By Terrence McCoy
By Allie Conti
By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
September 19, 2004, didn't seem to be Marcie Lynn Musgrave's lucky day. The petite blond, two months shy of her 21st birthday, had just spent the night partying on Clematis Street in West Palm Beach. As she headed home in her car, an off-duty cop followed. He had noted that, as she drove, Musgrave vomited out her window. Continuously. She did it all the way home, heaving as she went, West Palm Beach Officer Pat Ross said afterward.
He followed Musgrave down Okeechobee Boulevard, and he continued to tail her as she puked her way south on Parker Avenue. The officer stayed on the phone with the police station until an on-duty cop showed up to pull her over.
Musgrave denied everything (not a bad strategy, lawyers who handle DUI cases will tell you). Asked why she was upchucking out her window, the arrest report said, Musgrave, who did not return phone messages for this story, retorted defiantly: "I wasn't throwing up."
At the jail, the cops told Musgrave to stand in front of the infamous Intoxilyzer 5000, the state's weapon of choice in testing the breath of accused drunk drivers. The briefcase-sized device of brushed steel looks like something out of a 1980's Radio Shack catalog. It has only two buttons, power and start, and a simple, green LED display that blinks "BLOW" in block letters. The cops attached a disposable plastic mouthpiece to an arm that extends off the side and told Musgrave to blow as hard as she could into it. The machine screeched like an old dot-matrix printer and spat out a card with the bad news: The Intoxilyzer reported her blood-alcohol level to be .10 percent. That's two-hundredths of a percentage point higher than the legal limit in Florida and enough for Musgrave to catch a drunk driving charge.
Like most criminal cases, Musgrave's misdemeanor charge languished in the bowels of the court system for nearly a year. Then, in August, her luck changed dramatically. Thanks to some shoddy work by the technicians who maintain Palm Beach County's main Intoxilyzer machine, prosecutors dropped drunk driving cases for Musgrave and 169 others. The Intoxilyzer technicians had been doing improper maintenance on the machine for a year, an enterprising defense attorney had discovered, and the state was forced either to drop the cases or go to court with little evidence.
Almost a thousand other Palm Beach County cases have been similarly weakened, lawyers say, with prosecutors forced to go forward without the breath-test results. Even in cases like Musgrave's, where a cop's testimony alone might have seemed enough to wring out a guilty verdict, prosecutors say they usually need more to bolster DUI cases. That's because jury members are likely to have had experiences of their own with driving drunk. Call it jury empathy; for the prosecution side of the courtroom, it can make for a tough crowd.
The blunders that have allowed a slew of accused drunk drivers to walk recently are not a rarity. In fact, a recent wave of such mistakes is indicative of the uncertain technology used to prosecute DUIs. Florida's police departments have chosen to use balky, outdated equipment that's often as much as two decades old.
There are new, more accurate machines available, but law enforcement agencies say that a statewide changeover would just make DUI cases in the pipeline vulnerable to the predatory attacks of clever lawyers.
According to Laura Barfield, who's in charge of the Florida Department of Law Enforcement's breath-testing monitoring program, buying the new machines would put into question any arrest made on the old machines. "It would open the door for defense attorneys to question why we haven't used the new one," she says, repeating the bunker-like philosophy of cops and prosecutors who have been stung by smart defense lawyers.
Those lucky defendants accused of drunk driving in Palm Beach have some happy compatriots in Broward County and elsewhere in the state. Technicians who run Intoxilyzer machines in Broward have had maintenance problems of their own, perhaps jeopardizing thousands of other DUI cases, and lawyers who specialize in DUI cases say every county in the state may have similar faults with Intoxilyzer maintenance.
Drunk driving is still the third-most-prosecuted crime in Florida (after theft and assault), but lawyers pick apart DUI cases like vultures poking the most decayed part of roadkill. Their success has frustrated cops, who are arresting fewer drunk drivers every year in Florida. While it's no surprise that, in our legal system, only the rich can manage an O.J. Simpson-style murder defense, it is -- there's no better word to describe it -- sobering to realize that anybody with a few thousand dollars to spend on a lawyer can almost assuredly beat a drunk driving charge.
Walking into the Aventura office of Richard Essen feels a bit like being ushered into the headquarters of a Sicilian businessman in northern Jersey. On a recent Monday morning, the hefty, 67-year-old Essen fills the chair behind his redwood desk as his cadre of lawyers and an investigator stand solemnly in a semicircle around him. Essen's wearing a blue dress shirt with red suspenders and has a suit jacket draped on the chair behind him. His arms stretch out in front, gripping his desk as if he's preventing it from taking off. He shakes hands without getting up and gestures to a chair among the simple furniture in the small office that overlooks a parking lot.