Lobbying Under the Influence
David Heilman is making the most of happy hour. A slow but steady stream of Bacardi rum and Cokes, interspersed with glasses of Budweiser, appear and disappear in front of him on the bar at Gatsby's in West Palm Beach. The small Tuesday-evening crowd consists mainly of middle-aged men dressed like lawyers, and Heilman is not out of place. French cuffs peek out from his double-breasted blazer. The top two buttons of his white dress shirt are open, revealing a gold chain. Giant pinky rings dominate each hand as his elbows rest on the dark wood bar.
"The guy who drinks and drives doesn't have a lobby," Heilman laments. It's a statement few would argue with -- or construe as problematic, either. "Without a lobby," he adds, "MADD passes anything it wants."
Heilman is the closest thing to a lobbyist there is for the guy or gal at the bar who ties on one too many and gets behind the wheel. The 59-year-old Palm Beach County resident (he asks that the city in which he lives not be revealed for fear of police harassment) is an unabashed defender of those who mix alcohol with automobiles. Three years ago he started a company to help DUI offenders beat the rap, and in July he filed a petition with the Florida Supreme Court protesting the way that drunk-driving cases are handled by the state.
"I drink all the time," Heilman concedes. "I'm always over .08," the legal driving limit for blood alcohol concentration (BAC).
Ever since Mothers Against Drunk Driving was founded in 1980, limits on how much liquor a person is allowed to consume before operating a vehicle have been steadily tumbling. In 1993 Florida dropped the legal limit of booze in the bloodstream from .10 to .08. President Clinton has pushed for the same standard to be adopted nationwide, despite very little evidence that the proposed limit makes for safer roads. Heilman knows that defending drinking and driving is on a moral par with forgiving child molesters, but his is a crusade for social drinkers, those who have a few drinks at a bar or a party and are able, as he sees it, to drive home safely. "It's all bullshit," he says of the debate over what he considers arbitrary blood-alcohol limits.
In July, Heilman, who makes his living as a paralegal, filed a petition of "quo warranto" with the Florida Supreme Court, questioning the way DUI cases are handled by the state's Department of Highway Safety and Motor Vehicles (DHSMV). Heilman charges that the agency's employees are engaged in the unauthorized practice of law. If the Supreme Court decides that his petition has merit, it could throw into jeopardy all DUI citations. In 1998, 55,705 people were cited for DUI. Of those, 42,088 were eventually convicted.
According to a law passed in 1990 by the state legislature, when someone is arrested for driving under the influence, the state may rescind the alleged offender's license even before he or she goes to trial. The ruling takes place at an "administrative hearing," which is overseen by an employee of the DHSMV rather than a judge. The hearing almost always results in a first-time DUI offender's license being revoked for six months. Heilman argues in his petition that, because these hearing officers have the power to seize property (your license) and inflict punishment, they are effectively operating as judges -- even though they're not even lawyers. He is trying to convince defense attorneys to join him in the fight by filing separate motions with the Supreme Court based on similar arguments.
Despite Heilman's confidence in his prospects, the petition faces an uphill battle. Heilman first presented his argument in a 1997 complaint to the Florida Bar, which summarily rejected his assertion that the hearing officers are practicing law illegally. The Bar cited a state statute that allows for administrative DUI procedures and a state Supreme Court decision that the Bar believes permits hearings to be conducted by civilians. (Heilman is no stranger to the Florida Bar: Three complaints have been filed against him in the last four years charging him with unlicensed practice of law, mainly with regard to his paralegal work.)
Richard Springer, a Lake Worth defense attorney who specializes in DUI cases, believes Heilman doesn't have much of a chance. He notes that similar administrative hearings have been upheld as constitutional by courts in other states. "I think, practically speaking, [Heilman] is correct," Springer says, "but I don't have any confidence that the courts will take any action on that issue." Most judges, he adds, have determined that driving is a privilege instead of a right, and is therefore not necessarily protected by the Constitution.
Heilman estimates he's spent more than 300 hours working on the issue. Originally he got into the DUI debate because he thought it could make him some money, but lately the fight has become personal. In the early morning hours of June 22, 1997, en route from a Jupiter bar to his then-home in North Palm Beach, Heilman was pulled over by a Juno Beach police officer. According to the officer's report, Heilman almost hit a median with his car and failed to stay in a single lane. After the officer pulled Heilman over, he found that Heilman's speech was slurred and that he had a strong odor of alcohol on his breath. Heilman also failed roadside sobriety tests, such as walking a straight line and turning -- although he did execute a tap dance for the officer. He later submitted to a Breathalyzer test, which gave a BAC of .11.
As soon as he was arrested, Heilman flashed a card labeled "Independent DUI Testing, Inc." and demanded that the officer allow him to call the company so that it could administer an independent blood-alcohol test. The company, as it turns out, is Heilman's. He founded the business in 1996 to take advantage of what he sees as a loophole in DUI enforcement. That same year the state Supreme Court had ruled that police must offer "reasonable assistance" to anyone seeking an independent blood test after he or she has failed a Breathalyzer test.
Those who sign on with Heilman's company pay an annual fee (ranging from $250 for a DUI first-timer to $800 for a multiple offender) in order to have blood and urine tests at their beck and call. All a member has to do is phone the company after an arrest, and a representative will show up at the police station and administer the tests, which, theoretically, could determine that a driver's BAC is below the legal limit. But Heilman's business is actually based on the theory, as outlined in the company brochure, that cops won't allow such tests to be administered in a timely manner, and therefore the Breathalyzer test will also have to be tossed out as evidence. "You will not be convicted for DUI nor lose your driver's license once you're a member," the brochure boldly states. Heilman maintains that the program is only for people who drink socially, and the service is not available for those who've been in an accident. "Nobody's ever heard of preparing for a DUI before you get arrested," Heilman says proudly.
But members have been slow to sign up, mainly because Heilman's theory has yet to be proven in the courts. John Adamson, an insurance agent in Palm Beach Gardens, is one of 20 dues-paying supporters. "It's kind of like having a motor club when your car breaks down, like AAA," he says. "I'm not a drinker and driver, but there's that one rare chance that you might have two beers, and that's all it takes."
As it turns out, Heilman's own case is the judicial guinea pig for Independent DUI Testing. In April, Judge Sheree Davis Cunningham, of Palm Beach County, denied Heilman's motion that his Breathalyzer test be suppressed. She ruled that, even though police did not provide him with the means to get an independent test until almost four hours after he was arrested, the officers had fulfilled their duties. Although Heilman claims he wasn't driving under the influence, after Cunningham's ruling he pleaded guilty and was sentenced to 12 months probation and 50 hours community service. The judge's decision, however, is being appealed. "If the courts just did what they're supposed to do, I'd be amazed," Heilman says. "I'd fall down."
As happy hour continues at Gatsby's, Heilman is working on another rum and Coke. He downs a small sausage pizza between drinks and is not visibly drunk, but he's undoubtedly over the legal limit for driving. Then again, so is just about every other person at the bar. The .08 restriction, as Heilman sees it, is unreasonable, so he chooses to flout it. His car, meanwhile, waits in the parking lot.
Despite the setbacks for Independent DUI Testing, Heilman is confident the company will make him a rich man. He's currently looking into the possibility of expanding the service to other states. But he's obviously impatient. "I just can't believe that in the last three years," he says, "I haven't become a millionaire."
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