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More DUI cases jeopardized after security breach at Hernando County jail

BROOKSVILLE — This started with a simple, one-page e-mail.

It was just a resignation letter at the time. Four months later, it's become much more.

In fact, legal experts say, the words in that message — and what they represent — may have an impact on dozens of DUI cases in Hernando County and result in widespread acquittals.

At 2:36 a.m. on May 19, a Hernando County Detention Center breath-test operator named Fran Greifenberger resigned. She quit, the e-mail explains, because deputies at the jail had breached security and entered her office on numerous occasions. In a recorded deposition weeks later, Greifenberger would also allege that for months the detention staff had entered her office without authorization, moved items, tampered with instruments and opened and viewed evidence.

That would violate the Florida Administrative Code, which states that evidentiary breath test instruments must be accessible only to people issued permits by the state. The rule serves to protect the chain of evidence.

"I could no longer sign a breath-test affidavit in good conscience that everything was true and accurate," Greifenberger said in her deposition, "because I don't know who was touching the instruments."

Soon after Greifenberger's resignation, Hernando sheriff's Col. Mike Maurer ordered an internal affairs investigation. Although it found that the room's security had been breached, two independent inspectors determined the machines had not been tampered with and that jail personnel had not violated any "gross or obvious rules."

Sheriff's officials maintain that many of Greifenberger's accusations are either exaggerated or simply untrue. But e-mails obtained by the Times indicate that the breathalyzer room's security remained lax even in the days after she quit.

In June, Deputy Chris Boehmer, a permitted breath-test operator at the jail, e-mailed Maurer about an incident in which a corporal had used a key on his belt to enter the room and place a sign on the inside window without the deputy's permission or knowledge, which was once again a violation of the administrative code.

"I feel that among the alleged incidents that this one would also need to (be) brought up. I apologize for waiting so long to bring this incident to your attention," Boehmer wrote. "I really didn't know who I could tell that would take it seriously."

More than once, the deputy expressed concern over whom he should alert to the breach.

"I really don't know who to tell or trust. I have heard many rumors floating around. I have even heard of threats going around because of Ms. Greifenberger's incident," he wrote. "I can tell you that I personally have not been threatened or treated poorly since I have taken over the breath tests."

In another instance, a sergeant inadvertently left the room unlocked for 24 hours. Dozens of deputies and inmates pass by the door every day.

Investigators looked into both incidents, Maurer said, and neither the machines nor evidence were touched. The colonel said he believed Boehmer's talk of threats and potential mistrust referred to Greifenberger's allegations, not to anyone else working at the jail.

Since that time, Maurer noted, jail staffers have improved the room's security. They have installed an electronic key lock and placed a sign clearly stating that only those with authorization may enter the room.

Still, legal experts say, those continued security violations bolster Greifenberger's assertions, which may ultimately cripple many of the DUI cases the State Attorney's Office is prosecuting.

Defense attorneys have already begun to file motions asking that judges suppress breath-test evidence.

Retired Judge O.H. Eaton Jr., who served 24 years on the bench, primarily in the Orlando area, said because the inspectors determined the machines weren't corrupted, he believes those motions will likely be denied.

"You've got suspicion at this point and you might even have a violation of administrative code," he said, "but that doesn't mean the evidence wouldn't be admissible."

Greifenberger's allegations, however, could become much more important at trial.

"I think that's extremely significant," said Ian J. Goldstein, a West Palm Beach attorney considered a criminal law expert by the Florida Bar. "Depending on the facts of the case, I think it could be very difficult for the state to obtain convictions, especially on cases that rely on the breath tests."

Prosecutors can argue several different ways that a person drove under the influence of alcohol. For instance, if the defendant failed multiple field sobriety tests or was obviously impaired, the breath-test results would be far less critical to the state's case.

However, many cases aren't that clear. Juries are instructed to consider drivers impaired if their breath-alcohol level is .08 or above. Often, drivers who blow over the limit offer no visual cues that they're intoxicated, making the breath-test results the only evidence that supports a conviction.

That's where Greifenberger's concerns may become critical. To acquit, Goldstein noted, a jury only needs to have reasonable doubt of the defendant's guilt.

"I have lots of cases that would be a slam dunk," Goldstein said, "if they didn't have the breath test."

Joseph C. Bodiford, also considered a criminal law expert, is a Tampa attorney and adjunct professor at Stetson Law School. He agreed with Goldstein.

"I'd be salivating," Bodiford said of the opportunity to try a case with Greifenberger's testimony. "I'd call every reporter I know and say, 'Come to the courtroom if you want to see something fun.' "

Regardless of how influential her statements become, potentially hundreds of people who could have benefited from the testimony likely won't — those who have already pleaded guilty or no contest to their charges.

"When you enter a guilty plea to a case, you waive almost everything that happened beforehand," Eaton said. "Ninety-nine percent of the time when you enter a guilty plea or a no-contest plea, that's the end of it."

Although the State Attorney's Office became aware of the operator's accusations soon after her May resignation, officials didn't inform defense lawyers of the evidence until August.

Assistant State Attorney Donald "Sonny" McCathran said last week he waited to release the information so the Sheriff's Office could finish its internal affairs report and determine whether the machines had been corrupted. Because the inspectors concluded that the machines weren't tampered with, he's confident prosecutors will still be able to win their cases.

Peyton Hyslop, a Brooksville lawyer and former county judge, said the lapse in time was still unacceptable. He insisted that prosecutors should have alerted defendants immediately because it would have caused many of them not to enter their pleas.

"I think those people may have a motion to reopen their cases," Hyslop said, "because when the state first learned of this, it delayed notifying the defendants."

Times researcher Carolyn Edds contributed to this report. John Woodrow Cox can be reached at (352) 848-1432 or jcox@sptimes.com.

More DUI cases jeopardized after security breach at Hernando County jail 09/03/11 [Last modified: Saturday, September 3, 2011 1:59pm]
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