By Dan Christensen, FloridaBulldog.org
May was a very good month for Roy Livingston Virgin.
On May 4, a three-person majority of the Miramar City Commission named Virgin interim city manager after dumping his predecessor just six months into the job. Three weeks later, those commissioners dropped the interim designation and awarded Virgin a five-year contract with a starting annual salary of $270,000, plus cushy benefits.
In the meantime, and in violation of its own written rules, the office of Broward State Attorney Harold Pryor OK’d Virgin’s acceptance into its new Misdemeanor Diversion Program for first-time DUI offenders.
The state’s May 18 decision makes Virgin eligible, should he successfully complete the program, to dodge the consequences of his arrest three years ago by Miramar police for DUI and speeding by instead pleading guilty to a lesser charge of reckless driving. Those in the program get the added benefit of having adjudication withheld and no points assessed on their driving records.
State Attorney Pryor’s written rules for his newly established 1st Time DUI Offender Program, announced Feb. 23 and started on April 4, should have precluded Virgin from admittance: “The Defendant must be entered into the program within 45 days of the arraignment, prior to any requests for discovery. Failure by a Defendant/Defense Counsel to abide by these rules will result in disqualification from this program.” (Emphasis by SAO).
Virgin was arraigned, pleaded not guilty and sought and received discovery from the state in December 2019, court records show. The exact wording above is contained on both the original letterhead memo that announced the program, as well as a revised memo about the program issued April 11.
It is also nearly identical to how the Palm Beach State Attorney’s Office describes its long-established DUI diversion program.
DUI PROGRAM WORDING INOPERATIVE
But Pryor’s spokeswoman, Paula McMahon, indicated Friday that Broward’s wording is now inoperative.
“Under the introductory terms, Harold agreed that it would be retroactive and that the conditions regarding 45 days and discovery would be waived for applicants with open cases. Supervisors review those retroactive cases,” McMahon wrote in an email.
Why was the “discovery” condition included in the first place? “Everyone who has an ongoing case that filed for discovery, determined it’s a loser, would request to be admitted into the program,” said veteran Hollywood DUI attorney Alan S. Bernstein. “Something doesn’t seem kosher here.”
Told of McMahon’s statement, Bernstein, who co-wrote the legal reference book Florida DUI Defense: The Law and Practice, said, “What you just told me is new to me. I was never notified of it, and it’s never been published. It’s a complete 180. I have quite a few clients who fit that requirement.
“And how many times are they gonna change the program? What about the people from March that pled out? I guess they’re out of luck.”
McMahon, however, said the “introductory retroactive option” was discussed in advance with judges, prosecutors “and the defense bar.”
“When the diversion program was being finalized, Harold agreed with the community feedback that it should be retroactive initially as a matter of fairness,” McMahon said. “The head of the unit told me a large number of the people who have entered the diversion program did so under the retroactive provision.”
VIRGIN CASE AND POLITICS?
Court papers acknowledging Virgin’s acceptance into the DUI diversion program don’t explain why he was chosen or who selected him. “All cases are evaluated on an individual, fact-specific basis,” says the program’s rules sheet. “A defendant’s eligibility is determined at the sole discretion of the State Attorney’s Office and may be based on relevant factors not mentioned above.”
But there is also a political line that runs through the case, from the three Miramar commissioners who voted last month to hire City Manager Virgin to State Attorney Pryor.
The trio – Vice Mayor Yvette Colbourne and Commissioners Alexandra Davis and Maxwell Chambers – were among Pryor’s earliest announced supporters in his successful 2020 run to succeed longtime State Attorney Mike Satz.
Two weeks after Pryor declared his candidacy on Aug. 5, 2019, his campaign touted endorsements received from 10 individuals – including Colbourne, Davis and Chambers. Colbourne and Davis also contributed modestly to Pryor’s campaign.
Ten months later, Pryor bragged again about the endorsements he’d received from Colbourne, Davis and Chambers on the Sun-Sentinel’s candidate questionnaire.
The three commissioners, who comprise the dominant voting block on Miramar’s five-member commission, axed City Manager Whittingham Gordon during his six-month evaluation and immediately replaced him with Virgin. They said they’d heard too many complaints about Gordon’s style from workers across the city, yet still awarded him a handsome going away package of $270,000 in severance tied to a non-disparagement agreement.
Sources who asked to remain anonymous said Gordon was let go because he wasn’t as obedient to their wishes as they had hoped.
VIRGIN PULLED OVER
Virgin, 56, was stopped the night of Nov. 22, 2019 by Officer Kristina Luna who spotted him traveling north on S. University Drive at about 85 miles an hour. The officer flipped on her flashing lights, “pressed my sirens multiple times” and followed Virgin for about 1.5 miles until he stopped across from North Perry Airport in Pembroke Pines.
Luna’s report says she asked Virgin for his license, registration and proof of insurance. Virgin presented his City of Miramar ID card. Luna asked again, and Virgin then retrieved his license.
“I asked for the rest of the documents and he spent a few seconds trying to put cards back into his wallet. His movements were slow and lethargic. He seemed to have difficulty placing the cars in the wallet. I observed Virgin’s eyes to be red and glassy. While speaking with him, I could detect an odor of an alcoholic beverage on his breath. I asked if he had anything to drink.
He stared and smiled at me. I then asked him how much he had to drink. He initially stated one. He then said that he had a beer or two,” Luna’s report says.
Luna had Virgin get out of his car and asked again what he had to drink. “He said that he had two rums before leaving work,” the report says.
After administering a roadside sobriety test, Luna arrested him. Virgin later submitted to a Broward Sheriff’s breath test in which he blew .150 and .153. He was cited for driving under the influence (DUI) and DUI with a blood alcohol content greater than .15 and speeding.
Two weeks later, in Broward County Court, Virgin pleaded not guilty, demanded a jury trial and had his lawyer request so-called “discovery” information from the state, seeking to learn about the evidence against him. The state provided discovery in late December 2019, identifying a trio of Miramar police officer/witnesses against him. Officer Luna is now a Broward Sheriff’s deputy.
The case has dragged on ever since, due to COVID delays and repeated defense efforts to suppress all evidence against Virgin. The state opposed suppression, and the court did not rule on Virgin’s motion before he went into the program.
Today, as Miramar city manager, Virgin indirectly supervises two of the officer/witnesses against him.
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