DUI evidence for driver disputed

The attorney of a woman involved in a fatal accident wants the court to throw out her blood-alcohol test results.

By CHRISTOPHER GOFFARD

© St. Petersburg Times, published July 15, 2000

NEW PORT RICHEY -- After Melanie Rose Bowie's truck slammed into an acquaintance and killed him, the Florida Highway Patrol drew her blood and found she had a blood-alcohol level of 0.14 -- nearly twice the level at which the law presumes impairment.

The 25-year-old Holiday waitress, who had a history of drunken driving, faces only a misdemeanor count of driving under the influence in connection with the Sept. 14, 1998, death of Louis Rapisarda. But the centerpiece of that case was under attack Friday, as Bowie's lawyer, Gregory Olney, asked the court to throw out the blood results.

Olney argued that FHP troopers did not have probable cause to draw the blood, since after the crash they had not noticed signs that Bowie was impaired by alcohol. While troopers reported smelling an odor of alcohol on Bowie, as well as noting that her eyes were red, she did not exhibit classic symptoms of serious intoxication, such as slurred speech or a stumbling gait.

"The odor of alcohol and bloodshot eyes is not enough," Olney said.

Further, Olney argued that Bowie's driving wasn't responsible for the death. "There was no evidence of any neglect or negligence on the part of my client that caused this accident," he said.

Olney said he could not recall a case in which a person showed a 0.14 blood-alcohol level but showed no signs of impairment, which leads him to suspect the test might have been faulty.

While prosecutors had contemplated filing a charge of DUI-manslaughter against Bowie, they faced difficulty proving that even a sober driver could have avoided Rapisarda as he walked along Alt. U.S. 19 in Holiday, an unlighted stretch of road without sidewalks.

Compounding the difficulty: Rapisarda had five drinks in him when he died. And he was walking with traffic, rather than against it, which is against the law.

Even so, prosecutor Katie Hardgrave argued that troopers who found Bowie at the scene had reason to suspect she might be intoxicated. Along with the odor of alcohol and bloodshot eyes, they knew she was returning from a bar, and she drove at least 300 feet down the road after striking Rapisarda, Hardgrave said.

The trial is scheduled to begin before County Judge Marc Salton on Aug. 10. Salton is expected to rule in the coming weeks on whether to keep the DUI evidence. If he suppresses it, it would cripple the prosecution's case.

For the family of Rapisarda, it still seems an injustice that Bowie -- who already has two DUI convictions -- shouldn't face more serious charges for the incident. Rapisarda and Bowie had been drinking at a bar together before the collision.

"I sat there and I listened, but when I do, I'm numbed," said Rapisarda's mother, Phyllis Doughtie. "I don't understand how you can have a 0.14 blood-alcohol level, be driving, and hit somebody, and not be responsible."

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