Make no mistake about it – Philip Varsam was drinking at a New Year’s Eve party the night he hit Alkiva Douglas as Douglas road his bicycle along the 6700 block of Northwest Ninth Avenue in Fort Lauderdale. We know this because Varsam admitted it to police. We also know it because police smelled the odor of alcohol emanating from his breath as they spoke.
According to Supervising Assistant State Attorney Ross Weiner, who is a very experienced prosecutor, passengers in Varsam’s 2015 Lexus stated that they had been drinking at three bars in Palm Beach before the crash. THREE!
This information begs a very important question that I am sure is on Alkiva Douglas’s family’s mind: Will Philip Varsam go to prison for DUI?
This article will break this case down piece by piece to explain how Traffic Homicide cases are investigated. We will explain what will happen in court and why DUI may or may not be charged. We will also discuss the role civil liability for Wrongful Death and punitive damages will play in this case.
This is a case with a lot of moving parts that touches on both criminal and civil causes of action. Continue reading for the full story.
The Traffic Homicide Investigation
Figuring out what happened and who is responsible in any traffic homicide case requires police investigators who use some very specific true and tried methods. First and foremost is to secure the scene and get medical attention to the injured. As it relates to Alkiva Douglas, this meant emergency transport to a trauma center. One of the factors that makes this case so aggravated is the fact that Douglas passed days later as opposed to on scene.
Next, police investigators will begin the task of photographing evidence, sketching the scene of the accident, and interviewing eye witnesses. Police will also look for surveillance cameras in the vicinity that may have captured all or some of the event on video.
After evidence is identified, police will determine where the initial point of impact was. In other words, where did Alkiva Douglas’ bicycle and Philip Varsam’s Lexus first make contact? This is extremely important because the location of first impact makes a huge difference when it comes to criminal and civil liability.
For example, was Douglas struck in the bicycle lane, in the middle of the street, or on the sidewalk? Knowing the initial point of impact helps investigators determine fault.
In this case, police determined that Alkiva Douglas was rear ended by Varsam. Under Florida law, there is a presumption that the driver who did the rear ending is the responsible party.
Hit and Run Complications
The hit and run nature of this accident makes it different. Under normal circumstances, when a driver is involved in an accident causing death or serious bodily injury, as this case clearly does, Florida law states that police can compel a mandatory blood draw from the driver. This information is used to determine if the driver was DUI at the time of the accident.
However, it is VERY common for people to flee accidents when they know they have been drinking – especially on New Year’s Eve. Frankly, such drivers panic and simply take off.
Because Varsam fled the scene, police probably never got a blood draw – and if they did, it may not have been timely. For this reason, we may never know what was or was not in Varsam’s blood at the time of the crash.
This is also the likely reason why he has not been charged with DUI Manslaughter – but that may change.
Possible DUI Manslaughter Charges
When it comes to DUI litigation, prosecutors sometimes get boxed in by breath tests, blood tests, and other scientific evidence. In the absence of a blood test in this case, prosecutors may feel they have stronger hit and run case than they do a DUI Manslaughter. This is especially so considering that Philip Varsam admitted to hitting Alkiva Douglas and leaving the scene.
What’s better than a confession, right?
However, the key DUI evidence also comes from a confession.
Specifically, news agencies report that Varsam confessed to drinking at a party. Additionally, his passenger stated that they drank at three bars in West Palm Beach prior to the accident.
According to Frank McGarry, a private investigator in Fort Lauderdale who is also a retired Traffic Homicide Supervisor from the Hollywood Police Department, the investigation does not stop with the arrest of the suspect.
Mr. McGarry tells Courthouse Insider, “Normally, during these types of investigations, the charges are upgraded upon the victim’s death. The traffic homicide investigation does not just stop. Follow up interviews with people who saw the suspect drinking at a bar or party, and how much he consumed, are normal investigative follow ups.”
I myself am a former supervisor from the DUI unit of the Broward County State Attorney’s Office and can tell you Mr. McGarry is spot on correct. In fact, when I prosecuted DUI accident cases, I would always prefer an instance where witnesses can take the stand and testify about how much someone drank at three bars and a party and how sloppy drunk they were versus any boring blood test.
Make no mistake, blood tests make great evidence. Jurors love forensic evidence and anything where a person in a lab coat gives an opinion. However, blood tests are not living things. They are boring reports on paper explained by even more boring experts.
Eye witnesses are alive! They have energy. When questioned the right way in court, they are much harder hitting.
For that reason, I strongly suspect prosecutors may also charge Varsam with DUI Manslaughter.
What will happen in Court?
Getting arrested is just the first step in any criminal prosecution. From there, Traffic Homicide investigators will begin working closely with prosecutors as they assemble case and make some final decisions about what charges to file. Up filing this case from Leaving the Scene of an Accident with Injury to one with Death was an easy quick fix. The bigger question is the one concerning DUI – which will require some follow up investigating by police.
If I was the assigned prosecutor, I would have my Traffic Homicide detectives ascertain the names and addresses of the bars where Varsam drank. With that information, I would issue subpoenas to see if we could obtain the credit card receipts, if any, from Varsam’s bar tab. Hopefully it is itemized. Same goes for his passenger because the passenger may have paid for both.
I would then subpoena the passenger to give me a sworn statement. This person is clearly not a target of any investigation and has no criminal or civil liability for Varsam’s actions. Moreover, with a subpoena, his/her testimony is compelled and therefore includes a measure of immunity.
I would also subpoena every bar tender and waitress at those bars to see what they could tell me. Investigators would also be sent to talk to people who attended the NYE party. Lets see what everyone has to say when they find out someone was killed and this is a serious investigation.
Hopefully, these efforts and those of the Traffic Homicide investigators will pay off and yield enough evidence to charge Varsam with the real crime we all suspect he committed: DUI Manslaughter.
Once prosecutors make a final decision about charges, the Clerk of Courts will set a hearing called “arraignment”. The purpose of this hearing is to advise Varsam of the charges he is facing and the penalties. It is also to ask him how he pleads: Guilty, Not Guilty, or No Contest. You can rest assured he will have retained a lawyer by that point in time and will be pleading Not Guilty.
From there, the presiding judge will set regular hearings called “Calendar Call” during which the prosecution and the Defense appear to advise the Court about being ready for trial. Calendar Calls will be scheduled every six weeks or so to enable the judge to keep tabs on the litigation of the case. During this time, the Defense team will investigate their case by deposing prosecution witnesses, consulting with experts, and by doing all the things that criminal defense attorneys do to provide their clients with due process.
For instance, if police failed to properly advise Varsam of his rights, any confessions he gave as a result may be excluded from trial. Additionally, any statements he made during the accident investigation may also be excluded, pursuant to Florida’s “Accident Report Privilege”.
The art of criminal defense happens when a skilled trial attorney takes a seemingly obvious “Guilty” case and turns it upside down using the law, the facts, the rules of evidence, and the rules of procedure.
Ultimately however, this case will either proceed to trial or resolve itself with a plea bargain. Considering the massive exposure Varsam has to prison time, he will likely accept a plea bargain – most criminal defendants do. On the other hand, prosecutors are surely not going to resolve this case for anything less than a substantial prison sentence, unless Alkiva Douglas’ family wishes otherwise, or alternatively, Defense lawyers do make the case fall apart for prosecutors due to a lack of evidence or a conflict in the evidence.
At this stage, it would be folly to assume the best case scenario or the worst case scenario for either side. A matter like this has to play out in the courts.
Civil Liability for Wrongful Death
As a trial lawyer, my rule has always been to analyze a case from all sides. Like a doctor treating a patient, an attorney has to remain objective to give the best counsel to those he/she represents. In this case, that means being cognizant of the civil liability that Varsam also has.
Do you remember the O.J. Simpson trial? Of course you do!
Do you recall how he was prosecuted in criminal court and won, but was later sued in civil court and lost?
This is the domain of civil liability.
Aside from allegedly committing a crime for failing to remain on scene and for potentially driving under the influence, Varsam is also civilly liable for causing the Wrongful Death of Alkiva Douglas.
According to Florida’s Wrongful Death Act, certain survivors of a person killed wrongfully can hold the offender responsible in civil court. This is exactly what the families of Nicole Brown and Ron Goldman did.
Remember – the law covers all aspects and you have to look at an event that gives rise to liability from all angles. In this case, my opinion is that Philip Varsam has tremendous liability in both criminal and civil capacities.
I base this on my experience both as a criminal lawyer and as a personal injury attorney. Handling both for victims of crime means I have to see a case from all angles. Such as victims of sexual battery. To provide the best counsel possible, we have to assess criminal liability, criminal defenses, as well as civil liability and civil defenses.
This leads me to the issue of punitive damages. As a personal injury attorney, I can tell you without question, without fail, and without any doubt, that punitive damages are due when a person is DUI and kills another person as a result. Under Florida law, “A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.”
Juries have routinely found DUI Manslaughter to fall within these categories and the appellate courts have upheld such findings.
However, from a practical perspective, obtaining punitive damages has two components.
First, is the question of evidence. In other words, do the facts of the case warrant punitive damages as required by law? Again, sufficient evidence proving DUI Manslaughter would satisfy that requirement.
Second, is the question of pragmatism. While a case may have a winning punitive damages claim, the real issue falls on the Defendant’s ability to pay them. When dealing with corporate defendants, the money is usually there in the form of large insurance policies or other corporate assets. However, when it comes to individual liability, it all depends on the defendant’s assets.
Regardless, a punitive damages win often times provides grieving survivors with a sense of justice for their loved ones – even if it is never actually paid. Sometimes, people obtain closure through accountability. It all depends.
First and foremost, my condolences go out to Alkiva Douglas’ family. This case is an other sad reminder of the silent killer that exists on our roadways. I say silent, because unless you follow traffic homicides, as I do for professional reasons, you have no clue how common they are.
Second, or I should say simultaneously, Traffic Homicide investigators are working diligently to collect all available evidence – especially evidence that can be used to build a DUI Manslaughter case. From there, prosecutors will make a final case filing decision and the matter will proceed to court.
Third, any potential civil action must commence immediately. They key to civil justice as Plaintiff is to act swiftly and decisively. I expect a quick and favorable resolution on that front.
Fourth is litigation in the criminal court. As this case is investigated and defended by Varsam’s lawyers, we may see motions being filed to preserve evidence, to suppress evidence, and others. Witnesses will be deposed and I am sure Varsam will submit to an alcohol/substance abuse evaluation for potential use later on to help mitigate any possible sentence.
From there, we will see. The criminal case will either end with a plea bargain or a trial – those are the only two options.
Finally, I would like to reiterate what a terrible tragedy this case is and to give my condolences to the family. Every New Year’s Eve we hear of another case like this one. In fact, it is why I don’t go out on New Years.
As for those of you who think its ok to go to a NYE party, then hit three bars and drive home – my advice is to take an Uber and avoid the legal education that will follow courtesy of the Court system.
Question? Comment? Contact Us!
Have a question about wrongful death or criminal defense? Call us today for a free consultation.