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.