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State violates DUI defendants' rights, judge says

Marcie Wyrobeck graduated from the Philadelphia College of Art and worked in sales and at an arts and crafts store. She had no formal legal training.

Yet for nearly a decade, she was a state hearing officer who decided the appeals of people whose drivers' licenses were suspended in drunken driving cases.

When a difficult legal question came up in one of those hearings, Wyrobeck said, she and other Department of Highway Safety and Motor Vehicles hearing officers - some with only high school educations - routinely asked the agency's lawyers for advice about how to rule.

It was "pretty common practice," said Wyrobeck, who left the agency and her $27,000 salary in 2003.

Now a judge in Broward County has ruled that allowing hearing officers to consult on legal issues with the department's own attorneys violates the fundamental constitutional rights of defendants in drunken driving cases.

"How can the specter of actual conflict, much less the appearance of conflict, not raise its ugly head?" said Broward County Circuit Judge J. Leonard Fleet in his ruling late last year.

Wyrobeck, who now consults for DUI defense lawyers, said the conflict is obvious: "It's like being the judge and the prosecutor at the same time."

Although Fleet's decision is not binding statewide, the department has voluntarily ceased any communication between its 71 hearing officers and its legal staff pending the outcome of an appeal.

Department spokesman Frank Penela said its position is that Fleet's order "is procedurally and substantively defective."

The Broward County case could eventually have an impact across Florida and the nation, where similar systems are used by about 40 states, said Ed Fiandach, a Rochester, N.Y., lawyer and dean of the National College of DUI Defense.

"It's an extremely common practice," Fiandach said. "You'll find due process is being stretched to the minimum when DUI is involved."

Florida's system of appealing DUI license suspensions was challenged by Sam Fields, who frequently represents those accused in such cases. There are some 65,000 DUIs around the state each year.

"The agency has a mission, and the mission is to get drunks off the road," Fields said. "They also hire the judges. There's no way you can get around those conflicts."

Florida law allows immediate suspension of drivers' licenses when breath tests show a blood alcohol level of 0.08 or above or when the driver refuses a breath, blood or urine test. The suspension must be appealed within 10 days, during which the driver is given a temporary permit.

A former department attorney, Rhonda Goodman, said she was fired in 2003 because she wouldn't go along with a system geared to sustain the suspensions.

Florida officials say the hearing officers are given frequent training on DUI law and recent decisions by appellate courts. Danny Watford, chief of the Bureau of Administrative Reviews at the department, said about 21,000 appeals are heard each year and about 30 percent of license suspensions are invalidated by hearing officers.

Watford said there are no rules stating that a hearing officers must get approval from one of the agency's lawyers to lift a suspension. "No, that is their decision," he said in court testimony.

Goodman, the former agency lawyer, said the decisions to lift a suspension did have to get such approval and that it was commonly known that agency higher-ups looked with disfavor on anyone who didn't sustain most of the suspensions.

Watford acknowledged that statistics are kept on how many DUI suspensions are sustained by the hearing officers but denied there is a quota.

"If one hearing officer is sustaining 99 percent of their cases and the average is 30 percent invalidated, then you may want to . . . see if training is needed," he said.

People who lose their license suspension appeals do have one more legal avenue: They can ask a circuit court judge to review it. But the suspension runs during the course of that appeal.

Fields said defendants in drunken driving cases have few champions in society, leading to ever-tougher DUI laws and lowered standards of proof in many legal proceedings. But, he said, they are citizens with the same rights as anyone else.

"Most people would say, "They're a bunch of drunk drivers, screw them,' " Fields said. "That's exactly why we have constitutional rights - because the majority does want to go after people."

PENALTIES

Florida law allows immediate suspension of drivers' licenses when breath tests show a blood alcohol level of 0.08 or above or when the driver refuses a breath, blood or urine test. The suspension can be appealed to the Department of Highway Safety and Motor Vehicles within 10 days of arrest. The arresting officer issues a temporary 10-day driving permit to provide time for the appeal.

+ First suspension for driving with an unlawful alcohol level (0.08 or above): 6 months.

+ Second or subsequent suspensions for driving with an unlawful alcohol level (0.08 or above):

one year.

+ First suspension for refusal to submit to breath, urine or blood test: one year.

+ Second or subsequent suspensions for refusal: 18 months.

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