By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
Martha Roldan, a 45-year-old employee of the state Department of Highway Safety and Motor Vehicles, doesn't have a law degree. She never took the bar exam. In fact, she could be arrested if she ever purported to be an attorney.
But in an office nestled on the south side of the driver's license bureau at U.S. 441 and Oakland Park Boulevard, Roldan wields the power of a judge. On a January afternoon, she sits behind her dark-brown desk dressed in a navy-blue suit with a blue tie featuring small images of the Florida peninsula. On top of a bookshelf, which holds two voluminous tomes regarding DHSMV administrative hearings, rest pictures of her family. On the wall behind her is not a juris doctorate but a framed diploma from the International Driver Certificate Board.
On the other side of the desk, Larry Skurka, a 30-year-old Fort Lauderdale traffic attorney, advocates for an under-age client charged with driving under the influence of alcohol last October. Next to Skurka is Craig Buttery, the Broward sheriff's deputy who conducted the field sobriety test.
Roldan is holding court. Skurka grills the deputy about the accuracy of his Breathalyzer. "When was the last time the Alcosensor PPT was tested and calibrated?" Skurka asks, referring to the brand of Breathalyzer employed by the sheriff's office. Buttery admits that he has not kept maintenance records for the device. "Has the device been tested since October?" No, Buttery admits.
In addition to raising questions about the accuracy of the breath test, Skurka is able to show that, based on previous case law, Buttery may not have had probable cause to pull over his client and require a sobriety test. That raises the type of difficult constitutional questions that, as any regular viewer of the television show Law and Order knows, seasoned criminal judges wrangle over every day.
After listening to Skurka's argument, which is taped for the record by a digital recording device at the edge of the desk, Roldan leans back in her chair. "All motions are denied," she says immediately, then informs the parties that she will make a decision in seven business days about whether to suspend the young man's driver's license.
In the end, the case went, with a sense of crushing inevitability, exactly as most others do. The license was suspended, and the defendant was forced to pay $155 for a permit that allows him to drive to and from his place of employment. That's the way the system works in Florida.
DUI indictments are double-edged in this state: In addition to the criminal charges against an offender, he is also nailed for civil penalties -- specifically, the suspension of his license should he be found guilty. At one time, it was elected judges who handled both civil and criminal DUI rulings; in fact, the same judge often handled both cases. Not so today. In 1990, the Florida Legislature, trying to relieve the state's overburdened court system, passed Statute 316.93, which handed over judicial responsibility for the civil charge to DHSMV.
According to the statute, the agency must provide "neutral detached magistrates" to weigh evidence and make rulings.
But hearing officers such as Roldan are hardly neutral and detached. DHSMV, which controls the salaries of all hearing officers, has a financial interest in finding defendants guilty. With an average of 7,000 DUI arrests per year in Broward County alone, the DHSMV generates about $1 million in annual revenue through Broward work permits. What's more, because hearing officers lack legal education, they often consult with DHSMV attorneys -- that is, the prosecutors -- who in turn explain the law to the "judges."
"If I could tell the judges what the law is, I'd never lose a hearing," says Sam Fields, an attorney with Ruden McClosky who recently filed a lawsuit in Broward County questioning the fairness and constitutionality of these hearings.
Fields' lawsuit, filed late last year in Broward Circuit Court in Fort Lauderdale, involves 39-year-old Lighthouse Point resident Craig Tidey. On September 14, 2003, BSO Officer Charles Grady stopped Tidey for speeding on State Route 816. "He had the odor of an alcoholic bev on his breath and his eyes were red," Grady wrote in his report. Tidey, who was convicted of DUI in Virginia in 1990, refused to participate in a sobriety test and was arrested.
When Tidey retained Fields, the attorney quickly realized that Tidey's case was ideal for questioning the fairness of the DHSMV civil hearings. "Over the last 13 years Tidey's attorney has handled in excess of 200 such hearings," Fields wrote in the lawsuit, summarizing his own history. "Although he has won many of these hearings because of legal reasons (insufficient documents, witnesses who fail to appear, etc.), he has never once won a hearing based on the weight of the evidence."
That's because of the lopsided structure of the hearing process. "Imagine a criminal justice system where there were no more jury trials," Fields says. "All the judges are the employees of Michael Satz, the state attorney. He has the right to hire whoever he wants, and he chooses to hire people who have no legal training and are lucky to have high school diplomas. If they don't do what he wants, he has the power to remove them. Could you imagine the criminal justice system working like this? Of course not. But that's precisely what the DHSMV has here."