Florida Criminal Defense and DUI Defense Blog

15Nov, 21

du manslaughter resultsRecently, I tried a major case in Indian River County.

My client was charged with two counts of DUI Manslaughter. He had been involved in a car accident where two people died.

I want to give you my take on that case. The case has engendered quite a bit of controversy locally, as my client was found not guilty of both counts of DUI Manslaughter.

I want to take a little bit of time and lay out, first the prosecutor’s case, and then what we did about it, and how the trial progressed.

At ten o’clock one night, three years ago, there was a crash on 512 in Sebastian. 512 is a four-lane, divided highway with two lanes going east, two going west and a grass median in between. And periodically, there are places for people to make either left or U-turns.

At about ten o’clock one evening, my client was eastbound on State Road 512 in Sebastian, driving his Cadillac SUV on his way home. He needed to make a U-turn because he lived to the north of the road, and he pulled safely into the U-turn lane.

Approaching from the east were three motorcycles with a total of five passengers. The motorcycle in the lead was a three-wheeler.

As the three-wheeler reached the intersection, the Cadillac SUV and the three-wheeler collided, ejecting the two motorcycle riders, who both died.

Here’s the State’s case.

Parked right across from this intersection in the entryway into Sebastian Elementary School was a police officer who was that night’s shift supervisor. The shift supervisor told the Traffic Homicide Investigator that night, “I saw the whole thing.”

He said, “I was parked here. I had a three hundred and sixty degree view. I saw the SUV. I saw the motorcycles coming. I’m radar-certified and I estimate the speed of the motorcycles at thirty-five miles an hour.”

Armed with that information, the Traffic Homicide Investigator interviewed the two other motorcycle riders and a third person who was a passenger on one of the motorcycles. They all pretty much confirmed that police officer’s description of the accident.

The Traffic Homicide Investigator talked to my client, the driver of the SUV, and said he had an odor of alcohol from his mouth and, even though he’d been in a crash and been hit in the face with the airbag, the T.H.I. thought it was noteworthy that his eyes were red and watery.

The T.H.I. said he observed “an unusual gait”, I believed he described it, which basically means there was something unusual about the manner in which the man was walking.

EMT.’s arrived and the Traffic Homicide Investigator asked my client if he would voluntarily submit to a blood test. Since my client was cooperating with everything they asked him to do, he voluntarily gave a blood test.

The blood was taken by an EMT, handed to the T.H.I. The Traffic Homicide Investigator said that within an hour, he had it in the Sebastian Police Department’s overnight refrigerator.

Eventually, it was sent to the crime lab operated by the Florida Department of Law Enforcement in Orlando, where it was subjected to gas chromatography testing. And the lab tech told us that the blood indicated a blood alcohol level of .29, which is about a little more than three-and-a-half times the legal limit.

So, the Cadillac driver found himself charged, a couple of months after the accident, with two counts of DUI Manslaughter.

The Traffic Homicide Investigator did what he called an accident reconstruction, offering the opinion that the motorcycles were traveling at thirty-five miles an hour, and that the Cadillac driver was primarily, and maybe solely, responsible for this accident.

Of course, the autopsy showed that the two people died as a direct result of the injuries suffered in the accident. As a matter of fact,the driver of the trike died virtually instantly, and his passenger died within a matter of minutes.

I was asked by the Cadillac driver’s first lawyer to join the defense team mostly to deal with the blood alcohol issues. Forensic science is of particular interest to me, and I have studied gas chromatography at Axiom Labs in Chicago, and I think I have a pretty good handle on what a criminal defense lawyer needs to know about it.

So, we went to work.

We got our own accident reconstruction expert. We went out and got, instead of just an ex-cop, we got an engineer. Our engineer went to the scene. He used a drone to videotape the scene from all angles. He looked at the vehicles. He looked at the event data recorder from the SUV.

Among the things he determined was that the SUV at the time of the accident was traveling all of nine miles an hour. The trike, instead of doing thirty-five miles an hour, was actually doing at least seventy miles an hour in what was a thirty-five mile an hour zone.

He also did some research on motorcycles, speed and visibility and studied the literature, and included in his report that one hundred percent of drivers at that intersection would have made the left turn or U-turn because one hundred percent of them would have believed that the gap was large enough to safely make that turn without interfering with the motorcycles.

We presented that information to the prosecutor. The prosecutor went out and hired a second accident reconstruction expert, a former Traffic Homicide Investigator who has been in private business for fifteen years, teaches at a police academy. But he was not either an engineer or a social scientist.

He examined many of the same things that our expert examined, and he agreed that the motorcycle involved in the crash was traveling at least seventy miles an hour at the point of impact. He further explained that the driver and passenger of that trike were ejected at speeds greater than the posted speed limit of thirty-five miles per hour.

He blamed the accident on the Cadillac driver, anyway.

So, that was one of the big disputes going into trial.

We also learned through pre-trial depositions that the shift supervisor, who told the T.H.I. that he had seen the whole thing and was radar certified and estimated the motorcycles at thirty-five miles an hour, he told one of the bikers, one of the friends of the trike driver, that he was looking down at his computer , didn’t see a thing, heard the noise of the crash and that’s when he looked up.

On the way to trial, we also went back to the Italian American Club, where the Cadillac driver had spent part of the evening, as a matter of fact five hours. And we located a person who arrived there at the same time as the Cadillac driver. The two of them were friends and were there to attend a committee meeting. The committee meeting was in the back room.

 

On the way into the meeting, they each grabbed one drink. The meeting lasted about an hour. When they came out, the friend had finished his drink, the Cadillac driver was finishing up his. They went to the end of the bar and they each for a second drink.

At about seven o’clock, two hours after their arrival, the Cadillac driver was still on his second drink. The friend had to leave because he had another engagement and he knew he was late because the wife of the friend he was going to see arrived at the Italian American Club.

She, too, knew the Caddie driver, and she and a third person sat down with him for a second meeting. The first meeting was the bylaws committee; this second meeting had to do with the volunteers. Everybody who works at the Italian American Club is a volunteer. And they were in the process of establishing more strict procedures, guidelines, for how people were to dress, what their hours were, what they could and could not do.

Toward the end of that meeting, a husband and wife arrived who were very good friends with the Cadillac SUV driver. At the finish of his second meeting, he went and sat down with them. During the course of their visit, the husband bought himself and the SUV driver another drink.

All five of these people – the friend that arrived at the same time as the SUV driver, the two women he met with after his first meeting, and the husband and wife that he sat down with – all testified at trial. So did the bartender who served him, and all six of them testified that he did not have slurred speech, he did not have any changes in demeanor or behavior. He gave no impression to any one of them that he was the least bit impaired.

He left at the same time that the husband and wife left. The accident happened within two or three minutes.

There were no settlement negotiations at any time during this trial. Neither side initiated them, Neither side made any kind of settlement offer.

The prosecutor in this case was an experienced, talented and completely ethical attorney. She did a good job organizing her case and she presented what she had.

So, the case went to trial, starting with jury selection on Monday. Although the entire jury was not residents of Sebastian, they all were residents of Indian River County. They were not just people who lived in Vero Beach. The case was tried at the Indian River courthouse in Vero beach, but some people have expressed confusion as to how a jury is selected. The jury pool from which the ultimate jurors were selected was drawn from the entire county.

Everyone who sat on the jury was familiar with State Road 512 and had driven on it.

The prosecutor called the officer on the scene as a witness. She called the three bikers. She called her initial Traffic Homicide Investigator.

Among the things that the jury got to hear from these witnesses was that all of them were traveling at about the same speed, that the husband and wife on one motorcycle and the friend on another motorcycle had spent the evening together at the VFW. They both left on their motorcycles. The trike driver had spent some of his evening at the American Legion. He left after them, but he passed them.

And he was in the lead, which is why he was in the accident.

They also heard from one of those bikers that, not only did he pass them, but that biker had talked to that first officer on the scene. So, the jury got to hear that that night of the crash, that lead officer had told that biker, “I didn’t see anything. I was looking down at my computer. I heard the sounds of the crash and that’s when I looked up.”

So, of course, his testimony was called into question. His opinion of the speed of the bikes was called into question. And the opinion of the first traffic reconstruction expert was called into question because he relied on that in giving his opinion.

The jury also got to hear that the Traffic Homicide Investigator who was in charge of the investigation that night was the one who made the decision not to arrest the Cadillac driver. In fact, he also made the decision not to conduct a DUI investigation or have any of the other many officers on the scene conduct one.

It was his decision that nobody would administer field sobriety exercises, which are routine in a DUI case.

He’s the one who determined that nobody would interview the Caddie driver on video.

He was the one who also determined that no one would ask the Cadillac SUV driver if he would go to the police station or the sheriff’s office and voluntarily submit to a breath test, just as he had voluntarily submitted to a blood test.

We argued to the jury that, if they had done that, the jury would have had evidence of innocence, because he wouldn’t have looked impaired or sounded impaired, and his breath alcohol level would have been below the legal limit.

This is why I’m telling you, and we told the jury, this is why the burden of proof is always on the State, because an accused person doesn’t have the understanding or the ability to gather evidence of innocence.

The Cadillac driver was never told he was under arrest because he wasn’t under arrest. And he had no reason to be requesting field sobriety exercises, requesting a videotaped interview or requesting a breath test.

There was no opportunity for him to gather evidence of innocence that night, and the lead officer made sure that that was not collected.

 

Of course, that was all presented to the jury during the trial.

The State called the medical examiner, who testified to the cause of death. And she also testified that the medical examiner conducting the autopsy had sent blood samples from the two deceased to a medical lab, the same kind of medical lab that might test any blood sample that your doctor asks you to submit.

The medical lab determined that the driver of the trike had a blood alcohol level of slightly above .20, or two-and-a-half times the legal limit, at the time of the crash.

The prosecutor presented the blood testing forensic chemist, who, for reasons that nobody really knows, no longer works for FDLE. He testified, among other things, that the blood sample arrived on the nineteenth of the month to his lab. The accident happened on the thirteenth.The blood sample was collected at 1am on the fourteenth. It was put in the fridge at the Sebatian police department by 2am on the fourteenth.

The Sebastian evidence custodian testified that either that day or the next day, she sent the sample to Orlando (to the FDLE) by FedEx. No explanation was given why it took four or five days for that blood sample to reach FDLE. And no one testified that FedEx provides any kind of refrigeration when they’re transporting anything.

So, it was an open question whether five days unrefrigerated could have affected the validity of that blood test.

We also called into question the lab tech’s appreciation and commitment to procedures. During cross-examination, he started by agreeing with me that every step in a protocol is important – iImportant to the validity of any scientific testing – that every step in the protocol is there for a specific reason.

 

Moments later, during that same cross-examination, he tried to say that a particular step that we asked him about didn’t really matter. And we let that hang out there for a minute. Every step is important to the validity of any scientific test results. Every step is there for a particular reason. Except that this particular step wasn’t.

That really allowed us to call into question whether or not he followed any of the other steps in the protocol to the letter.

Most importantly, a lab tech doing his job needs to load the machine, the gas chromatograph, one test tube at a time, one vial at a time, making sure that the barcode on the tube matches the barcode on the slot in the carousel, which they call the auto-loader.

You see, if you’re loading that, and you’re in a hurry, and you decide to load two at a time, it only takes a very slight twist of the wrist to put both of those samples in each other’s slots. The machine doesn’t know any better. But if a lab tech did that, then even though the machine would correctly report the blood alcohol level in that sample, the reports would mis-identify the donor of that sample all the way around.

I pointed out to the jury, in summing up the evidence in my closing argument, that the State didn’t offer any proof that that sample was even the right man’s blood, which they could have done if they corroborated that with DNA testing.

Along the lines of corroboration, this lab tech claimed that a second lab tech watched him do it to make sure he did it right, to make sure he did it one tube at a time, one sample at a time. And that that second person would have filled out a form contemporaneously with the testing, and that form would have been electronically uploaded and would be available.

That corroborating lab tech was never identified, did not testify and nobody’s ever seen a report, electronic or in print, that corroborates that claim. That was significant. We pointed that out to the jury, because the EMT who drew blood, did in fact have a second EMT watching and verifying that they followed the protocol. He was there for that particular purpose.

 

Finally, the prosecutor called their second Traffic Homicide Investigator, who was serving as an accident reconstructionist. Again, this man was not an engineer, was not a social scientist. His testimony and his opinion were limited by the judge to testifying about speed and distances and who was where and how fast were they each going at the time of the accident.

He was not permitted to offer his opinion that the Cadillac SUV driver was impaired, because that was beyond education, training and experience.

He was also not allowed to vouch for the work of the FDLE lab tech, because again, he wasn’t trained in gas chromatography, he didn’t observe it, he didn’t interview that person. All he saw was the one-page report.

His neutrality was also called into question. It was revealed that he only testifies for the prosecution in criminal cases. He does not testify for the defense. He claims that if a defendant or a defense attorney contacted him, he would give them advice and refer them to somebody else, but he wouldn’t do it himself. And his reason for that was philosophical. He didn’t ever want to be called in to question the work that a police officer, that he may have trained, had done.

Even if that police officer he had trained was wrong.

There was also a driver who was behind and to the right of the Cadillac driver as he came eastbound on 512. And that driver saw the accident happen.

He testified that, prior to moving into the turn lane, the SUV was not speeding. The SUV was not weaving. The SUV didn’t cross the dotted line separating the two lanes. The SUV didn’t cross the fog line to the left of his own lane. And the driver saw nothing that suggested to him that the Cadillac SUV driver was impaired.

Those facts all came out during my cross-examination of that witness.

Then it was time for the defense case.

We presented, one by one, each of the five people who had spent time with the Cadillac driver at the Italian American Club.

After we presented our five witnesses that had been at the Italian American Club, we then presented our accident reconstruction expert, our engineer. Our engineer’s testimony was straight and to the point, which was quite a contrast from the very argumentative and somewhat sarcastic testimony given by the State’s expert.

 

Our accident reconstructionist clearly explained to the jury the speed of the trike at the time of the accident, the difficulty in, not only seeing a motorcycle approaching at night, but also the difficulty in assessing the speed of an oncoming motorcycle.

Based on social science research that he had conducted, our expert explained to the jury that, given the information and observations that any driver in that position would have been able to make, that one hundred percent of drivers would have made that left hand turn or U-turn at that time.

The expert also offered the opinion that the trike driver should have been able to avoid the accident, even at seventy miles an hour.

He could have been able to avoid the accident, even at seventy miles an hour.

The expert further testified that, had he been going thirty-five miles an hour, which was the posted speed limit, first of all he would have been further down the road and had much more of an opportunity to slow down or stop even to avoid the accident. As the other motorcycle riders behind him were able to do.

He also explained to the jury that these people would have been ejected from their motorcycle at a much slower velocity if all the facts were the same and he’d only been going thirty-five at the point of impact.

Which means if he had not been going seventy miles an hour, those two people would not have died.

When it was time to give closing arguments, I explained to the jury that the trike driver was going seventy miles an hour. In a thirty-five mile an hour zone. On a motorcycle. At night. With a passenger. And with a blood alcohol level of above .20.

I was pleased and my client was gratified, but I was not surprised, when the jury brought back a verdict of not guilty on both counts of DUI Manslaughter.

That’s how this happened. That’s how the case was presented. And that’s the outcome.

If you have any questions about that, you’re welcome to reach out to me. You can get me at my office at 772-466-4900. You can email me at mike@kesslerlawfirm.com.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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