Miami Marlins pitcher Jose Fernandez and two other men who perished in a violent boat crash off of South Beach last month all had a strong odor of alcohol on them when their bodies were examined by the medical examiner, according to a search warrant affidavit obtained by the Miami Herald.
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The toxicology tests for the young men are complete but have not been released by state investigators, citing an exemption in the public records law for open criminal investigations. Nor have the autopsies by the Miami-Dade medical examiner been released.
It’s not known what charges, if any, could be brought in the case, since the affidavit states the crime(s) under investigation are boating homicide while intoxicated and vessel homicide.
Under state law, those criminal charges are brought only when there is someone to charge. No other suspects are mentioned in the search warrant, which was signed on September 28, three days after the accident.
The warrant, released by the Miami-Dade state attorney’s office Wednesday, also alleges that investigators found evidence that the driver of the vessel was running at a high rate of speed and with a “recklessness’’ that was “exacerbated by the consumption of alcohol.”
The 24-year-old All-Star died Sept. 25 when his 2016, 32-foot SeaVee named “Kaught Looking” slammed into the Government Cut north jetty before dawn. Two others on the boat with him, Emilio Jesus Macias, 27, and Eduardo Rivero, 25, were also killed.
It’s not yet confirmed that Fernandez, who registered the boat in May, was piloting it.
The crash remains under investigation by the Florida Fish & Wildlife Conservation Commission, which asked prosecutors to draft the warrant in order to search the boat and examine its GPS and two engines.
The affidavit, written by Fish and Wildlife Officer Christina Martin, said that after the bodies were recovered by divers, they were taken for autopsies. The associate medical examiner, she said, told her that “all three bodies, individually, had a strong odor of alcohol emanating from them.’’
A spokesman for the commission initially said that there was no evidence that alcohol was involved in the crash, and that the boat was not owned by Fernandez, but by a “friend of Jose’s’’ who was connected to “several Marlins players.’’
Later, when pressed by the media about those statements, the agency back-pedaled, saying they were erroneous. On Wednesday, the FWC tried to further clarify the initial comments, saying that they “referred to the initial review of the vessel and debris field, which did not yield any evidence of alcohol or drugs on board the vessel.’’
Investigators have not indicated what the three were doing, or where they were going when their boat, headed south, plowed at a high speed at 3 a.m. into the dark rocks that jut east into the ocean from South Pointe Park. But Fernandez was at American Social Bar & Kitchen in Brickell before the crash.
Fish & Wildlife investigators said they found a bar receipt for alcohol in the pocket of one of the men, who is not named. The receipt had a time and date stamp, the affidavit said.
The associate medical examiner who conducted the autopsies said all three men had water in their lungs and trauma consistent with a boat crash, the affidavit noted. However, the cause of death was not mentioned.
Michael Moore, a Miami-based maritime attorney, said that even though there may not be anyone to criminally charge in the case, investigators are likely looking into whether anyone is criminally negligent and, therefore, could be held responsible in a civil lawsuit.
“The main question here is who was driving. Obviously that’s the person most negligent, but even if Fernandez wasn’t driving, he may be negligent by virtue of entrusting someone who was intoxicated to drive the boat, which was his,’’ Moore said.
Marlins President David Samson declined to comment, saying he will wait until the investigation is complete.
The Miami Herald was unsuccessful in reaching Chris Royer, the Fort Lauderdale attorney hired by the families of Rivero and Macias.
Macias and Rivero were both graduates of G. Holmes Braddock Senior High School and both had studied psychology at Florida International University, where Rivero was still a student. Macias, the son of a Miami-Dade police detective, worked at Wells Fargo Advisors. Rivero was an avid boxer and worked for Carnival.
Events were set in motion late that Saturday, Sept. 24, when Fernandez asked several of his teammates whether they wanted to go out on his boat that evening. One of them, outfielder Marcell Ozuna, told him he could not join him and advised Fernandez not to go out. But Fernandez headed for the Cocoplum Yacht Club, where he kept his boat. It’s not clear what happened between leaving the clubhouse that night and getting on his boat. But sometime that evening, friends said, Fernandez allegedly had an argument with his girlfriend, Maria Arias, who is pregnant with his daughter.
About midnight, Rivero, who had only recently met Fernandez, texted a friend to let him know he was going out with Fernandez on his boat. Fernandez was really “stressed out,’’ because of a disagreement with Arias, Rivero told the friend, Will Bernal.
“Try to keep him close to shore,’’ Bernal told Rivero in a series of texts expressing concern that his friend was going out late at night with someone who was potentially unstable.
“Trust me it’s not my time yet,’’ Rivero replied, but he agreed to turn on his phone’s GPS so Bernal could keep an eye on where he was going.
About 12:55 a.m. the two docked at American Social, an upscale bar on the Miami River that offers a wide selection of craft beers. Rivero then called Macias, who lived in a luxury apartment building adjacent to the pub. Macias joined them at the bar shortly thereafter, and the three were seen in photographs posted on social media about 2:30 a.m. It’s not clear exactly when they set out on the SeaVee from the club. Bernal turned in for the evening after seeing on Rivero’s phone they were at the bar.
Where the Kaught Looking and its crew went for the next 35 minutes has not been known. Investigators are looking at the boat’s navigation system and the men’s cell phones. Most of his acquaintances suspect that Fernandez was driving, since he had just met Macias and Rivero’s friends say he had little boating experience.
The boat slammed into the jetty so hard that the crash was heard by a Miami Beach police officer on land, who called fire rescue about 3:20 a.m. A passing Coast Guard vessel discovered the Kaught Looking, which was upside down, its twin engines underwater. Divers descended into the water near the wreckage, recovering all three bodies by 4 a.m.
Experts who have looked at photographs of the Kaught Looking suspect it was going fast. The engine could give clues to the speed of the boat. The vessel’s GPS may indicate its precise route.
The affidavit said the boat had two Garmin GPS devices on board. The engines, two 350 horsepower Mercury Verado outboards, also have a “black box” device, which should provide investigators with further information about the vessel’s speed, the warrant said.
The state Fish & Wildlife agency has formally asked the medical examiner to keep the toxicology report on the three men under wraps until the probe is finished.
“We have received the report from the Miami-Dade County medical examiner’s office. The information contained in their report will provide valuable information to FWC investigators as they conduct our thorough and complete investigation,’’ the agency said in a statement.
David S. Weinstein, a former state and federal prosecutor, reviewed the search warrants. While it’s appropriate that the FWC called the case a “criminal investigation” in order to obtain the search warrant following the crash, there appears to be no basis for it to charge anyone now.
“The only legal grounds to keep the autopsy and toxicology reports from the public is if there is an ongoing criminal case, and it doesn’t get to be ongoing when they have no one to charge,’’ Weinstein said.
“As they admitted in the affidavit, there were only three occupants on the boat, so no matter what they recover from the black box, the GPS or the phones, there is no one they can charge criminally,’’ he said.
Moore said that because Fernandez’s boat is categorized as a pleasure vessel, he would not have been required to have any kind of certification or training to pilot it. Lawyers for the two men who were killed will likely use his training and qualifications in any civil suit that is brought against Fernandez’s estate.
“It certainly helps on the civil side if you are able to say someone who drove the boat had no training or qualifications,’’ Moore said. “But you can have someone with all those things and still be negligent.’’
Fernandez, an avid fisherman whose Instagram account was loaded with pictures and videos of him out on the water with his catch of the day, often went out with J’s Crew, a saltwater sport-fishing team. It’s not known how much experience he had with operating a boat.
After the crash, Fish & Wildlife spokesman Lorenzo Veloz said that he had been on Fernandez’s boat several times, but that Fernandez had not been the captain. State motor vehicle records show that Fernandez registered his ownership of the vehicle in May 2016.
Robert Klepper, a spokesman for FWC, said the agency “has no record of any stops conducted on the vessel involved in the accident, nor any record of citations or warnings on any of the victims. Vessel stops are not normally documented unless a citation or warning is issued for a violation.”
Following the crash, U.S. Sen. Marco Rubio asked the Coast Guard and U.S. Army Corps of Engineers to take a new look at the jetty, which has been the site of other boating accidents. Boaters have said that at high tide the rocks can be submerged and difficult to see, despite the proximity of lighted buoys.
The Coast Guard, which conducted a review of the jetties at Government Cut last year and deemed them safe, said it would undertake another navigational examination of the jetties. Some boaters are urging the Coast Guard to place lights on both the north and south jetties.