MY VERO: Vero attorney a leading national expert on DUI

Local attorney Mike Kessler wrote the book on DUI defense in Florida – not the only such book, of course, but maybe the best one.

Which makes sense.

Kessler, who has been practicing criminal-defense law on the Treasure Coast since 1985 and living in Vero Beach for the past 28 years, is among the state’s most knowledgeable, sought-after and successful DUI lawyers.

Before you reach for the phone, or begin shooting off an email, let me make it clear Kessler is not a defender of drunk driving. Neither am I. No one should condone such irresponsible, dangerous and potentially lethal behavior.

“I drive on these roads, and so does my family,” Kessler said. “I want everyone to be safe. I just don’t want innocent people to go to jail.”

The Mike Kessler story is an interesting one. He’s so learned and respected in his field that he not only travels throughout Florida and across America to speak at DUI-defense seminars – he’s a widely recognized expert on the breathalyzer – but he also testifies as an expert witness in drunk-driving cases.

“When I started out in criminal defense, I was just another guy,” said Kessler, who co-authored with William Head, a nationally acclaimed, Georgia-based DUI lawyer, the Florida edition of “The DUI Book: A Citizen’s Handbook on Fighting a Drunk Driving Case,” which was published in 2006 and is as comprehensive as it is easy to read.

“I wasn’t a DUI expert,” he added. “I became one.”

Why? He admits his initial motivation wasn’t entirely professional.

“Partly it’s because, my entire adult life, I tried to see America by seminar,” Kessler said. “If there was a place I wanted to visit, I tried to find a seminar there in my line of work so I could go and make a business trip out of it. That made it easier to justify taking time away from work.”

One particular seminar – a field-sobriety-test class in Atlanta about 12 years ago – made so profound an impression that it put him on the path to DUI defense expertise.

As fate would have it, the class, which was taught by former police officers, was sponsored by Head, his future co-author.

“I met him and some of his staff, and they were the most hard-working, hard-charging, over-achieving lawyers I had ever met,” Kessler said, “and they opened my eyes to a number of things about DUI defense.”

Kessler was so inspired that he essentially went back to school, joining the National College for DUI Defense, a first-of-its-kind association devoted solely to DUI defense. He also began seeking out and attending more DUI-focused seminars, many of which attracted top scientists and trial lawyers.

The scientists taught the science of DUI. The trial lawyers taught how to use it. And Kessler was a sponge, soaking up every drop of knowledge they offered.

“I was a political science major who went on to law school, and I was certain that when I got to college I was done with math and science,” said Kessler, a graduate of both the University of North Carolina and its law school. “So I had to go back and re-learn chemistry and biology.

“I never thought I was very good at science, and I didn’t really like science,” he added. “But the more I read about it as an adult and as a lawyer, the more I got it.”

And he’s still getting it.

“To show you that this can still be a struggle for me,” he said, “I took a weeklong class – five days, 40 hours in a crime lab in Chicago – and I’ve gone back and taken the same class three times to make sure that I’ve got it and I can teach it.”

It’s Kessler’s continued, post-graduate pursuit of DUI-related, scientific knowledge that separates him from his peers and makes him so good at what he does.

For those who don’t know: He’s not only a founding member of the DUI Defense Lawyers Association, but he also has been identified as a “Super Lawyer” the past four years by Law & Politics Magazine.

And when baseball star Miguel Cabrera was arrested for DUI in Fort Pierce in February 2011, his agent called Head, who promptly referred him to Kessler.

“If you’re a criminal-defense lawyer, you know that eyewitness evidence is the least-reliable there is,” Kessler said. “Science, on the other hand, is really reliable. Science doesn’t belong to the state or defense. It is what it is.

“So if you can build your case on scientific testing – it was either done right or it wasn’t – it’s a much more objective way of doing things,” he continued. “The science is objective, but knowing what I know about the science, I know where to look for human error.

“A lot of my DUI clients can’t afford to hire a doctor, professor or scientist to come in and challenge the government’s experts, so I had to become good enough to rebut them through cross examination without an expert,” he added. “I like to go toe-to-toe with the government’s science witnesses.”

That might be because he knows the biology and chemistry of DUI-related cases better than they do. Or it might be because he knows the science behind the DUI-detecting machinery better than they do.

Kessler said the particular model breathalyzer used by law-enforcement agencies in Florida is flawed in both its design and function, and it too often produces false blood-alcohol-content readings that are higher than they should be.

The result is that people who weren’t driving drunk have been charged with DUI.

“One reason I need to be so good at this is that more people get wrongly accused of DUI than every other crime on the books,” he said. “A lot of police agencies have policies, written or otherwise, that if you drink and drive, you go to jail. They’re saying, ‘It’s our job to get them off the road. Let the prosecutor worry about whether they can convict them.’

“But it’s not against the law to drink and drive,” he added. “It’s against the law to drink too much and drive.”

Kessler said he is the only lawyer in Florida who owns an Intoxilyzer 8000, which is the breathalyzer used by police in this state, and detailed the problems with its design and operations. Even when it works the way it’s supposed to, he added, it still can produce artificially high readings.

And get this: The 8000 is far better than the previous model used by the state – the Intoxilyzer 5000.

“My job in a breath-test case is to show the jury why this reading isn’t reliable, and I am capable of doing that,” Kessler said. “But if I’m going to challenge these results, I better know how this machine works and know where the kinks are.

“The reason the manufacturer won’t sell to lawyers is because they know, if we get them, we’re going to do experiments and look for what’s wrong,” he added. “The 5000 was an absolute piece of junk, and there are problems with the 8000, too.”

According to Kessler, the Florida Department of Law Enforcement-purchased machine’s flaws include: allowing possible radio frequency interference from cell phones; being unable to differentiate between alcohol hydrocarbons and other hydrocarbons in someone’s breath; and missing distortions caused by stress-related, elevated breath temperatures, which can alter blood-alcohol-content readings by as much as 25 percent.

“Florida intentionally uses a machine that it knows reads too high,” Kessler said, “but it doesn’t care because they’re not letting guilty people go – they’re just convicting some innocent ones.”

Thing is, suspected drivers aren’t arrested, at least officially, until they fail the roadside sobriety tests. Only then do police request that they submit to the breathalyzer.

And if you think the breathalyzer is flawed . . .

“In most cases, by the time the cop asks you to take the roadside test, he’s already decided that you’re being arrested,” Kessler said. “The test is just evidence gathering to be used in court.”

The real problem, he added, is that there’s virtually no correlation between the exercises that comprise the roadside tests and a driver’s faculties being impaired by alcohol.

Kessler said the standard instruction given by judges to juries as to what constitutes “normal faculties” includes, but is not limited to, the ability to see, hear, walk, talk, judge distances, operate a vehicle, make judgments and generally carry out the mental and physical tasks of daily life.

“It’s an extensive list, but balance is not on there and coordination is not on there,” Kessler said. “If you look at the roadside exercises and put it up against that list of what constitutes normal faculties, nothing they test matches anything on that list.”

That’s not the worst of it.

“In every one of these exercises, the police ask you to stand in an artificial position or posture, in an abnormal stance, and they ask you to perform an abnormal activity,” Kessler said. “And when you can’t do it to their satisfaction, they say your normal faculties are impaired.

“To start with, they have you stand in that position – with one foot in front of the other and with your arms at your side – while they read you their instructions,” he added. “Nobody stands that way. And the walk-and-turn exercise? Nobody walks that way.”

For one trial, Kessler said, he found photographs on the internet of the world-famous Flying Wallendas and used them to show a jury that not even tightrope walkers walk heel to toe with their arms at their sides.

Kessler also challenged the roadside exercise that requires suspects to stand on one foot, keeping the other foot 10 inches off the ground and looking at their toe.

“Stand on one foot? Nobody does that. Nobody practices that,” he said. “What they’re really doing is, they want you to change your center of gravity and they want your head down because that changes your balance, because now your leg is pulling you forward.”

(Police officers who demonstrate the maneuver know to slightly lean back at the waist to help maintain balance.)

“Another thing,” Kessler continued, “is that there’s absolutely no evidence whatsoever of a correlation between your ability to touch the tip of your nose with the tip of your finger with being impaired.”

He paused for a moment, then added, “You can be totally sober and completely innocent, and still fail the roadside test.”

Kessler teaches all of this when asked to speak at DUI-defense seminars, which he said are usually sponsored by bar associations – something he has been doing several times each year since 2010.

This year, he already has taught at seminars in Scottsdale, Ariz., Columbus, Ohio, and Key West. Over the years, his sessions have covered various aspects of DUI defense, including roadside sobriety exercises, the breathalyzer, blood-testing and trial skills such as cross examination.

He also has been conducting what he describes as a “DUI Boot Camp,” at which he teaches DUI defense, free of charge, to lawyers in the local Public Defender’s Office, where he began his career 31 years ago.

Kessler, whose office is in Fort Pierce, said about 70 percent of his clients are facing DUI charges. Some, such as Cabrera, come to him through referrals stemming from his participation in DUI defense seminars.

“It’s certainly good for my reputation,” he said. “I’m becoming more known nationally because I do this. And with Florida being a destination state, I get calls from all over the country from lawyers saying, ‘I’ve got so-and-so in my office and he got a DUI in Key West last week.’

“So, sure, there’s a business aspect.”

But there is also a payoff that goes beyond dollars.

“Ambition is a big part of it,” Kessler said. “I don’t care about being the best, because I don’t care if there’s a bunch of other people who are also very good lawyers, but I take a lot of pride in my work. I want to be among the very best at what I do.

“I went to a seminar in New Orleans several years back and, one morning, I heard from a legendary American trial lawyer named William Moffitt,” he added. “He gave a lecture called, ‘Becoming a Lawyer to Be Reckoned With,’ and that was it.

“I decided that day: That’s what I want to be. I don’t want to be just another guy. I want to be recognized as a great trial lawyer.”

Inspired by Perry Mason as a child and entertained by Denny Crane as an adult, Kessler already has achieved that goal. He is a small-town lawyer who has earned the respect and admiration of his peers here and national recognition as a top-shelf, DUI-defense expert.

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