Longform

An' Jushtiss f'r All!

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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.

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Eric Alan Barton
Contact: Eric Alan Barton