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The Luckiest Perps

This is the lair of the DUI King. Essen's firm is responsible for uncovering the Intoxilyzer problems in Broward and Palm Beach counties, and Essen himself has become a legend for helping to shape the lucrative industry of DUI defense.

Essen was practicing law for about two decades before he got the idea of a practice specializing in DUIs. In the mid-1980s, he converted the firm he had inherited from his father into what he says was the first law firm in the country to do only drunk driving cases. "Before that, I was defending drug cases and murder," Essen says. "There were some very bad people going back on the street. I never considered drunk driving to be a crime. I wanted to defend people I knew, people who just made a mistake and weren't criminals."

Essen has helped to define the technicalities that dominate DUI defense.

Lawyer Michael Cohen tests the Intoxilyzer.
Lawyer Michael Cohen tests the Intoxilyzer.
Richard Essen at his Aventura office
Richard Essen at his Aventura office

Pick any of the myriad details that cops use to try to prove an arrestee's drunkenness and Essen and Co. have a ready defense. Your eyes looked bloodshot when you were pulled over? Maybe it was from contact lenses that needed eye drops. A failed roadside sobriety test? It could have been the result of blinding lights from a patrol car. Did you slur your speech? Maybe you should have removed your ill-fitting dentures. There are always explanations.

There's even a simple, unassailable defense for the case of the drunk driver who falls asleep at the wheel -- perhaps like Tyler Lower, a 25-year-old golf attendant from Palm Beach Gardens. According to a February 25 arrest report, Lower didn't quite make it over a speed bump on Vision Terrace in Palm Beach Gardens. Cops found him slouched over the steering wheel, car running, transmission in drive, with his car paused on the upside of the speed bump. Cops say it took them 30 seconds to wake Lower up, after they had put his car in park. During sobriety tests, he reportedly said, "I can't do this sober." The Intoxilyzer claimed he was more than two times the legal limit, with a blood-alcohol level of .18 percent.

Lower's case was one of the 170 thrown out in Palm Beach County because of the Intoxilyzer maintenance problems. But if it hadn't been, Essen suggests an elegant response to the charges: The defendant was too tired to perform the tests.

Essen claims to have won 1,800 straight cases without a loss. His record has earned him the attention of the Wall Street Journal, which did a front-page profile of him in 1986. He has appeared in papers from Miami to San Francisco, on Oprah and CNN. A 60 Minutes profile called him the drunk driver's "best friend." He now boasts of a record for his law firm somewhere near 11,000 wins and about 100 losses. It's a number that's impossible to confirm, but if true, it means he's batting more than .900.

The fact that lawyers like Essen have begun attacking DUI charges could help explain why drunk driving arrests in Florida have been on the decline. Florida Department of Law Enforcement statistics show that, while the state's population has jumped by 23 percent in the past decade, DUI arrests have increased by only 8 percent. In fact, drunk driving arrests have decreased statewide in recent years. The same holds true for South Florida. Cops in Broward and Palm Beach made 7,715 drunk driving arrests last year; the last time it was that low was 1998.

Since his early days, Essen has hired seven lawyers and opened two satellite offices, and he says the firm now works in every county in Florida. His promise of getting almost everybody off doesn't come cheap: $10,000 for a case that will almost certainly not go to trial.

For that kind of money, you get the works. It should be no surprise that two lawyers in Essen's firm were responsible for discovering the Intoxilyzer maintenance problems.

As Essen's firm grew, so did an industry built on DUI defense. Lawyers prospered, but so did court-appointed experts, often paid thousands of dollars an hour to testify. There's even a National College for DUI Defense in Alabama that trains experts and lawyers.

Many of the authorities called to dispute DUI charges are retired cops, whose salaries multiply by switching sides. Take, for instance, retired Broward County deputy Jay Zager. His job was to run the Breath Testing Unit for the Sheriff's Office. He oversaw the Intoxilyzer maintenance and reviewed DUI cases to make sure the cops followed the rules. After he retired two years ago, Zager switched sides. Defense attorneys from around the country now send him cases to review to determine if the cops did anything wrong. Deputies he worked with have called him a traitor for helping defend accused drunk drivers, but Zager says the truth is that prosecutors and cops often get tunnel vision trying to convict.

"They don't want to see that there are flaws with a case," he says. "If somebody's life and liberty is on the line, you've got to make sure the case is good."

For instance, if the accused drunk driver had been drinking shortly before the test, the results can be skewed because of alcohol in the mouth. If the body temperature of the accused has risen -- something not uncommon in Florida -- every degree can add as much as a 7 percent change to the breath-test results.

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