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Two more drivers suing city over DUI arrests; both tested negative for intoxicants

By Staff | Sep 24, 2011

Two more people are alleging that they were falsely arrested by the Cape Coral Police Department and so falsely imprisoned on DUI charges.

Ronald Abt and Rick Mey filed separate lawsuits against the city last month, claiming that they were arrested for DUI when no probable cause existed.

“We filed the cases because we feel that there has been some violation of the law,” said attorney Jon Herskowitz, who is representing both men.

“We are saying that their constitutional rights were violated,” he said. “That there was not sufficient probable cause to arrest them.”

A city spokesperson declined to comment Friday.

“We have no comment on pending litigation,” Christy Vogt said.

According to documents, Abt was stopped in July 2008 on the suspicion he was driving under the influence of alcohol or drugs. He took part in some field sobriety tests and was subsequently arrested after reportedly failing them.

At the police station, Abt consented to two breathalyzer tests and blew 0 percent on each. He then submitted to a urine test, but the results were not immediately available, so Abt was taken to the Lee County Jail and booked.

After spending eight to 12 hours in jail, he saw a judge, who reviewed the arrest affidavit and found no probable cause. The judge dismissed the charge against Abt, adding that “eight hours in jail was too long,” documents state.

In July 2009, Mey was stopped for failing to wear a seat belt, according to documents. Officers asked Mey to participate in field sobriety tests, and he insisted that he had not had any alcohol and asked to take a breathalyzer.

Officers insisted that Mey take part in the field sobriety tests. He was subsequently arrested after reportedly failing them. At the police station, Mey consented to two breathalyzer tests and blew 0 percent both times.

Mey then submitted to a urine test. The results were not immediately available and he was taken to the Lee County Jail and booked. After Mey spent some time in jail, the test came back negative, documents say.

The charges against Mey were nolle prossed – not prosecuted.

“You must be certain before you put an innocent person in jail,” Herskowitz said. “You need probable cause, and probable cause is based on evidence.”

He noted that the false arrests have impacted Abt’s and Mey’s lives.

“If you type in their name, it’ll show they were arrested for DUI,” Herskowitz said. “I think there’s a stigma attached to that.”

He and his clients hope that the lawsuits are a wake up call for Cape police.

“I hope they are taken seriously and changes are considered in the department so these types of incidents don’t occur again,” Herskowitz said.

Earlier this year, the city paid out nearly $41,000 total in two separate suits where the Cape police were accused of false arrests at DUI checkpoints. In July, Vincent Tallo received $22,000, while James Wilhelm received $18,750.

In September 2009, Tallo and his girlfriend ran into a sobriety checkpoint operated by the Cape police. Tallo participated in field sobriety tests and was then given a breathalyzer test, which Tallo blew 0 percent on three times.

Police then asked Tallo to take a urine test, believing that he was on drugs. An officer reportedly found a presence of drugs in the sample and Tallo was issued a citation and notice to appear for DUI – pending urine – checkpoint.

Because police had had Tallo’s vehicle towed from the scene, Tallo and his girlfriend were forced to walk more than two miles to his girlfriend’s home.

The state later nolle prossed – did not prosecute – Tallo’s DUI charge.

In March 2009, Wilhelm came across a sobriety checkpoint also operated by the Cape police. He reportedly asked to take a breathalyzer or blood test due to recently having open heart surgery, but was he given field sobriety tests.

After being placed under arrest following the tests, Wilhelm was waiting to take a breath test when he reportedly complained of severe chest pains. He was taken to a hospital, where Wilhelm demanded that a blood test be done.

The DUI charge against Wilhelm was nolle prossed – not prosecuted.