An' Jushtiss f'r All!
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.
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.
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.
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.
"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."
So Miami-Dade may soon join Palm Beach County in throwing out perhaps hundreds of cases, something that's becoming common in a time when almost anybody can beat a DUI bust.
The 170 accused drunken drivers who had their cases dropped thanks to sloppy police work include a doctor, a priest, a teacher, and a stripper. What they had in common, according to the cops who arrested them, were some bad driving, a breath-alcohol reading above the .08 percent legal limit, and poor performances in roadside sobriety tests. Here, from the pages of Palm Beach County police reports, are some of the folks who walked courtesy of the "ring around the rosy" technicality:
Andrew Weiss, 45, of Boca Raton, doctor.
Why he was stopped: The doctor, who specializes in pain management, was speeding and changing lanes in Boca Raton in his Mercedes S-series on the night of March 8, 2005.
What he said: Weiss went from A to V, then Z. (Coincidentally, Weiss was also arrested that night on a warrant for federal charges of illegally dispensing oxycodone.)
Machine results: .11 blood-alcohol level.
Summer Pauley, 27, of Port St. Lucie, entertainer.
Why she was stopped: Pauley struck the grass median at the corner of A1A and Indiantown Road in Jupiter shortly before 5 a.m. January 8, 2005.
What she said: Customers had bought her untold drinks, Pauley told the cops. During questioning, Pauley said she had just realized she had put her shirt on backward before leaving work. When asked to recite the alphabet, she didn't get far, then explained that she's a bad speller.
Machine results: .161 blood-alcohol level.
Jason Holloway, 25, of Loxahatchee, draftsman.
Why he was stopped: Instead of putting his Jetta in drive while waiting at a stoplight on the night of November 15, 2004, on Biscayne Boulevard in West Palm Beach, Holloway put it in reverse. Unfortunately, a police car was behind him. He tapped bumpers before realizing what happened.
What he said: He'd only had two beers, but Holloway told the cops he "deserved what he was getting" and that he was "glad he did not kill anyone or their family because he could have."
Machine results: .145 blood-alcohol level.
Anthony Coppola, 56, of Wellington, director of the Saratoga Polo Association and Polo Club in Saratoga, New York.
Why he was stopped: Just after midnight on November 21, 2004, Coppola tried to take the turn into the Palm Beach Polo Club in Wellington, where he owns a home. He jumped a curb, hit a gate, and struck a tree.
What he said: He told a nearby security guard: "I didn't drink too much. I just came around a little too fast." He admitted to "probably" being drunk after downing about four beers at the Players Club but said it was "debatable" whether he was feeling the effects.
Machine results: .145 blood-alcohol level.
What he says now: "My attorney got rid of it. I don't really have much to say about it."
Suveshen Naidoo, 25, teacher.
Why he was stopped: Naidoo was doing 70 mph on Lake Worth Road at 2 a.m. January 9, 2005, when he swerved into oncoming traffic. Unfortunately for Naidoo, the car he almost struck heading in the opposite direction was a cop car driven by a Broward County deputy on his way home.
What he said: He said he'd had only a couple of Budweisers while fishing with friends in Loxahatchee.
Machine results: Refused the breath test.
Stuart Ross Hubler, 23, student.
Why he was stopped: Hubler was dozing in his car in the right lane of traffic on Military Trail in West Palm Beach. It took five minutes for cops to wake him.
What he said: Claimed to have drunk three beers at his house, but during sobriety tests, he fell over, catching his car to prevent sprawling on the ground.
Machine results: .167 blood-alcohol level.
Thomas Rising, 37, of Palm City.
Why he was stopped: The eight-foot boat he was spending the Fourth of July on in 2004, off Riviera Beach, had no lights, catching the attention of the Marine Patrol.
What he said: Rising told the Marine Patrol officers that he had an "important job" and threatened to never return to Peanut Island for recreation if they arrested him. Asked how much he had to drink, Rising said defiantly, "Not enough." Marine officers subdued him after he belligerently refused to do sobriety tests.
Machine results: .177 blood-alcohol level.
William DeSoto, 62, of West Palm Beach.
Why he was stopped: On November 6, 2004, DeSoto pulled a .45 caliber from his waist band, put it on the counter of Gator Guns in West Palm Beach, and asked for ammo. He left with it, then came back a few minutes later and complained that the bullets didn't work. Gator Guns employees called police, who found DeSoto's Black Lincoln Town Car crashed into a parking lot median.
What he said: Claimed he had three beers to get up the courage to shoot himself. Cops threw him in the drunk tank.
Machine results: .156 blood-alcohol level.
What he says now: Attorney John Cleary says that even without the technicality, DeSoto would've gotten off by claiming temporary insanity. A day after trying to shoot himself, Cleary says, DeSoto downed a gallon of Drano. He survived that too.
Jose Silva, 28, of Wellington, heavy equipment operator.
Why he was stopped: Three out of four of the tires on Silva's Ford pickup were flat when cops pulled him over on Northlake Boulevard in West Palm Beach on the morning of March 20, 2005.
What he said: Silva admitted to drinking five or six beers. There was vomit on the outside of his driver's door.
Machine results: .117 blood-alcohol level.
Kurt Jagers, 27, pro surfer.
Why he was stopped: Jagers was doing 75 mph on Military Trail in Boca Raton when police pulled him over November 2, 2004. Jagers had sprayed himself with cologne, but he still smelled of liquor.
Machine results: .184 blood-alcohol level.
Shultz Cesar, 27, salesman.
Why he was stopped: Cesar couldn't stay in his lane, or in any of three lanes, on Lake Worth Boulevard, at about 4:30 a.m. November 2, 2005.
What he said: Cesar admitted to having a glass of wine at the Tuxedo Restaurant. But police thought better when they saw that Cesar had a previous conviction on his record for leaving the scene of an accident with a death.
Machine results: .150 blood-alcohol level.
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