An' Jushtiss f'r All!

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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."

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Eric Alan Barton
Contact: Eric Alan Barton