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The Luckiest Perps

But often, it's much simpler to challenge the breath-test results. In most law enforcement departments in Florida, the Intoxilyzer machines are so old that getting a legitimate reading out of them is unlikely. Many departments bought their machines shortly after they came out in 1980. "The technology is no longer state of the art, by and large," Zager says.

In 2002, the state approved a new machine for use in Florida, the Intoxilyzer 8000. Officials at CMI Inc., maker of the Intoxilyzers, didn't return phone calls to its office in Owensboro, Kentucky. But on the company's website, CMI claims the new model "takes accuracy and reliability to a new level."

But the state has resisted bringing in new equipment and instituting new procedures, such as factoring in the temperature of accused drunk drivers.


The resistance to change is another version of the police statistics race, says Mary McMurray, who used to head the drunk driving unit for the Wisconsin State Police and now works as a full-time court expert in Minnesota. Florida officials are driven by fear that previous arrests would be questioned because they were made under the old rules. "They want to get as many convictions as they can," she says. "Instead of doing what's right, they're ignoring the problem.

Accused drunk drivers are far from innocent until proven guilty in the Sunshine State. Shortly after their arrests, drunk drivers must go before a Florida Department of Motor Vehicles board to try to prove their innocence. The same government agency that brought you the DMV office gets to decide how long accused drunk drivers will go without their licenses -- usually three months to a year -- even before their day in court.

It was at one of these hearings in July of last year that lawyer Fred Susaneck spotted something odd on a routine government form.

It noted that five technicians from the Palm Beach County Sheriff's Office had been splitting the duty of maintenance on their Intoxilyzer 5000 machine. Like resetting an empty scale to read zero, the machine needs at least monthly recalibration to make sure it detects no alcohol on the breath of a sober technician. Susaneck knew right away he had discovered the silver bullet of technicalities.

"I started asking them if they knew who last did the maintenance, and they had no idea. They said it was one of five people, but they didn't know who," says Susaneck, a partner in Essen's firm who spent six years as a prosecutor before becoming a defense attorney in 1987. "It became clear they had no idea what they were doing maintenancing these machines."

The problem with the "ring around the rosy" maintenance, as Susaneck calls it, is that those accused of drunk driving can't question those who performed the maintenance. Accused criminals have a constitutional right to confront their accused. "Some people may call this a technicality," Susaneck sniffs. "I've never viewed a constitutional right as being a technicality."

A day after the DMV hearing, the Sheriff's Office changed its policy and put one technician in charge of the maintenance. Sheriff's Office Capt. Nancy Grimes, who's in charge of the Intoxilyzer, says the problem was easy enough to fix. "It was a protocol problem," Grimes says. "We fixed it that day, and that's the end of it."

But the problem was enough to force the State Attorney's Office in West Palm Beach to review every drunk driving charge filed since the maintenance problem began. Elizabeth Parker, the State Attorney's deputy chief of county court, scrutinized 1,100 cases, often reviewing videotapes cops made of the sobriety tests and meeting with every prosecutor handling DUIs. While it may seem logical to go forward with cases of repeat offenders, ethically Parker was forbidden from doing so. In the end, she decided that 170 cases, or 15 percent of the total, couldn't go forward without the breath test.

The dropped cases include those that police officers felt were clear-cut. Take the arrest of Father Gaudioso Zamora, a 41-year-old Catholic priest from Delray Beach. Cops claim they stopped him at 3 a.m. on March 6, 2005, when he swerved his Honda so hard that he drove the car next to him off the road. Zamora, a lightweight at five-foot-seven and 150 pounds, admitted to drinking five to seven bottles of beer earlier that night at a birthday party. According to his arrest report, Zamora failed the roadside sobriety tests horribly, touching his upper lip instead of his nose, reciting the alphabet by finishing "W, X, Y and G." The Intoxilyzer gave him a blood-alcohol level of .17 percent.

Reached on his cell phone, Zamora says his drunk driving was an accident. "Things happen, OK?" he said. The Diocese of Palm Beach wasn't aware of Zamora's arrest until a call from New Times. Lorraine Sabatella, chancellor of the diocese, said she'll investigate it. "We were unaware of it, and we are looking into it."

Luckily for Zamora, his case was dropped anyway.

In the midst of Parker's inquiry into the problems in Palm Beach, another lawyer in Essen's firm, Carlos Canet, made a similar discovery in Broward. During a routine deposition on December 2 in a DUI case, Canet was searching for a technicality by questioning Stephanie Silber, who headed the breath-testing program at the Davie Police Department. He began by asking her obscure questions about the maintenance, including what kind of water she used to calibrate the machine.

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