A veteran airboat captain had a high level of marijuana in his blood when his boat flipped in the Everglades, hurling tourists into the swamp and drowning a recent University of Miami graduate pinned under the craft.
But nearly a year after the crash, prosecutors this week ruled out charging Steve George Gagne with any crime, including boating under the influence.
The reason: Witnesses said Gagne showed no signs of being high before the crash that killed 22-year-old Elizabeth Goldenberg, according to a newly released report by the Miami-Dade State Attorney’s Office. But the concentration of THC, the active compound in marijuana, in his blood was nearly triple what would have gotten him arrested in states where marijuana use is legal such as Colorado or Washington.
Florida has no such law and the case underscores the unsettled standards surrounding use of marijuana. Even as more states legalize marijuana for recreational or medical use, there is no consensus — in the law, science or medicine — on how best to measure whether someone is stoned while behind the wheel of a boat or a car.
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“There needs to be more precise testing and national standards,” said Sally Matson, a victim advocate for Miami’s Mothers Against Drunk Driving. “Marijuana is here to stay. It's becoming legalized. And as with alcohol, people will become impaired and get behind the wheel.”
Dr. David Goldenberg, Elizabeth’s father, said the family is “extraordinarily disappointed” that Florida law does not allow for charges to be filed against the airboat captain.
“This individual was obviously boating under the influence and he killed my kid — the day after she graduated,” he said. “He's not going to be punished. Really? Where is the justice?”
The death of Elizabeth Goldenberg put a spotlight on Florida’s lightly regulated industry of airboats, iconic flat-bottomed crafts with powerful airplane-like engines that wow tourists on rides through the Everglades. The May 2017 accident has led to a push for a law that would increase regulations on airboat operators, a measure that enjoys support is still under consideration.
Gagne, who is hospitalized and recovering from surgery for bone disease, wouldn’t say if he had been smoking when reached by the Miami Herald. But Gagne insisted he did nothing wrong and remains tormented by Goldenberg’s death.
“It was a freak accident. I've been driving airboats for more than 43 years. Over 20,000 tours and never had an incident,” said Gagne, 63. “This was just a very sad accident.”
For prosecutors, the criminal investigation into Gagne was a frustrating one.
Goldenberg, known to family and friends as Ellie, hailed from Pennsylvania and graduated last year with honors from the University of Miami’s musical theater program. On May 13, the day after she walked the stage to receive her diploma, she joined her sister and their parents at the River of Grass Adventures airboat ride, which embarked about 12 miles west of Krome Avenue off Tamiami Trail.
For the first 10 to 15 minutes, Gagne steered the airboat through the Everglades, stopping to give talks on the history of the natural wonder and the wildlife. As the airboat accelerated, it approached another airboat that had broken down. Gagne’s airboat attempted to “navigate around” the other boat but rolled over — the passengers were ejected.
David Goldenberg found himself trapped under the airboat, his legs caught underneath. His wife Renee Goldenberg was flung about 20 feet. Elizabeth’s sister Dana was pinned under the airboat, but escaped to help in the rescue efforts despite severe burns caused by the engine.
“Elizabeth was pinned by the cage of the vessel in a face down position in the shallow marsh, where she was unable to breathe for approximately 10 minutes,” according to a final report on the case released this week. Despite the “valiant efforts” by the family to lift the airboat, by the time help came it was too late. Renee Goldenberg, herself a physician, tried performing CPR but could not resuscitate her daughter.
The Florida Fish and Wildlife Conservation Commission immediately launched an investigation.
To investigators, Gagne admitted his mistake was slowing down the nimble craft too much while trying to make the sharp 90-degree turn around the disabled airboat. To prove vehicular homicide, prosecutors would have needed to show Gagne was piloting “recklessly.” But investigators did not believe Gagne was going recklessly fast — and in fact, he slowed down in an attempt to be careful while making the turn.
Prosecutors also considered a charge of boating under the influence manslaughter.
Gagne’s blood tests showed high levels of THC, according to investigative files, but proving that Gagne was impaired by marijuana is totally different than proving someone is driving or boating under the influence of booze.
In Florida and across the nation, laws and courts have long accepted scientific research that blood-alcohol level of .08 is the correct threshold for being legally drunk. If authorities can prove a motorist exceeds that concentration, they can move forward with DUI charges. Impaired drivers might not always have slurred speech, bloodshot eyes and difficulty in walking.
But marijuana is broken down in the body primarily through fat, not blood, making it challenging to calculate when it was used and pinpoint when impairment was the worst. Generally, police officers need to be specially trained to spot the more subtle clues of marijuana impairment, such as slower reaction times, an elevated pulse, and bloodshot or dilated eyes.
“The lay person wants to see a falling-down drunk, but you’re going to have much more mental impairment with marijuana,” said H. Chip Walls, a Miami toxicologist who used to head the University of Miami’s toxicology lab.
For someone who hardly ever smokes weed, THC levels dissipate from the blood quickly after inhalation — which makes speed critical for cops to get a blood sample. Chronic smokers may have high THC levels built up in their brain, which releases it back into the blood even if they haven’t smoked in days, experts say.
“If you have been a regular cannabis user for a period of time and you stop using for three or four weeks, you can still test positive for THC when clearly you’re not impaired,” said David Gorelick, a University of Maryland psychiatrist who has studied the effects of the drug.
But research has shown that even some chronic smokers who have laid off the herb could still have their motor skills impaired, even up to three weeks.
“There is a segment of chronic users that have such a large amount of THC in their body and brain and it can continue to affect them even after sustained abstinence,” said Marilyn Huestis, a retired toxicologist with the National Institute on Drug Abuse who has studied marijuana impairment extensively.
Recreational marijuana remains illegal in Florida. Medical marijuana is legal in the state, which allows patients to use cannabis pills, oils, edibles and “vape” pens but bans smoking, which is believed to deliver higher levels of THC.
So many variables mean scientists — let alone lawmakers — can’t agree on one standard number of a THC level to prove someone is operating a vehicle while high.
“You can’t find a number. People say we need more research and we can come up with a number,” Huestis said. “We’ve done the research. There is no number that separates between the occasional user and chronic users.”
That hasn’t stopped some states from trying. In a dozen states, it is illegal to drive with any trace of THC at all in your system. Six other states specify a number of nanograms per milliliter of THC — usually two or five.
But Florida law doesn’t specify an amount of THC someone must have in their body to be “under the influence” while boating or driving. In 2015 and 2016, lawmakers proposed bills that would have set five nanograms as the threshold for driving or boating while intoxicated — but each bill went nowhere
Gagne had 13 nanograms of THC in his blood.
He most likely had smoked within the past 24 hours, University of Miami toxicologist Lisa Reidy concluded, according to the prosecutor’s report. But she could not definitely say that Gagne’s “normal faculties” were impaired that day — and neither could prosecutors.
None of the passengers on the boat, including her medically-trained parents, noticed anything strange about Gagne before the ill-fated trip. “The consensus is that at no time was there anything strange about his speech pattern, his movements, or seemingly his ability to operate the vessel,” Miami-Dade prosecutor Laura Cespedes wrote in her final report.
David Goldenberg, her father, said in hindsight, the boat captain “was loaded and obviously doing it a very long time because it didn't affect his outward appearance.
“Had I known this individual was inebriated, do you think I would have taken my family on a boat with him?” he told the Miami Herald.
FWC officers on the scene — including one trained to recognize signs of impairment by drugs — did not see anything amiss. There was no probable cause for a search warrant for Gagne’s blood; however, he agreed to give a blood sample.
Gagne was seen after the crash with bloodshot eyes, but that may well have been from the “shock and coping with the loss of a life on his vessel.” “The subject was observed by many to be pacing, crying and remorseful after the crash,” the report said.
“This was a tragic accident ending in the heartbreaking loss of an incredible human being, Elizabeth Goldenberg,” prosecutor Cespedes wrote in her report. “But due to all of the elements required by the governing statutes, we cannot file felony charges of vessel homicide or boating under influence homicide.”