Elizabeth L. Parker, Esq.
SETBACK FOR STATE IN DUI CASES The Palm Beach Post by Susan Spencer-Wendel
Prosecutors threw in the towel in 1,100 drunken-driving cases Friday, agreeing that breath-test results in those cases should be suppressed. It's a sweeping decision that hobbles prosecutors' ability to get convictions in the cases and springs untold numbers of drunken drivers from punishment. "Unbelievable," said state Rep. Irv Slosberg, D-Boca Raton. Assistant State Attorney Elizabeth Parker made the decision because of a procedural problem within the Palm Beach County Sheriff's Office breath-testing facility. Technicians who maintained the breath-test machines were unable to testify in court who did what to which machine. Defense attorneys seized on it, calling it "ring-around-the- rosy" maintenance. The machines were working fine, but no technician could explain what he or she had done to maintain them. "No matter which (technician) you put on the stand, the answer was, 'I don't know. I don't know. I don't know,' " said Ira Karmelin, a former DUI prosecutor now working as a defense attorney. Defense attorneys argued that it denied a person the basic right to confront his or her accuser. Earlier this week, one judge agreed and suppressed the breath test of a Delray Beach woman who blew three times the legal threshold when stopped by a deputy after an office party. Parker wrote a memo to Sheriff Ric Bradshaw and State Attorney Barry Krischer, explaining that they would not win the case on appeal. She conceded and suppressed results in the 1,100 DUI breath cases tested at the Palm Beach County Sheriff's Office from July 2004 through April 2005. The agency switched the procedure in July 2004. Some major police agencies, like West Palm Beach and Boca Raton, do their own breath testing. But the majority of breath-test cases in the county are performed on the eight Palm Beach County Sheriff's Office machines. Prosecutors did not drop DUI charges in the 1,100 cases, though. They will consider them individually, pressing on with ones they can prove with other evidence, like roadside videos or a driver's interview.
Elizabeth L. Parker, Esq. For example, the woman who blew three times the legal limit also performed a series of videotaped tasks and talked with arresting officers. Diana Iwanow couldn't stand on one leg or touch her finger to her nose. She also told officers that she had four or five glasses of wine at an office party. When asked if she was drunk, she replied "of course," according to court records. Parker said she's "definitely proceeding" on that case. Defense attorney Fred Susaneck won the suppression for Iwanow and led the attack on the sheriff's office procedure. Susaneck says he now has the upper hand for all 30 of his DUI clients. Meting out DUI cases with prosecutors when there was a breath-test reading was like a game of blackjack before. Parker wrote in the memo that the sheriff's office facility was not following Florida Department of Law Enforcement procedure with the technicians. The head of FDLE's alcohol program, Laura Barfield, said Friday she had not concluded that yet. Barfield said, though, she may travel here from Tallahassee soon to find out. The breath-testing facility at the sheriff's office has had problems for years with qualified breath-machine technicians or lack of them. For years, there was only one approved technician to come to court. She was so swamped she couldn't possibly show up for all hearings, causing hundreds of drunken drivers to get their licenses back. The solution was to train more technicians and have them work on all machines - the plan that backfired so badly Friday. "The problem has been corrected now," said Maj. Bob Ferrell, with the sheriff's office. Bradshaw inherited the problem from former Sheriff Ed Bieluch. Bradshaw will investigate how the decisions were made and take disciplinary action, if necessary, he said. Delray Beach police officer Vinnie Gray makes about 100 DUI arrests a year. Gray has publicly criticized the testing facility when he sees his cases coming apart in court because of mistakes made there. Cases can still be won by officers who videotape roadside sobriety tests. But the breathtest result was the paramount piece of evidence, he said.