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Sobriety checkpoint arrests result in civil rights lawsuit

By Staff | Dec 19, 2009

Three people have filed a joint lawsuit in federal court against the city of Cape Coral, the Cape Coral Police Department and two Cape officers, among others.

Vincent Tallo, Mary Debenedetta and James A. Wilhelm are claiming in the lawsuit, filed Dec. 7 in the U.S. District Court Middle District of Florida, that their civil rights were violated during two separate sobriety checkpoints, and that the “defendants assaulted, battered and abused the processes of law.”

According to court documents, the three are suing for $1 million.

Tallo directed questions to attorney Michelle Erin Berthiaume, who is representing the three in the lawsuit, and a woman who answered the telephone at Wilhelm’s home said Wilhelm was out of town.

Berthiaume could not be reached for comment by press time.

No telephone number is listed for Debenedetta.

The list of defendants include Cape Coral Police Officers Alan Kolak and Edward Schliff, the Cape Coral Police Department, the city of Cape Coral, Fort Myers Police Officer Matthew Mills, the Fort Myers Police Department, the city of Fort Myers, a multi-jurisdictional task force, a bail bonds firm and an attorney.

Connie Barron, spokeswoman for the city of Cape Coral and the Cape Coral Police Department, said she could not discuss the lawsuit.

“It’s our policy not to comment on any pending litigation,” she said.

David Migut, assistant city attorney for the city of Fort Myers, confirmed that the city has been notified of the lawsuit, but he could not speak about it.

“The city of Fort Myers was served on Monday, and we don’t comment on pending litigation,” he said.

Telephone messages left with the Fort Myers Police Department seeking comment were not returned.

According to court documents, on Sept. 4, Tallo encountered a sobriety checkpoint on Country Club Boulevard in Cape Coral after a night of dancing and dining at the American Legion Club with girlfriend Debenedetta and friends.

Tallo, 72, told Mills that he had one beer with dinner. Tallo was instructed to follow Mills’ finger with his eyes while a flashlight was shined in his eyes.

Mills ordered Tallo out of his vehicle and informed him that he was under arrest for DUI. The documents state that Tallo and Debenedetta explained Tallo had recently had an operation on his eyes, then Debenedetta was told by Mills to exit Tallo’s vehicle, which was driven away by another officer.

Tallo participated in field sobriety tests, including standing on one leg and walking and turning on a line. After the exercises, Tallo “was incensed and requested a breath test,” the documents state. He was given the test and blew a 0.00 three times, at which point officers began investigating whether Tallo had drugs in his system.

Tallo and Debenedetta told police that Tallo was not on any medications and had not taken any drugs. According to documents, Tallo was then asked to take a urine test. Kolak analyzed Tallo’s test and reportedly found a presence of drugs.

Tallo was issued a citation and notice to appeal for “DUI – Pending Urine – Checkpoint,” the documents state. Due to Tallo’s vehicle being towed, he and Debenedetta walked to Debenedetta’s house, more than two miles away.

On Oct. 30, Tallo’s DUI charge was nolle prosequi by the state of Florida, meaning it was declined for prosecution.

The court documents also state that on March 13 Wilhelm was stopped by Schliff at a sobriety checkpoint on Cape Coral Parkway following a day of golf and spending the evening with friends. Wilhelm, 62, was asked to provide his license, at which point he dropped papers from his wallet onto the ground.

Schliff asked Wilhelm if he had been drinking and Wilhelm said, “Absolutely not,” the documents state. Schliff ordered Wilhelm to exit his vehicle, then told him to follow a pen light with his eyes as part of a test. Wilhelm then was directed to another officer to take part in field sobriety tests.

The officer asked Wilhelm if he had any concerns about doing the tests, and Wilhelm explained that he had recently had open heart surgery and asked to take a breath or blood test. The officer put Wilhelm through the tests, and he was arrested and charged with DUI, according to the documents.

While waiting to take a breath test, Wilhelm began complaining of severe chest pains to police officers and an EMT was called, the documents state. Wilhelm demanded a blood test to confirm he had no alcohol and drugs in his system, then was taken by ambulance to the Cape Coral Hospital.

At the hospital, Wilhelm again requested a blood test and the test was administered. According to the documents, Wilhelm was taken to the Lee County Jail and posted a $750 bond with a bondsman who allegedly recommended an attorney for the DUI.

The documents allege that “the attorney and bondsman had an illicit agreement for referrals contrary to Florida Law.”

On July 24, the DUI charge against Wilhelm was also nolle prosequi by the state.

Tests results performed by state labs turned up no sign of drug or alcohol impairment by either man.

Judge Charlene E. Honeywell is assigned to the case, which was referred to Magistrate Judge Douglas N. Frazier. The court documents state that Tallo, Debenedetta and Wilhelm are demanding a trial by jury.