DUIQuestions on DUI Suspensions
Judge says common practice in hearing cases creates a conflict of interest.
By CURT ANDERSON, The Associated Press
Published Monday, February 27, 2006
FORT LAUDERDALE - Marcie Wyrobeck graduated from the Philadelphia College of Art and worked in sales and for 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 driver 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 that if you had any kind of legal question you would call the attorneys," 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 like Wyrobeck to consult on legal issues with the department's own lawyers 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 a broader 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. You'll find due process is being stretched to the minimum when DUI is involved," Fiandach said.
Florida's system of DUI license suspension appeals was challenged by Sam Fields, who frequently represents those accused in such cases. There are about 7,000 DUIs each year in Broward County and some 65,000 around the state.
Florida law allows immediate suspension of driver licenses when breath tests show an alcohol level of 0.08 or more or when the suspect refuses a breath, blood or urine test. The suspension must be appealed within 10 days, during which the driver is given a temporary permit. More than 22,000 appeal hearings were conducted in 2005.
A former department lawyer, Rhonda Goodman, testified in court that hearing officers would often contact her "and beg me to give them a ruling. They would say, `come on, can't you help me out here?' " Goodman said she was fired in November 2003 because she wouldn't go along with a system geared to sustain the suspension.
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.
Source: http://www.theledger.com/
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