A six-person jury found Dan Priotti, 44, guilty of drunk driving in a one-day trial, his third DUI within 10 years, a charge resulting in a felony and the likelihood of jail or prison time when Circuit Judge Terence Perkins sentences Priotti on June 17. Friday’s trial included a motion for a mistrial over a key revelation the jury was not supposed to have heard: Priotti’s prior DUIs. The judge denied the motion, opening the way for a certain appeal.
Priotti, who owns Agua Construction Company, a pool-contracting business in Palm Coast, gained notoriety when he was trespassed from Palm Coast City Hall in 2016 on allegations that city employees considered him hostile and offensive, an action not revoked until last year (after the city revoked a secret “difficult citizens” list), and when Priotti sought an appointment to the county’s Contractor Review Board in 2019. He was not appointed.
He’s had several arrests on minor charges since 2010, never spending more than a few hours in jail each time. The jury was unaware, or was supposed to be unaware, of his criminal history.
A longer stint in jail or prison concerned Perkins because of Priotti’s disability: he is in a wheelchair and has no motor functions below the waist, according to his attorney. He was allowed to stay out on bond until sentencing.
The trial on Friday was notable in several regards: it was the rare case of a DUI charge against a disabled person, where the defense made law enforcement’s handling of Priotti’s disability during field sobriety exercises a central plank in its strategy. The judge gave Priotti a last-minute chance to resolve the case with a plea, all but offering house arrest to avoid jail time, which Priotti rejected. And the introduction of evidence by way of a trooper’s video included brief segments that were supposed to have been kept away from the jury. They were not, giving the defense a significant opening for grounds to appeal.
The prosecution almost always extends defendants settlement offers before trial. But what that offer may have been was unclear before trial, even to Perkins. But the judge still tried hard to get Priotti to go for a settlement, even as the jury was in a room down the hall, waiting to walk in.
“The state wants a prison sentence,” the judge told Priotti–not just jail time. Last October, another local business owner, Terry McManus, whose management company at the time was running the Ocean Palms Golf Club, was sentenced to four years in prison by Circuit Judge Chris France after being found guilty of his third DUI in 10 years. Florida law calls for a minimum of 30 days in jail, and a maximum of five years in prison, for a third DUI in 10 years.
“Here’s what my fear is. And let me be real candid about it,” Perkins continued. “My concern is that if you get convicted, the state is going to be asking to put you in prison, and you have a unique medical need. That would be really difficult to address both in prison, and frankly, in jail, in any incarcerated circumstance. I just think it’s difficult. Can they handle it? Of course they can handle it, they can handle and have handled a lot worse. But is it difficult for you? More difficult than maybe for the next guy? Probably so. And so I want to make sure that we all go into this with our eyes wide open, because the state is going to argue that at some point, I’m going to really have no choice but to put you in jail at least for 30 days and maybe they’re going to be asking for not just jail but prison in this case.”
Perkins, through a plea deal, wanted to “see if we could somehow fashion a community based sanction that keeps you out of jail or prison so that you can pursue treatment with your own doctors, pursue whatever accommodations you need at home that you already have and that you’re used to doing, so that we wouldn’t have to impose an incarcerative sentence.” Community-based sanction would mean house arrest, with allowances to go to work. “So I’m interested in seeing if there is any room for discussion with regard to the state and the defense.”
Five minutes from now, Perkins told Priotti, that avenue would be off the table. It actually took 15 seconds.
“So if we’re going to resolve the case, now’s the time. Do you have any interest in that, Mr. Priotti?” the judge asked him.
“No, sir. I have an interest in the trial,” Priotti replied.
“Okay. We’re ready to bring in our jury? Let’s bring them in.”
On June 7, 2019, Priotti was clocked driving at 99 miles per hour in a 70 mph zone on I-95 late that night. He was pulled over by a Florida Highway Patrol trooper, later joined by another. The trooper “could immediately smell a very strong odor of alcohol emitting from the cab of this truck,” the prosecutor said, while Priotti had “red bloodshot glassy eyes and he had a flush face.” Priotti said he had two or three tequila drinks around 9 p.m. that night. Since Priotti is in a wheelchair, he performed an altered version of the field sobriety exercises. The trooper determined Priotti to be impaired, and arrested him. Priotti refused to take a breath analysis. A dashcam video recorded the incident.
The prosecutor called it a “straightforward case” of driving impaired.
The defense focused on Priotti’s disability. “To know if his normal faculties were impaired, we have to know what normal faculties are right,” McKenna Mundy told the jury in her opening argument. “What are normal faculties? There’s walking, there’s talking, there’s balance, there’s cognitive ability, there’s depth perception, and things like that. Now some of you might have noticed that Mr. Priotti is wheelchair-bound. You may or may not know that he only has function and control from here up, anything down below–no muscle control, no control of bodily functions. I’m not saying that to make you feel bad for him or because I want you to pity him. I say that because his normal faculties are not the same as my normal faculties, they’re not the same as Mr. [Aaron] Delgado’s, likely the state attorney’s, likely many of yours. He has different faculties, and the officers that responded to that DUI investigation that evening. Just weren’t prepared to handle that situation.” (Delgado is the lead defense attorney.)
Priotti, the defense argued, had been pulled over for speeding–not weaving in and out of lanes, which was not observed or testified to. He acknowledged having some drinks earlier that evening, as did his passenger, explaining the odor in the truck, the attorney said. “Then the officers wanted him to perform FSEs,” Mundy said, using the acronym for field sobriety exercises. “That’s where they get stuck. They have no idea how to do FSEs for someone in the wheelchair.”
The cops are heard saying so. “I’m not saying they’re bad officers or it’s their fault that they weren’t prepared to do this on someone that is wheelchair bound,” Mundy said. “Maybe, maybe not. But it’s certainly not Mr. Priotti’s fault that they weren’t prepared to handle his situation. And he can’t be held accountable for their lack of training or experience in that area.” In contrast, Priotti, she said, was able to maneuver his way “without any flaw” out of the cab of the truck and into his wheelchair, conducting a maneuver that would prove he had all the necessary faculties to be in control of his capacities.
That’s what Priotti’s attorneys rested their defense on: his ability to place himself into a wheelchair, from his truck, “without hesitation.” It was a fallible foundation on which to counter two troopers’ observations, Priotti’s refusal to take a breath test and his speeding nearly 30 miles per hour over the speed limit, and in the end the jury didn’t buy it.
That may prove immaterial if the defense makes its case on appeal that information the jury was not supposed to have heard, like Priotti’s prior drunk driving convictions, was nevertheless in the video recording the jury watched. Delgado, the defense attorney, brought up the issue after the playing of a lengthy video, once the jury was removed from the courtroom.
“There are several times on there where he talks about his prior DUIs,” Delgado told the judge. “We were told that would be redacted. I guess I can say I should have watched all 43 minutes. I just thought that it would be redacted per our agreement. So I may have to move for a mistrial based on the jury having heard those statements from my client, and if the court denies the mistrial, then I think we need to have the video edited so that if it does go back to the jury, they can’t watch that testimony.”
The defense said Priotti talked about his prior convictions in a “very mumbled” way and during “crosstalk,” making it unlikely that the jury heard it. But in the video, Priotti is clearly heard telling the trooper, “I’ve had a DUI before.”
The prosecution conceded that instance. The rules of a fair trial are such that a defendant’s prior convictions are not allowed to be discussed or alluded to, so as not to prejudice the jury regarding the charge in play. “Unfortunately, we missed it, I don’t know how, but I certainly caught it when we played that video” Assistant State Attorney Mike Willard said. “I would argue, your honor, again, this was unintentional, it certainly wasn’t a focus.” He proposed showing the video to the jury again, properly redacted. “I would argue that it is not material, it was not something that was focused on, it’s an isolated event.”
Delgado said he would not presume to put himself in the jurors’ position as to what they did and did not hear. “It’s very prejudicial about being probative,” he said. “I don’t think that we shouldn’t have to guess as to the impact it would have on the jury. It’s just classically inadmissible evidence. It should have not been included. And I’m not attributing malice or intent to the state. These things happen.” But the fact that it happened was a serious breach, Delgado argued–and moved for a mistrial.
Perkins denied it. “Even listening pretty closely to it, it doesn’t come across as the pejorative, you know, ‘I got a history of this kind of thing,’” Perkins said. “ It didn’t come across as in any way inappropriate or as an admission in that respect. I also note that it wasn’t elicited by anything any of the officers said under any circumstance. This is just something that was said by your client under the circumstances. That doesn’t make it admissible, I understand that part. But at the end of the day, I find it harmless. That being said, because I don’t mean to presuppose what the jury heard, but I would imagine that none of them heard that.”
Perkins offered Delgado “curative instructions,” meaning that the judge would let the jury know that what they heard should not have been introduced as part of the evidence. But Perkins said doing so would only focus the jury on the very element it was not supposed to have heard. So he asked that there be no such instruction. But Delgado wanted the video properly redacted, just in case the jury were to ask to watch it again during deliberations.
The jury did no such thing. It deliberated less than 35 minutes, suggesting that for its six members, it was, as the defense had suggested in its opening argument, a straightforward case.
Disclosure: Aaron Delgado is a member of the FlaglerLive Board of Directors. He was not interviewed, on background or for the record, for this article or in connection with any previous hearings or steps in the case.