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Want to beat a DUI?



Early Sept. 1, a tan, four-door Nissan sedan caught the eye of Seminole County sheriff's deputy Edward Cortez. The Nissan, Cortez later wrote in his report, was moving at a "fast rate of speed" and weaving in and out of traffic on Red Bug Lake Road. The car's right blinker went on but the car moved into the left lane. Then the left blinker went on and the car moved into the right lane. The driver repeatedly tapped the brakes, the officer notes, though there was no other traffic around.

Cortez pulled the car over. The driver, Donna Ellenson, had bloodshot eyes and smelled of alcohol, the report states. Officer Cortez also found an open bottle of Bud Light and an open, half-empty bottle of JÅ germeister in the car. According to Cortez's report, Ellenson admitted having four beers that night. She had trouble standing up, her eyes were glazed, she couldn't touch her nose with her eyes closed, and she couldn't walk heel-toe in a straight line (and giggled when she tried). Ellenson refused a Breathalyzer test.

It was a routine DUI bust, one of eight in Seminole County that day, with one notable exception: Ellenson, a 23-year veteran of the Orlando Police Department and head of the OPD's community-relations unit, tried to use her badge to beat the charge. In his report, Cortez states Ellenson told him, "Come on, we are both law enforcement officers here. Why must I stand by my vehicle when all you have to do is let me park my car and call a cab for me?"

Cortez arrested Ellenson. She faces a yet-unscheduled trial on a misdemeanor DUI charge. Because she refused the breath test, the Department of Highway Safety and Motor Vehicles automatically suspended her license.

Nonetheless, Ellenson beat the system. Though misdemeanor DUI charges are pending, she fought to get her license back, arguing that Cortez didn't have probable cause to pull her over, and thus any evidence he collected was inadmissible. A Department of Highway Safety and Motor Vehicles official agreed and Ellenson is able to drive again.

Her victory may be temporary, because if she's convicted a trial judge could re-suspend her license. But the highway safety department uses a more lax probable-cause standard than the courts, and Ellenson successfully challenged that standard, so it's possible a judge will throw out her case as well.

Ellenson's case recalls that of Steve Thomas, the Ponce Inlet police chief arrested in the small Volusia County city of Port Orange in January for DUI. He got his charges thrown out after convincing a judge he was swerving not because he was drunk, but to avoid "roadway hazards." That, despite admitting to the arresting officer that, "If I blow, I'll be over .08," which is the state's legal blood-alcohol standard.

Thomas initially lost his administrative hearing to get his license back. But in July, he successfully appealed the decision by arguing that he shouldn't have been pulled over in the first place.

Crediting favoritism for these two officers' success at beating the system misses the point. Other cops busted for DUI haven't gotten away with it. Former Orange County deputy Matthew Langley, for instance, tendered his resignation last year after his second DUI arrest; and Orange County deputy Ricky Simmons is awaiting punishment after crashing his marked squad car while allegedly drunk in July.

But police certainly do have the inside track on where DUI arrests fall apart -- note the similar, and successful, tactics employed by both Ellenson and Thomas.

First -- and perhaps most importantly -- they knew which lawyer to hire. Ellenson got Stuart Hyman, a criminal attorney who specializes in DUI cases. (Hyman also worked with Daytona Beach attorney Flem Whited on Thomas' defense.)

Second, both refused to take a Breathalyzer test. Though refusing to blow means an automatic suspension of your license for 12 months -- the first three of which you aren't even eligible for a work permit -- it also means a prosecutor doesn't have hard data on how wasted you really were. The arresting officer can tell the court you refused because you didn't want to flunk the test, but just how drunk is drunk?

Ellenson and Thomas both challenged their license suspensions. Last fiscal year, the Department of Highway Safety suspended 64,020 licenses. Of the 20,201 who fought it, 8,638, or 42 percent, won. Not bad odds.

Hyman cautions against refusing a breath test, especially for people who are sober when pulled over. (Lawyer's hint: If you're absolutely sure you'll pass, opt for a blood test -- it's more accurate.)

If you fail the breath test -- as police chief Thomas apparently knew he would -- don't sweat it. A good DUI lawyer can easily shred test results in court. For example, burping before blowing skews the results higher. Insider knowledge like that raises questions about accuracy, and any lawyer worth his briefcase can have a field day with inaccurate testing.

As for field sobriety tests -- which, according to police, Ellenson failed miserably -- Hyman advises his clients to refuse them unless they're videotaped. (Ellenson's weren't.) Without tape, field sobriety test results are subjective. If you say "no" because there's no videotape, a prosecutor's refusal-equals-guilt strategy won't wash. "Most of these case are not of an aggravated nature," Hyman says. "DUI cases are all subjective. There's no doubt that [police] are overzealous."

But Ellenson and Thomas took the route favored by experts: technicalities. Both argued that they shouldn't have been pulled over in the first place, so under the "fruit of the poisonous vine" theory, any evidence found after the stop is inadmissible. (It's similar to an illegal search that leads to a drug bust -- the seized evidence can't be used in court, so the case is dropped.)

According to Hyman, that's a pretty easy case to make. In fact, in most of the DUI cases he takes to court, he either wins or gets the charges knocked down to reckless driving; which can carry the same penalties as a DUI, but doesn't look as bad on your driving record.

Ellenson argued that she wasn't swerving or driving more erratically than the average driver, so the arresting officer should have left her alone. Thomas insisted his swerving had nothing to do with the hours he spent in a local pub.

It may sound like a weak defense, but Ellenson and Thomas prove it works.

All DUI-defense strategies require a good lawyer, which of course means spending money. A lot of people don't have the financial wherewithal to fight.

"Here's the thing," Hyman adds. "Unless your case is a knee-walking case on a first offense, and definitely on a multiple offense, you should try to challenge it. The bottom line is, most first-time offenders are not hardened criminals. It's hard to tell when you're at .08. Some people miscalculate."

Even Central Florida's finest.


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