This article contains both facts and opinions. The opinion content will be set off in block quotes like this one. Warren Redlich is a criminal defense and personal injury lawyer in New York and Florida, and has taken over 50 cases through jury verdict. In the late 1990s he won three awards from Allstate, including being named their top trial lawyer in the northeastern United States.
As we previously reported, Mark Schneider was recently charged with DUI Homicide and Negligent Vehicular Manslaughter.
The accident occurred on Palmetto Park at or near its intersection with Toledo Road, between Powerline and St. Andrews. The location is near the YMCA. It’s a quiet section of Palmetto Park Road. Toledo Road comes in from the north in a “T” intersection. There is no road going south. There are no commercial businesses or driveways in this area and the speed limit is relatively high at 50 mph.
West Boca News has obtained the probable cause affidavit that was filed in support of the charges. Here are some pieces of that paperwork, along with analysis.
Please note that the images are larger than shown on the screen. If you click on them you will see a larger and more readable version – phone users may need to zoom.
On the first page you can see that he’s accused of “DUI Manslaughter” (§316.193(3)(c)(3)) and “Vehicle Homicide.” The first error, and a minor one, is that the officer indicated the “manslaughter” statute, §782.07(1). The correct statute for Vehicular Homicide is §782.071, and that is entered correctly in the court docket. The “§” symbol is an abbreviation for “Section“.
These are the same charges that were filed against Angela Stracar in the fatal accident a few years ago near the entrance to Boca Isles South. Stracar’s conviction was reversed on appeal last fall.
The details start flowing on page 2:
Schneider and another driver (Reed) were heading westbound on Palmetto approaching Toledo. Velasco (the victim) was stopped at the light heading the same direction. One thing worth noting is the vehicles. Schneider’s Hyundai Genesis weighed roughly 3300 pounds while Velasco’s Hyundai Accent weighed roughly 2400 pounds. It’s a harsh reality of physics that occupants of smaller cars are much more vulnerable in collisions. The 2010 Accent did not perform well in crash tests.
The affidavit asserts that “numerous witnesses” said Schneider was going “well in excess” of the speed limit, that he was “changing lanes frequently,” and that he lost control after making a sudden lane change, striking one vehicle and going into a skid.
Witness testimony at trial is rarely this simple and some police officers exaggerate. Years ago I had a case where the arresting officer initially testified that he pulled my client over in part because he was changing lanes frequently. On cross-examination we learned that this meant two lane changes in a 1.5 mile stretch of road.
It is extremely difficult for witnesses to estimate vehicle speeds. Humans do not have radar eyes. However, as we will see below, there is other evidence on the speed that may (or may not) be more reliable.
Page 3 further describes the mechanics of the collision, with Schneider’s vehicle striking Velasco’s, and forcing her onto the median where she then hit a tree.
It then indicates that Velasco’s vehicle hit a tree “with the left rear quarter panel behind the driver’s door, and then “rotated slightly” before coming to rest.
The mechanics of this collision do not seem that extreme. The Genesis and Accent were traveling the same general direction and while the collision may have been somewhat severe, Schneider does not appear to have experienced any major injuries. The Accent’s collision with the tree also appears minor as written here, since the vehicle only rotated slightly. The point of impact on the car was behind the driver’s door, so it should not have caused any part of the car to crush into her.
I do not have the accident reconstruction yet (PBSO says it’s exempt from the Sunshine Law and they’re probably right), but there is a strong chance that Ms. Velasco was not wearing her seatbelt. When I see accident cases like this, badly injured occupants are often unrestrained, leaving them to bounce around the car and hitting hard surfaces. The Accent did have a full complement of airbags but they can’t cover all hard surfaces.
With that said, if the State proves recklessness or DUI, the potential lack of a seatbelt on the victim probably will not help Schneider.
Also noteworthy from page 3 is that the lab results for blood on Schneider’s airbag have not come back yet. The affidavit is dated April 1, 2014, over six months after the accident. There is no explanation in the affidavit for why it has taken this long.
Page 4 has a lot more information:
The investigator describes his observations of Schneider at the scene, including “red watery eyes, an odor of an alcohol type beverage,” and comments about emotions. The officer asked Schneider for a blood sample and Schneider “started to ask questions.” They then took Schneider’s blood without a warrant.
It is likely that this blood evidence will be thrown out. On the facts as stated here in the probable cause affidavit, there was not enough to justify a warrantless blood draw. Schneider had not been arrested and he had not refused to give a blood sample. Starting to ask questions does not constitute a refusal.
The officer’s statements about Schneider at the scene are dubious. He points to red watery eyes to suggest intoxication, but the guy was just in a car crash and there was blood on his airbag. The “odor of an alcohol type beverage” is something I’ve heard many officers say, even in cases where the driver had no alcohol at all. Alcohol is odorless and there many different smells consistent with alcoholic beverages and other sources. Comments about his emotions could be related to alcohol or drugs, or to the fact that he’d just been in an accident, or could reflect a mental health problem (see below).
Blood tests showed a high level of alcohol in the blood with a BAC of nearly 0.18. That is dramatically higher than the legal limit of 0.08, and would typically mean somewhere in the neighborhood of ten drinks. The blood also showed marijuana at 5.7 ng/ml (nanograms per milliliter) and Fluoxetine (Prozac) at 290 ng/ml.
The marijuana level is probably not high enough to cause impairment. See Expert Panel on DUI Cannabis. Similarly the Prozac level is within the therapeutic range (see Mayo Medical Laboratories) and is considered a low risk for impairment. With that said, combining the alcohol, marijuana and Prozac might increase the risk of impairment. It would be difficult to find an expert to testify credibly on this since research on such drug combinations is rare.
What’s striking is the decision to draw blood so quickly without a warrant. BAC levels drop by roughly 0.015 per hour as the liver processes the alcohol out of our blood. If someone has a BAC over 0.08, it would take 5-6 hours for the BAC to drop to zero. Here with Schneider’s blood at 0.18, it would have taken roughly 12 hours. If they had waited, a prosecution expert would have been able to explain that to a jury and that would have supported a DUI Homicide charge.
Please also note that the presence of Prozac in his blood suggests a mental health problem, which could explain Schneider’s allegedly erratic behavior on the scene.
The last substantive paragraph is the biggest problem for Mr. Schneider. Computer data from the car says he was going over 90 mph on a 50 mph road.
We can’t know at this stage if this evidence is reliable. The State will have to get witnesses together, including an expert witness, to make sure the evidence can be used in Court and to explain it to a jury.
This takes us back to the language of the Stracar decision.
The evidence presented at trial showed that appellant’s actions, while certainly negligent, did not rise to the level of recklessness sufficient to sustain the convictions for vehicular homicide. See … State v. Esposito … (reversing conviction for vehicular homicide where evidence at trial merely demonstrated negligence with no evidence of intoxication, speeding, erratic driving, or failure to observe traffic regulations); Berube … (reversing vehicular homicide conviction where driver executed improper left turn across oncoming traffic and there was no evidence that driver was intoxicated, distracted from the road, or speeding). The presence of central nervous system depressants in appellant’s blood stream after the crash, in and of itself, is insufficient to support a finding of reckless driving. … W.E.B. v. State … (reversing conviction for vehicular homicide where, although driver had consumed several beers hours prior to the accident, there was no evidence of impairment).
Unlike Stracar, here there is evidence that Mr. Schneider was speeding and driving erratically. If – and only if – the prosecution is able to prove those points to a jury, he is likely to be convicted of Vehicular Homicide. The DUI Homicide charge is unlikely to survive due to the warrantless blood draw.
As we noted in our previous article on Schneider’s DUI Homicide arrest, this prosecution was delayed for unknown reasons. The incident occurred in late September and charges were not filed until early April. A delay like that suggests the prosecution has some other problem we don’t know about yet. We also wonder if the previous arrest of Mr. Schneider for resisting without violence (which was quickly dismissed) creates a potential double jeopardy problem.