Warner did get a break this past June -- make that a tough break. She's still trying to recover from the morning she woke up trembling, nauseated, and clueless in a cell at the Metro-Dade women's detention center on NW Seventh Avenue. The last thing she remembered from the previous night was leaving her drink at the bar while she buttonholed the manager of Bar None, a popular South Beach watering hole, for information about Sylvester Stallone's upcoming 50th birthday party. (Stallone has an ownership interest in Bar None and Warner hoped to finagle an invitation to his party.)
During the entire evening, Warner recalled, she visited two nightclubs, consumed one glass of red wine, several glasses of mineral water, and a vodka on the rocks. She didn't feel at all tipsy. But to the police later that night, she was just another drunk driver, picked up in such a state that she wasn't able even to blow into a breathalyzer.
Later, however, Warner became convinced that there were other reasons for her condition, and that the police who arrested her as a drunk should have called medical personnel and tested for other drugs. Had they done so, Warner contends, they surely would have discovered that she was not drunk but rather the victim of a type of assault that has become disturbingly familiar: women being surreptitiously drugged and sometimes raped, and who wake up hours later with no recollection of what transpired. Usually the drug is the newly fashionable rohypnol -- known as roofies and also called the date-rape pill.
A powerful sedative not sold legally in the U.S., rohypnol produces symptoms similar to intoxication by alcohol and other strong sedatives. One of its most common effects is short-term memory loss once it kicks in, which can take from 15 to 45 minutes. (One well-publicized local case involves two University of Miami students who say they were raped after their drinks were spiked with roofies at a fraternity party.) But because rohypnol is usually impossible to detect in the body after 48 hours, Warner and scores of other women who believe they've been drugged -- but who did not promptly undergo testing -- can't present physical evidence to prove it.
In Warner's case rape isn't an issue, and in a somewhat unusual twist on DUI defenses, she doesn't deny she was in fact driving under the influence, though not of alcohol. But she does want to regain her driver's license, which was automatically suspended because she allegedly refused a breathalyzer test. "I wasn't in any condition to refuse," Warner insists. "I was sick, and they should have seen that."
Her tearful mother arrived that morning, Thursday, June 27, to bail her out of jail. When they went to retrieve Warner's Jeep Cherokee from the lot to which it had been towed, they found citations for DUI and other traffic offenses in the car, as well as the vomit-caked jacket Warner had been wearing.
Warner says she was unable to eat for several days afterward, was too weak to hold her head up, and was so sick she asked her mother to feed her two boys. When she finally saw a doctor, he told her it was unfortunate she'd waited so long because it was too late to confirm his suspicion that she was suffering the aftereffects of a rohypnol high.
Although no one knows just how prevalent these types of assaults are, the growing use of rohypnol -- both by sexual predators and those who ingest it for their own amusement -- prompted Dade County to join with the University of Miami two years ago in the creation of what may be the first laboratory in the nation to test for the presence of rohypnol and other drugs in DUI cases where the defendant passes a breath test but nonetheless appears to be intoxicated.
In the past twelve months, the toxicology lab has attributed more than 60 DUI cases to roofies, although some involved other drugs mixed with rohypnol, according to lab director H. Chip Walls. "We started documenting the cases in 1995, so it's hard to know if there are any trends right now," Walls says, "but the numbers don't seem to be dropping off. We've seen a lot of times in a nightclub someone will dissolve a pill in water or in alcohol, in which case the drug takes less time to reach significant effects. It seems to be within fifteen or twenty minutes."
According to spokesman Dennis Morales, Metro-Dade police policy leaves it to the discretion of individual officers whether to request testing for rohypnol after a DUI stop. In Rose Warner's case, Ofcr. Mark Huetter apparently saw no reason to question his initial impression that she was very drunk. She had the "odor of an alcoholic beverage on her breath, which became stronger as she spoke," he wrote in the arrest report, and "swayed as she walked ... and used her vehicle as support." At a hearing two months later, Huetter described Warner as frequently losing her balance, vomiting, and slipping in and out of consciousness. "She didn't need medical attention," the officer said at the hearing. "This is just an alcohol-related problem. And I have 25 years of police work, and I have seen people under medical [conditions] and under alcohol." But he'll never be able to prove that assertion, just as Warner can't dispute it, because no breath, blood, or urine testing was done.
Two weekends after her arrest, Warner took her mother along to revisit the two clubs she'd been to that Wednesday night to see if anyone could fill in her memory gaps. Though no one was able to do that, the Bar None manager did confirm that she had left suddenly around 12:30 a.m. after complaining she didn't feel well.
Between 12:30 and 2:30 a.m., when the police report states she was arrested, Warner doesn't know where she was or what she was doing. She even went to a hypnotist in an effort to recover her memory. What she came up with was a recollection of being in her Jeep on a dark road, throwing up, and a police officer banging on the window with a flashlight. Officer Huetter's arrest report states that he had to "leave the roadway" to avoid being hit by Warner's weaving car as it traveled along South Perimeter Road bordering Miami International Airport (far from Warner's normal route between Miami Beach and Plantation).
Huetter radioed for Sgt. Pablo Lima, who is certified to administer roadside sobriety tests. According to Huetter's report, Warner "did not perform up to standard and was arrested." (In a departure from normal practice in DUI arrest reports, no specifics of her substandard performance are documented.)
Shortly after 4:00 a.m., Warner arrived at the Doral district substation where, according to the arrest documents, she initially refused to take a breath test and then, while drifting in and out of consciousness, decided to take it but was unable to. The illegible scribble around the signature line of the "implied consent" form -- which defendants sign to attest that they were warned their driver's license would be suspended for a year if they refused to take a breath or urine test -- bears no resemblance to her normally neat signature. Snapshots were taken of her curled in a fetal position on the floor, apparently in front of the breathalyzer machine.
This past September Warner went before a state hearing officer to ask that her license be reinstated pending the outcome of her DUI trial, which is expected to take place in the next few weeks. She argued that she had been incapable of refusing the breathalyzer and that she is a very light drinker who has never been in trouble. The hearing officer didn't buy her argument, and she has since had to bum rides, turn down jobs, and restrict her boys' after-school activities because of unreliable transportation. "I don't set out to get drunk," Warner says. "In these places you really just order a drink to fit in. It's all business. I have two children to take care of. This is ruining my life."
Warner's attorney, Susy Ribero-Ayala, says she hasn't found any case law in which a semiconscious person was considered to have refused a breath test. "The police were right to stop her, don't get me wrong," says Ribero-Ayala, who six months ago was prosecuting DUI and other cases for the Dade State Attorney's Office. "But her condition should have been alarming to them. They should have seen her pills in the glove compartment [to combat hypoglycemia], or they should have called a [police] drug recognition expert." (A hypoglycemic crisis can produce symptoms similar to drunkenness, including an alcohol-like odor on the breath.)
Toxicologist Chip Walls and other drug experts agree that given Warner's failure to complete a breath test and her extreme intoxication, police should have attempted another kind of drug test. "It's not at all uncommon for someone to not be able to blow into the breathalyzer," Walls says. "The police still have a couple of options: They can get a blood sample or a urine sample or do a [drug] evaluation."
The fact that Warner was in South Beach when the episode began makes it more likely -- though far from certain -- that she could have been drugged, says J. Bryan Page, professor of anthropology and psychiatry at the University of Miami, who studies street drug use. "South Beach is one of the places where rohypnol is very common," Page says. "It's dispensed readily in Europe, and there are a lot of models coming from those countries and it follows them in somehow. The place attracts that, anyway; it's kind of an epicenter for rohypnol use. So that increases the likelihood this could have happened to her."
Denizens of South Beach nightspots are reluctant to discuss such topics, although a few women interviewed recently claim that roofies and other drugs are routinely slipped into drinks at the Beach's popular nightclubs. "I've been to Monte Carlo; I've been all over the world," said a statuesque Scandinavian woman who was vague about her occupation. "And South Beach is the worst. It happened to me. I couldn't sleep for six days afterward.
