Sunday, March 16, 2003
Jailed for DUI, judges' calls got them out
Waiving medical, background checks hastened release of nine
arrestees
By Rich Tucker The nine included the former dean of Florida Coastal School of Law, a
Jacksonville police officer and a prominent local Republican fund-raiser. And
most members of the group were known personally or professionally by the judges
who sped up their releases through late-night conversations with jail officers.
Florida law requires people detained for drunken driving be held for at least
eight hours after their arrest unless their blood alcohol level drops below .05
percent or unless they are "no longer under the influence of alcoholic
beverages." Florida law says a person is driving drunk if their blood
alcohol level is .08 percent or above.
But court records show the nine were released from jail in less than eight
hours, and jail officials kept no records to indicate the nine were no longer
intoxicated when they were released.
In response, Sheriff Nat Glover said last week that the jail will no longer
release drunken driving arrestees until after eight hours, even if a judge
orders the checks skipped. Glover said his department also would tighten
procedures for tracking when judges waive background checks and for determining
whether someone is no longer intoxicated before his or her release.
"We need to be more definitive in this policy and not rely so much on a
judgment call," Glover said, though he noted that judges still have the
authority to order, in writing, someone's immediate release.
Judges may legally waive background and medical checks. But every judge
interviewed said he never explicitly approved the individual's release before
the eight-hour limit when he ordered jail officers to skip the checks. The
judges said they rarely waive background checks and do not view those waivers as
showing favoritism.
"It is a judge's job to make value judgments," said Chief Judge
Donald Moran, who ordered checks skipped in one of the nine cases.
No records kept
Jail officers currently do not perform additional Breathalyzer tests or
formal field sobriety exercises before releasing people arrested for drunken
driving, according to Assistant Chief Stephanie Sloan-Butler. Police said such
tests would be prohibitively time-consuming and expensive.
Sloan-Butler said officers in all nine instances made sure those released
were no longer intoxicated by observing them and asking questions about their
arrest and personal background "like their Social Security number."
But she said there is no written documentation of that questioning, and she
said jail officers receive no formal training to help them make those
determinations.
The jail's process for tracking when judges waive background checks also is
somewhat informal. In at least one instance in 2002, background and medical
checks were waived but the jail has been unable to determine by which judge.
"It concerns me that no one knows who the judge was," Glover said.
"We should be getting initials and everything in a case like that."
Linda Cason, the Florida state chairwoman for Mothers Against Drunk Driving,
said she was disturbed to learn that the nine were released so quickly.
"The problem is, if these individuals get out of jail and they're still
under the influence, they can get back behind the wheel and end up killing
somebody," she said. "Then it will come back to get the judges and the
police who let them go too quickly."
Waivers hasten release
In waiving background and medical checks, judges often made it possible for
those arrested to be released far more rapidly than others who underwent the
checks and went to first-appearance court at the jail.
Wyllie Hodges, chief of the Sheriff's Office Jails Division, said a judge's
instruction to skip background checks is a tacit order to accelerate an
individual's release. In many of those cases where checks were not waived,
defendants were not released for 15 hours or more.
The Times-Union located the nine instances after reviewing more than 3,200
cases from 2002 where individuals were released on their own recognizance from
the jail.
Those included, according to jail and court records:
Marty Fiorentino, a prominent Republican fund-raiser and Jacksonville lawyer,
who was released 4 1/2 hours after being arrested, following an order from Duval
County Judge Russell Healey that background checks be waived.
Former Florida Coastal School of Law Dean Joseph Richard Hurt, who was
released in six hours, 27 minutes after Moran ordered the jail to skip
background and medical checks.
Jacksonville Sheriff's Office Lt. Lamar Harold Terry, who was released in two
hours, 12 minutes after Duval County Judge Roberto Arias ordered his background
checks be skipped.
Fiorentino's attorney, Mitch Stone, said Fiorentino's case was not an example
of a judge showing favoritism but demonstrates the value of hiring an attorney.
"An unrepresented person will not get the same benefits as a represented
person," Stone said. "That's just a fact of a capitalist
society."
Hurt said he contacted a member of the Florida Coastal School of Law faculty
after his arrest but was not involved in contacting a judge to speed his
release.
"This is something that's never happened to me before. I don't know
normal processes," Hurt said. "Most of the ones who stay in jail do
not have an attorney. I have a member of my faculty -- everyone on my faculty is
an attorney."
Terry refused to comment about his arrest.
In all three cases, DUI charges against the men later were reduced to
reckless driving, to which each pleaded no contest.
Assistant State Attorney Sheila Loizos said the decisions to reduce the
charges took into account weak evidence, the backgrounds of the three men and
the fact that they had no prior drunken driving arrests.
Loizos said even Breathalyzer results, usually one of the more objective
forms of evidence in drunken driving cases, often can be contested in court.
Defense experts can testify that a defendant's blood alcohol level was lower
when he was driving than when tested because his body still was absorbing
alcohol he had consumed.
In Terry's case, he was tested almost four hours after authorities believe he
was driving, further reducing the value of the test results in court.
Judgment calls
Moran said the law restricting when someone can be released after a drunken
driving arrest exists to prevent a still-intoxicated driver from getting back
behind the wheel.
He said if the jail can make certain those arrested will not endanger
themselves or others, there is no reason not to release them as soon as
possible. He said it is appropriate for judges to authorize the jail to skip
background checks if they know defendants have no other active arrest warrants
and are likely to return to court.
Healey said he ordered the checks be skipped in Fiorentino's case to save
jail officers' time. "I felt confident that there was not a warrant for his
arrest," Healey said.
Arias said he did not remember Terry's case, but he said jail officers have
asked him whether they could waive the eight-hour rule in other instances. He
said he always refuses because his authority as a judge does not override the
law.
"I always say, 'No, that's not for me to say,'" Arias said.
"If people are being released before the eight hours, that would be a
concern to me."
Early releases rare
The percentage of DUI cases in 2002 where judges ordered background checks be
skipped is small. Those checks were waived in only 29 out of 144 drunken driving
cases in which individuals were released on their own recognizance, according to
the Times-Union investigation. In nine of those 29, the individual was released
in less than eight hours.
Duval County Judge James Ruth said he was surprised to learn of the rapid
release of a Clay County Health Department worker for whom he waived background
checks last April. The worker was released two hours, 25 minutes after her
arrest at 7:45 p.m.
"That person should not have been released prior to that eight-hour
period of time," said Ruth, who said he would tell the jail to wait eight
hours in future cases. "After this issue has surfaced, I suspect that
everyone has been sensitized."
Circuit Judge Michael Weatherby, who waived background checks for a friend's
daughter and a student from a University of North Florida criminal justice class
he taught, said judges carefully review an arrest before ordering checks be
skipped. But he acknowledged that some individuals' early releases from jail
could be seen as unfair by others.
"It happens," Weatherby said. "It's just one of those
things."
Glover said requiring all drunken driving arrestees to remain in jail for at
least eight hours should address that fairness issue.
"We don't tend to treat people differently here," Glover said.
"We've got a new policy here that would be more neutral in effect to
everybody."
Circuit Judge Hugh Carithers, who ordered checks skipped for a Beaches man he
knows personally, argued that it is a judge's job to evaluate each case
individually. He said the Times-Union's review was "hogwash" and might
cause judges to "shy away from carrying out the law" if they believed
they would be criticized for authorizing earlier releases.
He would not comment on whether he believed he had shown favoritism by
ordering background checks skipped for a man he described as "a friend and
neighbor for 25 years."
"You are trying to bait me," Carithers said, "and I resent
it."
Staff writer Rich Tucker can be reached at (850) 224-7515, extension 11, or
via e-mail at rtuckerjacksonville.com.
Times-Union staff writer
Nine people arrested on drunken driving charges in 2002
were released unusually quickly from the Duval County jail after judges ordered
their medical and criminal background checks be skipped, a Times-Union review
has shown.
