Official: Breath testing pointless
By CARRIE JOHNSON
© St. Petersburg Times, published April 27, 2001
CRYSTAL RIVER -- A Breathalyzer test probably wouldn't have helped build a driving-under-the-influence case against a prominent local banker who was involved in a hit-and-run-car wreck, an official from the Florida Department of Law Enforcement said Thursday.
Don Suereth, an inspector with the department's alcohol testing program, said there were too many unknown variables in a case like Patrick Fitzpatrick's for a Breathalyzer test to be effective.
"It would have been a very, very tough thing to make a case," he said.
Fitzpatrick, 44, is branch manager of Citrus Bank and serves on the Mosquito Control Board. Witnesses said he appeared to be intoxicated at the time of the 7:30 p.m. wreck.
Police said Fitzpatrick left the crash scene and returned home. Another motorist followed Fitzpatrick, saw his vehicle's license tag information and relayed it to police.
Officers traced the vehicle to Fitzpatrick and went to his home. They said he smelled strongly of alcohol when they found him.
Crystal River Sgt. Mack Ballard said that, while he suspected Fitzpatrick was drunk, he could not arrest him because Fitzpatrick said he didn't start drinking until he returned home after the crash.
Police Chief Jim Farley is investigating Ballard's conduct and questions why Ballard did not arrest Fitzpatrick and arrange a Breathalyzer exam. Farley said Ballard could be disciplined. But Suereth said the Breathalyzer test couldn't determine when Fitzpatrick started drinking that night. Depending on the contents of a person's stomach, alcohol can be absorbed into the bloodstream as quickly as 30 minutes or as slowly as three hours.
"A breath test can't go back in time," Suereth said.
Charles Vaughn, an Inverness defense attorney, said Fitzpatrick's story isn't uncommon. Vaughn has represented several clients in hit-and-run cases who said they didn't start drinking until after their wrecks.
"I've had one client who was told that's how you get out of it, you tell the police you were drinking after the accident," Vaughn said.
Speaking as a defense attorney, Vaughn said a Breathalyzer test wouldn't have made much of a difference to Fitzpatrick's case. "Breathalyzers are always after the fact," he said.
The wreck happened at Citrus Avenue and Turkey Oak Drive after Fitzpatrick allegedly ran a red light. The passenger in the car that was struck, 30-year-old Dawn Lacascio, suffered minor injuries.
Fitzpatrick was issued citations for leaving the scene of an accident with property damage, a misdemeanor, and leaving the scene of an accident with injuries, which may be a felony, depending on the severity of the injury.
The case has been sent to the State Attorney's Office for review.
Professor Chris Slobogin from the University of Florida law school said that if Fitzpatrick was weaving in and out of the road, as witnesses have stated, that could be very damaging.
But without an arrest or physical evidence, it will be hard to make any additional charges stick.
"As a defense attorney, I would say, "If you thought you had probable cause, why didn't you arrest him?' " Slobogin said.
Farley said Ballard did not arrest Fitzpatrick in part because the department was short-staffed that night and the paperwork would have tied him up for too long.
Ballard left for a two-week out-of-state vacation Wednesday and could not be reached for comment.
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