Hernando County DUI Breath Test Operator Resigns in Brooksville, FL
What is going on in Hernando County? Anyone with a client charged with DUI at the courthouse in Brooksville, FL, should pay special attention to the whether the DUI breath test instrument was really “approved” and whether Hernando County even had a legitimate breath test operator or agency inspector. Unfortunately, many individuals plead guilty to DUI never knowing about problems that could result in a reduction or even dismissal of their charges.
How bad is it? The prosecutors in Hernando County have finally started sending out “Brady Notices” to every criminal defense attorney with a pending DUI case pending at the courthouse in Brooksville, FL. The Brady Notice discloses serious problems with the way DUI breath tests are being conducted at the Hernando County Jail.
One such Brady Notice was signed August 10, 2011 by Shannon J. Laviano. It states:
A copy of the below information is being provided to defense attorneys in all open/pending DUI cases, arrested before 08-01-2011, to comply with the State’s ongoing duty of disclosure and/or possible Brady obligations. Only one copy of the information listed below will be provided to defense attorneys who represent more than one DUI defendant.
1. Email dated May 19, 2011, from Fran Greifenberger to Mike Maurer re: resignation.
2. Agreement between Frances Greifenberger and HCSO.
3. Agreement between John Douglass Lowery and HCSO.
4. Deposition of Fran Greifenberger on July 7th, 2011, in relation to State v. [deleted], 2001-CF-65.
5. HCSO Interoffice Memorandum re: Administrative Inquiry; Breathalyzer Room Breach dated July 18th, 2011.
6. Video from intoxilyzer room at HCJ from May 19, 2011.
The Brady Notice includes an Interoffice Memorandum dated July 18, 2011, from Colonel Michael H. Maurer, Chief Deputy, regarding “Administrative Inquiry; Breathalyzer Room Breach.” In that memo, Col. Maurer describes the abrupt resignation of Fran Greifenberger who acting as the “Breath Test Operator and as the FDLE Agency Inspector.” The e-mail was sent to Col. Maurer, Captain Beetz, Roger Skipper (FDLE Departmental Inspector), and Doug Lowery.
According to the memo, the Hernando County Sheriff’s Office had “two machines inspected and recertified by Sergeant Lane Winters of the Pasco County Sheriff’s Office.” Roger Skipper, an FDLE Departmental Inspector, “later came to the Hernando County Jail and determined there was nothing deficient with the machines and noted no tampering of the machine.” Sgt. Kathleen Reid of the Internal Affairs Unit conducted a preliminary inquiry into any Hernando County Sheriff’s Office Police Violations. Detective Anthony Scarpati was instructed to conduct an inquiry into any criminal violation.
On May 19, 2011, the former Breath Test Operator and FDLE Agency Inspector, Fran Greifenberger, sent out an e-mail that notified Col. Mike Maurer of the Hillsborough County Sheriff’s Office of the following:
Effective immediately I am resigning from my position as Breath Test Operator and FDLE Agency Inspector. I have been told there is a class being held this month to certify Deputies and Sergeants to perform breath testing services in Hernando County. Although no one with rank has come to us or given us notice, Detection Sgt. Stevens at the jail has been telling the Brooksville Police Officers that she will be taking over the Breath Testing Unit from me. I can no longer testify under oath to the security of the chain of evidence of the DVD recordings or the instruments for evidentiary use in accordance with [Florida Administrative] Rule 11D-8.007(1) and (2). The Detention Staff at the jail has breached security on numerous occasions and entered our locked office in violation of State Rules (see below*). Instruments have been turned off, the DVD players and camera have been moved, etc.
The severe stress that this has caused me over the last several months, has put me in a position where I can no longer in all good conscience fulfill my duties as Breath Test Operator and Agency Inspector for Hernando County. The instruments are now out of service.
These are the rules that I know have been and are continuing to be violated by the Detention Supervisors at the facility.
*State Rule 11D-8.007(1), Florida Administrative Code requires that evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the [Florida] Department [of Law Enforcement, “FDLE,”] and to persons authorized by a permit holder. The purpose of this rule is to ensure that an evidentiary breath test instrument is not misused or damaged.
*State Rule 11D-8.007(2), Florida Administrative Code requires that the instrument will be located in a secured environment which limits access to authorized persons described in subsection (1).
cc: State Attorneys Office, FDLE, John Lowrey [the other breath test operator in Hernando County, FL]
The first problem is that Frances “Fran” Greifenberger began working for the Hernando County Sheriff’s Officer on or about August 27, 2010, as an independent contractor. Such a procedure is not allowed because the Florida Administrative Rules require the breath test operator or agency inspector to be an “employee” of the law enforcement agency. Hiring an independent contractor is perform this role is not contemplated and appears to be expressly forbidden by the administrative rules. Every breath test that she performed maybe suppressed because it violates the administrative rules. It appears that her status as an “independent contractor” with a W-9 goes back to at least 2005 when the Hernando County Jail was run by the Corrections Corporation of America (CCA).
The State Attorney’s Office is calling Fran Greifenberger and John Lowery “contract employees” however it is clear from the evidence that they were being treated as independent contractors with a W-9 and no benefits such as inclusion in a retirement plan.
Whistleblower Claims – Fired for Exposing Serious Problems at the Hernando County Jail
Furthermore, it appears that Fran Greifenberger and John Lowery have a claim that they were essentially fired or forced to resign because they were “Whistleblowers” who spoke out about violations of the administrative rules including unauthorized persons having access to the Intoxilyzer and unauthorized individuals tampering with the instrument, unauthorized people within the jail actually turning the instrument off on at least one occasion.
Independent Contractors are Not Employees for Purposes of the Administrative Rules
In fact, the Brady Notices being sent out to criminal defense attorneys with pending cases in the Brooksville courthouse includes a copy of the “Agreement Between Frances Greifenberger and Hernando County Sheriff’s Office” in which she was promised:
- $50.00 per test performed;
- $10.00 per hour for time spent in case preparation, transporting videotapes and other administrative tasks;
- $13.00 per hour testifying in legal proceedings when issued a subpoena, with a minimum of 2 hours paid for such;
- $15.00 per hour for inspections of the Intoxilyzer 8000 instruments as required by FDLE; and
- $1.00 per hour on call fee when no test is performed in a given 24 hour period.
The contract also contains a “confidentiality” clause that states: “Any information given to or developed by the Contractor in performance of this Agreement will be kept in confidence and will not be made available to any individual or organization without the written approval of HCSO. This provision shall survive termination of this Agreement.” A similar agreement was signed by John Douglass Lowrey on or about August 27, 2010.
Why does the contract include a “confidentiality” clause when Fran Greifenberger and John Douglass Lowery are required to give truthful testimony during formal review hearings to contest the administrative suspension of the driver’s license, motion hearings in DUI cases, and at trial?
Deposition of Fran Grefenberger Included in the Brady Notice
On June 7, 2011, the deposition of Fran Grefenberger was taken by a criminal defense attorney in which Ms. Grefenberger stated:
- she resigned because her reports of irregularities were being ignored by the Hernando County Sheriff’s Office, including complaints of unauthorized individuals entering her office and playing with the breath test instrument, the fact that the breath test instruments were tampered with and shut off, and HCSO employees pretending to give a breath test to somebody that was arrested on May 19th when no breath test operator was authorized to do so;
- she complained that “[e]ver since the Sheriff [Nienhuis] took over [January 1, 2011], there’s been nothing but problems there. I’ve noticed things in the office and they said, ‘Oh, you’re imagining it’ until I got them on DVD. They denied it.” (page 5);
- she also complained that since “Major Page came into the jail, I believe it was August 27th as, like the acting warden. And we’ve had problems ever since Major Page basically took over.” (page 6);
- after she sent her resignation to Col. Mike Mauer on May 19, 2011 at 2:36 a.m., he allegedly refused to accept it and opened an internal affairs investigation;
- a video tape shows Detention Deputy Angela Kaylor, a Sergeant from the Detention Staff named Pabbon and Traffic Deputy Brad Collito going through Ms. Greifenberger’s office. Those individuals are not authorized to conduct breath testing or even be around the instrument.
From the perspective of a criminal defense attorney, these problems should result in the suppression of ANY and EVERY breath tests taken during this period. Furthermore, during any time period in which the Hernando County Sheriff’s Office did not have a valid procedure for taking a breath test, any alleged “refusal” should also be suppressed. The issue in a refusal case is whether the subject refused to submit a sample on an “approved instrument.” If the instrument was not approved, then the law enforcement officer had no business asking the person to submit and was essentially be untruthful about the availability of an “approved instrument.”
Under Rule 11D-8.008(1), FAC, an applicant for a breath test operator permit must meet the following qualifications:
- Eighteen (18) years of age or older;
- High school diploma or its equivalent;
- Present employment by an agency, or the Department;
- Successfully complete the basic Breath Test Operator Course approved by the Criminal Justice Standards and Training Commission;
- Submit to the Department a complete written application and proof of course completion, no later than ninety days after completion.
In accordance with Rule 11D-8.008(2), FAC, an applicant for an agency inspector permit must meet the following qualifications:
- Has been issued a breath test operator permit by the Department valid at the time that the application is submitted;
- Successfully complete the basic Agency Inspector Course approved by the Criminal Justice Standards and Training Commission;
- Submit to the Department a complete written application and proof of course completion no later than ninety days after completion;
- Present employment by an agency or the Department.
Roger Skipper’s Memo to Laura Barfield on Unauthorized Breath Test Instrument Access at the Hernando County Jail – Read the memo date June 21, 2011, from FDLE Departmental Inspector, Roger Skipper, to the FDLE Manager of the Alcohol Testing Program, Laura Barfield. In the memo, Roger Skipper confirms that non-permitted persons gained access to the breath test instruments at the Hernando County Jail. Not surprisingly, this FDLE inspector also reported finding no proof of misuse or damage during his brief investigation.
“Present employment” by the Hernando County Sheriff’s Office should not include an independent contract paid $50 to perform each test. The problems that occurred in Hernando County show why strict compliance with the rules is important. We created this blog article to make sure that other criminal defense attorneys and the public know what happened with the Hernando County Sheriff’s Office breath testing procedures during this time period. This problem has been largely ignored by the media. We also invite others to share additional information with us on this topic.
Leslie Sammis is a criminal defense and DUI attorney with the Sammis Law Firm who represents individuals charged with DUI throughout the Tampa Bay area including DUI cases in Hernando County, FL.
Submit this form to request a free and confidential consultation with one of our attorneys.