week.

Leyritz, 46, settled a wrongful death lawsuit earlier this year by agreeing to pay Veitch's family $250,000 in insurance and $1,000 in monthly payments out of his own pocket for 100 months.

Leyritz, mainly a catcher in an 11-season big league career, is best remembered for hitting a dramatic home run for the Yankees in the 1996 World Series. He also played for the Angels, Rangers, Red Sox, Padres and Dodgers.


Copyright 2010 by The Associated Press

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