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."
Even more frightening for those accused of DUI, the state agency doesn't deny those charges. In response to questions submitted by Fields, Michael J. Alderman, assistant general counsel for the DHSMV, told the court that none of the hearing officers has formal legal training and that they regularly have ex parte communications with agency attorneys, or prosecutors -- that is, unrecorded private discussions either outside of the courtroom or out of the hearing of court stenographers and defense lawyers.
Even totalitarian dictatorships pretend to be fair. But at DHSMV hearings, cases often come down to the defendant's word against the police officer's, and rarely will hearing officers believe the defendant over the civil servant, according to Fields. Additionally, evidence obtained improperly is hardly ever thrown out. For Breathalyzer results to be admitted into court evidence, the arresting police officer must have had reason to make the vehicle stop and then significant probable cause to give the sobriety check -- procedures that create a constitutional litmus test intended to ensure that police officers do not trample on driver's rights. "In many of these cases, where we've lost at the agency, the identical issue comes before the judge [in the criminal case] and we win," Fields says. In fact, Fields has had clients who were found not guilty of DUI criminal charges but still had their licenses suspended following a DHSMV civil hearing.
When he was asked for an interview, Alderman said his agency does not comment on pending litigation. However, he recommended that New Times e-mail him questions. He did not respond.
"In the finite wisdom of the Florida Legislature," Fields says, "lawmakers said, 'We're just going to have Selma and Patty [Homer Simpson's gruff, rowdy sisters-in-law, both DMV employees in "Springfield"] handle these cases.' Can't you just see them? They're smoking cigarettes, giggling, and saying: 'Oh, was that great! We suspended Homer's license again. '"
All of this is not to say that Roldan and other hearing officers do subpar work. Indeed, Roldan appears to perform her duties with respect and courtesy to both the defendants and the police officers testifying before her. In the hearing room, though, she sometimes candidly reveals her lack of legal sophistication. At one point during a hearing, Roldan commented to a defendant who was representing himself: "It's very complicated, very difficult to understand. It's all legal stuff." At another time, explaining her mandate to a defendant, she insisted: "I need to be fair. That's why I'm here, to be fair and impartial."
Fields sees his lawsuit, for which no court dates have been set, as a first step toward eliminating these kangaroo courts, which he believes have survived for more than a decade because their victims aren't popular in society. "You're asking for justice for people nobody likes," he says. "But that's what has to be done. If I don't do it, the government is like anyone else. They're going to do the least they have to do to get the result they want."