Why Florida cops didn’t give a DUI test to driver of flipped boat with booze containers

When police arrived at a Labor Day weekend boat crash in Biscayne Bay, they found a capsized craft and more than a dozen people tossed into the water.

A day later, they found more than 60 empty containers of booze stashed on the wrecked boat.

At the scene on the water, state investigators didn’t give the boat driver a drunk-driving test. They say they didn’t have probable cause to do so because he didn’t seem impaired.

That is typical protocol on the water, just like it is with car crashes on the road: It’s up to cops to determine if there is a reason to test.

The head of the state agency that investigated the 2022 Labor Day weekend crash, which killed a teen girl and seriously injured another, defends the inquiry, as do state prosecutors.

The investigation finished this month and led to minor charges for the vessel’s operator, prominent Miami real estate broker George Pino.

The families of the two girls most affected by the Sept. 4, 2022, crash — Luciana Fernandez, who died in the hospital the day after at the age of 17, and Katerina Puig, the now-18-year-old left with life-altering injuries — criticized the investigation after the final report was released this month, saying the charges amounted to a wrist slap for Pino.

Rodney Barreto, commissioner of the Florida Fish and Wildlife Conservation Commission, said in an email to the Miami Herald that his officers couldn’t legally force Pino to submit blood or take a breath test because there wasn’t probable cause in the moments and hours after the crash.

Barreto said the investigator in charge that day “is a certified drug recognition expert and stated in the report that he saw no signs of impairment and neither did any of the other officers at the scene.”

“The law does not enable our officers to compel a blood draw or breath test without probable cause. No one admitted in interviews to consuming alcohol,” Barreto said.

Leslie Sammis, a Tampa-area attorney specializing in boating under the influence cases, said that given the available facts at the time of the crash, the less serious charges aren’t unusual.

“The officers need at least reasonable suspicion of impairment from drugs or alcohol before they can request field sobriety exercises,” Sammis said.

And, unlike in a car, having open containers of alcohol on a boat is not a crime, she said.

Because Pino declined to voluntarily submit to giving a blood sample, officers at the scene would have had to obtain a warrant from a judge, Sammis said.

“The judge probably wouldn’t have signed a warrant unless they had specific facts that this operator himself was impaired by drugs or alcohol,” she said.

The alcohol containers

But what about the 61 empty alcohol bottles and cans found on board?

Investigators didn’t find the empty alcoholic beverage containers and bottles until the boat was checked the next day. They were in a trash can on the vessel, according to photographs included in the FWC’s investigative reports.

The day of the crash, the boat was overturned, so officers say they couldn’t inspect the vessel, and those on the scene during the chaotic aftermath were immediately concerned with pulling people from the water and getting them to the hospital.

The investigation concluded that alcohol wasn’t a factor in the crash despite the containers found on Pino’s 29-foot Robalo vessel, as well as an empty bottle of champagne and a half-consumed bottle of liquor.

The charges

The Miami-Dade State Attorney’s Office ultimately charged Pino with three counts of misdemeanor careless boating, based on the report from the Fish and Wildlife commission.

Pino refused to submit blood at the scene, as the FWC investigator requested, saying it was because his lawyer wasn’t present, according to the report.

“The full inspection of the vessel, which occurred a day after the crash, revealed the containers you refer to,” Barreto wrote. “They were not visible at the scene.”

In an incident summary report, the FWC investigator in charge of the case, who has not been named, said: “As part of this investigation, alcohol was not considered to be a contributing factor to this accident. Pino showed no signs of impairment when officers responded nor when I arrived on scene.”

The FWC in subsequent follow-up questions refused to answer how the investigator came to that conclusion.

“The report speaks for itself, regarding your question about field sobriety testing,” Florida Fish and Wildlife spokesman Rob Klepper said.

Miami attorney Michael Mirer also said the officer’s judgment of whether a person was under the influence would be “the threshold” to test for intoxication.

“The officer would need probable cause that the driver of the boat was under the influence in order to compel blood test, Mirer said.

What witnesses saw

The Florida Fish and Wildlife Conservation Commission released several documents to the Miami Herald it said were used to justify the recommended charges against Pino and that were filed by the Miami-Dade County State Attorney’s Office on Aug. 16: one count of careless operation of a vessel causing death and two counts of careless operation of a vessel resulting in serious bodily injury.

Both charges are punishable by a maximum jail time of 60 days and a $500 fine.

The documents include supplemental reports from other FWC officers at the scene that day, and who interviewed witnesses, including the passengers on the boat.

One witness told police that “all the girls” on the boat “were drinking alcohol.”

The parents of Katerina Puig have a pending lawsuit against the Pinos filed in March claiming, among other allegations, that George and his wife, Cecilia, provided alcohol to the 12 teens on their vessel that day. The Pinos denied the allegation in a court filing this month.

Birthday outing on the boat

Pino took the group was on an outing on Elliott Key in Biscayne Bay to celebrate his daughter’s 18th birthday. They were on their way back to the Pinos’ vacation home in the gated Ocean Reef Club in Key Largo when he crashed his boat into a fixed channel marker in Cutter Bank on the Intracoastal Waterway — capsizing the vessel and sending all 14 people on board into the water.

Paramedics flew Luciana Fernandez to Kendall Regional Medical Center, where she died the next day.

Katerina Puig was taked to Nicklaus Children’s Hospital near South Miami with severe injuries. Her family has not gone into specific details about her medical condition, but her attorneys said she will require a lifetime of medical care. The FWC said in its latest report that she remains “unresponsive.”

‘Two beers’

Pino told investigators that he drank “two beers total for the day.” Only one other person gave statements to the police that she saw Pino consume any alcohol, and that was that she witnessed him drink one beer while at Elliott Key.

Another passenger who said she consumed alcohol told investigators “that the beverages were already on board the vessel in a cooler prior to herself and the occupants boarding,” one of the officers wrote in a statement.

State attorney’s inquiry

Ed Griffith and Lissette Valdes-Valle, spokespeople for the Miami-Dade County State Attorney’s Office, said despite these statements and the alcohol containers found on Pino’s boat the day after the crash, prosecutors didn’t have enough to seek higher charges.

They didn’t pursue charges, for instance, based on the accusation the Pinos provided alcohol to the teens because no one on the boat stated that to police, and there is no evidence clearly showing the couple physically handed the booze to the girls.

“The matter was investigated, but the standards necessary to prove such a case, based on Florida case law, could not be met,” Griffith said.

Broken relationships

While the criminal investigation into the crash is over, several civil cases are ongoing in state and federal court, including the Puigs’ lawsuit against the Pinos. That case picked up steam this month, with all the parties involved filing multiple motions in Miami-Dade Circuit Court.

The tragedy not only has legal repercussions, it also strained friendships within the tightly knit South Florida Christian private school community. All of the girls on the boat attended either Our Lady of Lourdes Academy in Southwest Miami-Dade, Carrollton School of the Sacred Heart in Coconut Grove or Westminster Christian School in Palmetto Bay.

The Fernandezes were taking part in the birthday party on Elliott Key, arriving and leaving on a separate boat.

Last week, the parents, Andres and Melissa Fernandez, released a statement critical of the investigation and the Pinos.

“The only real way to conclusively rule out alcohol as a factor would have been to test for such on that day. The fact that self-preservation seems to be more important than helping provide answers and closure to our family is overwhelmingly offensive; we’ve had to bury our 17-year-old daughter and another teenager lost life as she knew it,” they said. “Minimizing the accident, the irresponsible actions causing it, and the gravity of our reality, to the likes of a mere traffic citation, only adds insult to injury.”

So far, the Fernandezes have not filed any litigation in connection with the crash.

Statement from Pino

George Pino issued a statement following the release of the FWC investigation highlighting the findings that alcohol was not a factor and reiterating a statement he told police — that a larger oncoming boat caused him to lose control of his vessel.

FWC investigators, however, stressed in their report that no witnesses, including all who were on Pino’s vessel, saw another boat in the channel in the moments leading up to the crash.

“George and Cecilia Pino are devastated by the passing of Lucy and the serious injuries to Katy and others,” their attorney, Andrew Mescolotto wrote. “The Pinos have already pledged their life savings to compensate and provide medical support for everyone affected by this horrible accident. They continue to pray every day for each person and family that was involved.”