Blood Simple

A questionable DUI prosecution has attorneys kvetching in cyberspace.

Proving that anyone can start a blog, a local group of lawyers recently got one going that generally reads about as exciting as a court pleading. The Justice Advocacy Association of Broward, made up of about 200 local defense attorneys, calls its Internet experiment JAABlog (jaablog.jaablaw.com), and it's been operating since July. Packed with legalese and largely just a collection of links to law-related articles, JAABlog probably won't attract much attention from the general public anytime soon. But on occasion, one of its posters lets loose with a rant about the decline of civil rights, caused by, the association's posters believe, incompetence and corruption in the county's criminal court system.

Lawyer Craig S. Esquenazi, a JAAB founding member and the man responsible for building the group's website and unmoderated blog, says, "Anytime you put information out there, I think it's a good thing. People can post what they want to post."

"We are simply trying to create a dialogue open to all sides that can address what a lot of people think are real problems here in the Broward criminal justice system," founding member Bill Gelin says.

Already, one of those posts has ruffled feathers in the legal community, raised questions about the way prosecutors handled a DUI case, and led the writer of the offending post to resign from the association.

Frank Maister, a private defense attorney, worked for State Attorney Michael Satz from 1997 to 2001. On September 14, Maister posted a scathing attack on Satz's office, titling it "Wasting Resources."

"This week in front of the Honorable Robert Zack, the State of Florida spent an entire day prosecuting a DUI defendant whose breath test results at the time of his arrest were 0.068 and 0.064, and no evidence of drug impairment," Maister wrote on the blog. "The legal limit for DUI is, of course, 0.08. Defense counsel Russell Williams reports that the jury acquitted the defendant in five minutes, but the state attorney's office openly admitted that they elected to try the case, 'because the intern needed to get a trial. '"

In other words, Maister claimed, the state prosecuted a man it knew was innocent only to get practice for a green lawyer. He went on, referring to what a waste of time it was for a citizen jury: "So, fourteen members of the community, who were falsely told that they were doing an important civic duty, were held captive for an entire morning, so that an intern could try a case. A Judge, a courtroom, a clerk, seven jurors, a bailiff and police officer-witnesses, all needlessly spent an entire day in trial on a case where the evidence relied upon by the state showed that the Defendant had a breath alcohol level UNDER THE LEGAL LIMIT. The Judge had no ability to prevent this trial, neither did the defense, the clerk, the bailiffs, or the jurors. I believe that all those who spent their time participating in State of Florida v. Steven Zack this week, are entitled to an explanation as to why their time was well spent."

Ron Ishoy, spokesman for the state attorney's office, tells New Times that prosecutor Scott Janowitz did make the "flip" comment about trying the case so intern Arielle Demby could learn from the experience. But he says prosecutors still believe in their decision to try Steven Zack (no relation to Judge Robert Zack).

"Even though the jury found the driver not guilty, we stand by this prosecution," Ishoy says. "It's our job to protect the community from impaired drivers."

Police arrested Zack on September 17, 2005, after he rear-ended a motorcyclist. It happened shortly after midnight in the westbound lanes of East Las Olas Boulevard at SE Third Avenue. The impact knocked Grace Puello off a yellow, 2004 Suzuki motorcycle. Zack told police Puello had been stopping and starting erratically for a few blocks when he hit her. Puello was also cited after the incident for driving with a suspended license.

In a police video of the arrest, Zack, now 45, told an officer he'd had two glasses of wine with dinner. He refused to perform field sobriety tests.

"I'm not going to do the monkey dance out here," said a slouching Zack, hands in his pockets. "I'm not going to embarrass myself."

Instead, he asked to take a breath or blood test.

The officer on scene told Zack that police can administer a blood alcohol test only after making an arrest. Then he cuffed Zack.

Zack blew twice at levels of .068 and .064, both, as Maister pointed out, below the legal limit of .08.

But Ishoy counters that state law says that a breath test level between .05 and .08 gives no presumption of being impaired or not impaired. Only less than .05 is considered not impaired, he says. Zack was not charged for having an unlawful blood alcohol level in his bloodstream; the state can use other indicators to prove a DUI charge, Ishoy says.

Officers testified that Zack slurred, smelled of booze, and had trouble reciting his phone number after the crash. And the fact that the woman whom Zack hit suffered minor injuries is why the State Attorney's Office took the case so seriously, Ishoy says.

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