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The Luckiest Perps

"Distilled water," Silber said under oath, according to a transcript of the deposition. State regulations require distilled water for the calibration process.

"Where does it come from?" Canet asked.

"It comes from the supermarket."

When Canet pressed her on which store she bought the water from, Silber admitted she had fibbed. "And sometimes, I have to be honest," she said, "sometimes if I don't have water -- I did use tap water on occasion."

Bingo. Canet knew he had discovered something big. Because Silber had failed to use the distilled water required under state guidelines, any tests done while tap water was used during the calibration could be voided. The error could throw out the breath-test results in hundreds of DUI cases in Davie.

Canet suspected other departments might be using tap water too. In another DUI case, he questioned Patricia Nanz, who heads the breath-testing unit at the Broward Sheriff's Office. Nanz admitted she also uses tap water. "I think if we went around the state and looked at every law enforcement agency," Canet says, "a great number of them are doing the same thing."

The problem with tap water, according to Canet, is that it contains chemicals that can fool the machine into reporting the presence of alcohol. The Intoxilyzer uses infrared light to detect methyl, which is found within alcohol. Chemicals in tap water, including chloroform and xylene, also contain methyl, Canet contends.

Canet hired Dr. Stephan Rose, a forensic toxicologist from West Palm Beach, to run tests on an Intoxilyzer machine using tap and distilled water. For years, Rose has been called by defense attorneys in DUI cases to argue that the cops are too reliant on the machines. Rose says the machine, with or without distilled water, isn't accurate enough to be used as evidence in court. Its results should be used only to corroborate what cops already believe, similar to the way lie detector tests are used. "The Intoxilyzer is a screening method," Rose says. "It is not a confirmation of intoxication. It is unreliable as criminal evidence."

Using an Intoxilyzer owned by Florida International University, where Rose is an adjunct professor, he ran a series of tests over several days for Canet. When using tap water, the tests found that the Intoxilyzer registered "false positives" -- showing a slight amount of alcohol when it should have shown none at all. It also exaggerated the results when slight amounts of alcohol were present, adding .007 percent to the blood-alcohol level results. The tests, Rose concluded, showed that an Intoxilyzer calibrated with tap water could suggest somebody was drunker than he actually was.

But unlike the prosecutors in Palm Beach who agreed to drop a slew of cases, the State Attorney's Office in Broward was far from interested in giving up, according to spokesman Ron Ishoy, who agreed to comment only by e-mail. "Here's the bottom line. We're not automatically losing even one case," Ishoy said in his reply. "We'll try every single one of these cases, even if we lose the appeal."

Canet took the case to court, convincing seven Broward County judges who hear DUI cases to meet in July for a rare, joint hearing to consider whether breath-test results should be used. Canet represented 300 accused drunk drivers, but if the judges agreed with him, their decision could affect as many as 3,000 cases.

At the hearing, prosecutors called Barfield, the FDLE breath-testing expert, to testify in their defense. Barfield claimed her office performed 75 separate tests on the Intoxilyzer and found that the machine performed perfectly, whether it was calibrated with distilled or tap water. "We tested this machine over and over," Barfield says, "and every time, it performed exactly as it should."

What has happened since the hearing has been an administrative mess. Two judges have agreed with Canet, meaning the breath-test results made on machines calibrated with tap water can't be used in their courtrooms. But five other judges have ruled the opposite way. An appeals court will likely have to decide which judges were right. In the meantime, drunk drivers will hope they appear before either Judge Robert Zack or Judge Michael Kaplan, both of whom have thrown out the breath-test results.

Looking to cast blame for the tap water problems, the Davie Police Department stripped Silber of her duties monitoring the breath-test results and gave her a written reprimand, citing her "contradicting statements" to Canet and her failure to follow established procedures. BSO, meanwhile, has allowed Nanz to continue in her role overseeing the breath-testing unit and did not cite her for failing to follow state regulations.

The FDLE, which is responsible for overseeing breath-test programs, blamed its chief investigator, Warren Sanger, for failing to report quickly enough that the Sheriff's Office and Davie police were using tap water. FDLE was ready to fire Sanger in May, but when he hired an attorney and threatened to sue, FDLE allowed him to resign in June.

Sanger's resignation means that he won't be available to testify, something that's necessary in perhaps hundreds of cases in Broward, Miami-Dade, and Monroe counties. It's Sanger who did the yearly checkups on the Intoxilyzer machines, and without his testimony, there's no way for prosecutors to prove that the work had been done. Sanger has agreed to appear in court for a fee of $200 a day, but the state has said it would pay him only a standard $8-a-day witness fee. His attorney, Michael Catalano of Miami, says FDLE may have sacrificed hundreds of drunk driving cases in order to find a scapegoat. Catalano says that "FDLE has jeopardized thousands of very provable DUI cases."

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