Florida Keys

An 80-year-old was killed in a DUI. Here's why the man arrested isn't going to prison

A 2016 DUI crash in Key Largo.
A 2016 DUI crash in Key Largo. dgoodhue@flkeysnews.com

Cesar Gomez was drunk and high on pills when he crashed his Volkswagen Jetta into a Lexus driven by an expectant mother with her 12-year-old stepdaughter in the passenger's seat.

He kept going and crashed into a Cadillac less than a mile down U.S. 1 in Key Largo, killing the 80-year-old driver.

But prosecutors say conflicting testimony taken from several Florida Highway Patrol troopers on the scene of the July 22, 2016, crash, coupled with established case law, forced them to accept a plea deal that gave Gomez a lighter sentence. Prosecutors say they did that to ensure Gomez was found guilty of a felony charge for his role in Luis Bolivar's death.

Otherwise, prosecutors from the Monroe County State Attorney's Office contended, they risked Gomez walking away with a misdemeanor driving under the influence conviction because an appeals court would likely overturn a jury conviction on DUI manslaughter, given the conflicting testimony of the troopers.

"This all fell apart within the last couple of months," Assistant State Attorney Gail Conolly said this week.

Gomez, 27, pleaded guilty April 10 to DUI manslaughter, DUI causing serious bodily injury, two counts of DUI causing injury to property while having a blood alcohol level of .15 or higher and leaving the scene of an accident with injury.

Monroe County Circuit Judge Luis Garcia sentenced Gomez to one year time served, five years' probation and a lifetime revocation of his driver's license.

"Cesar has accepted full responsibility for his actions and words cannot express how sorry he is for the pain he's caused all the family members impacted," his attorney Patrick Trese said Tuesday. "We believe the outcome was fair and just based upon applicable law and the evidence that exists in this case."

The deal and sentence angered many in the community, including Luis Bolivar's son, Alex Bolivar, 44, who calls it "a slap in the face." He is not only mourning his father, but is caring for his mother, Clara Bolivar, 79, who was riding next to her husband that evening and was left with brain damage from the crash. She needs the assistance of nurses and family members to function.

Gomez's blood alcohol level that evening was more than twice the legal limit, and his bloodstream contained alprazolam, or Xanax.

Conolly and Monroe County State Attorney Dennis Ward said they were extremely reluctant to accept the terms of the deal, but they said they had no choice but to approve the plea bargain. Garcia, who has a history of handing down tough sentences, was angered by it as well, saying during the plea hearing that Gomez belongs in prison.

But authorities say there wasn't enough evidence showing Gomez caused or contributed to the second crash in the southbound lanes of U.S. 1 at mile marker 98. In fact, a diagram sketched by the first FHP trooper at the scene indicated that the elder Bolivar drove from a side road or driveway onto U.S. 1 directly in front of Gomez's Jetta, which was traveling below the posted 45 mph speed limit.

Had this not been a hit-and-run and DUI case, blame for the crash likely would have fallen with Luis Bolivar, not Gomez, from the beginning, Conolly said.

In Florida, even if a driver is drunk, if he or she is involved in a car crash caused by another driver, and that driver is killed or injured, the most the drunk driver can be charged with is driving under the influence, which, if it is a first offense, is a misdemeanor.

"We felt very fortunate to at least be able to hold this guy accountable," Conolly said.

Trese filed a motion to dismiss the DUI manslaughter charge on March 6, stating no witnesses saw Gomez's car strike Bolivar's 2016 Cadillac. Additionally, he contended that no video footage existed capturing the crash, and that Gomez's Jetta was legally in the left lane and he was driving under the speed limit.

Trese also stated in the motion that Luis Bolivar may have had a heart episode that caused him to drive his car into the path of Gomez's vehicle.

Prosecutors disagreed with the motion, but once Trese started taking depositions of the troopers. they realized Gomez's case could be overturned on appeal.

The problems began when Trese deposed FHP Sgt. Pedro Reinoso in December, five months after Cpl. Christine Gracey, the lead traffic homicide investigator in the case, was deposed.

"The troopers impeach each other," Conolly said.

Reinoso testified in the deposition that Bolivar may have caused the crash that killed him.

Asked by Trese whether "it is possible the Cadillac could have caused the accident," Reinoso replied, "Yeah, well, based on what vehicles on U.S. 1 have right of way over vehicles off U.S. 1, yes."

On Aug. 14, 2017, eight months after Gracey obtained an arrest warrant for Gomez, Trese took her deposition. He asked her repeatedly if "vehicle 1," Gomez's Jetta, was "in what appears to be a lawful area of the roadway."

Gracey responded several times "no." She based her finding on reports that Gomez just moments earlier hit the Lexus and fled. If he were anywhere other than the scene of the original crash rendering aid to the injured, he was in the wrong place legally and in a position to cause further harm, or worse, Gracey said.

"Because Vehicle 1, or the Jetta, was involved in a crash prior to and never should have left the scene of that crash," Gracey told Trese. "So, V1 never should have been in that travel lane. [He] Should have stayed on scene with the original crash. So, that's why I say no. "

While that may sound reasonable, Conolly said "that doesn't get us there legally per case law. Had he not left the scene of the first accident, he would not have been there at the second accident. That doesn't cut it."

"This isn't would have, could have, should have," Conolly said. "It's what the evidence shows."

In Gracey's warrant for Gomez's arrest, she said that at about 5:15 p.m., July 22, 2016, Gomez was driving a 2012 Volkswagen Jetta west on Fisherman's Trail around mile marker 98. Melanie Link, 33, of Tavernier was driving south on U.S. 1 in a 2004 Lexus in the inside lane.

She was turning left onto Fisherman's Trail when Gomez tried to pull into U.S. 1 and struck her car. Gomez didn't stop and headed south on U.S. 1. As he did, his car struck Bolivar’s Cadillac. The Cadillac veered to the right, then careened into the Moose Lodge parking lot. He struck a utility pole and a parked trailer.

Bolivar was taken to Mariners Hospital in Tavernier, where he was pronounced dead. Gomez, caught, was airlifted to Ryder Trauma Center in Miami.

Link and her passenger, who was 12 at the time, were taken to Mariners. Link was seven weeks pregnant and suffered cramping and spot bleeding. The 12-year-old was treated for non-life-threatening neck and back injuries.

Gomez refused to provide a blood sample when he was at Ryder, but Gracey obtained a warrant and was able to get a sample from the hospital.

But, the probable cause report with the warrant does not state where Bolivar's car was before it entered U.S. 1. According to deposition taken by Trese from Reinoso and a deposition of Trooper Mauricio Villanueva, the Cadillac entered the highway from the west.

"Yes, it was obvious that a vehicle, the Cadillac, I believe it was, was coming from the west side, crossed the road to the east side, and then, that — the bullet car, or the defendant's car — struck it on the left side," Reinoso told Trese in December.

Trese asked Villanueva, the first trooper on the scene that day, a similar question in March based on his initial diagram that depicted the Cadillac entering U.S. 1 in the path of the Jetta.

Villanueva deferred to Gracey, responding, "Well my opinions are opinions. The facts are what traffic homicide says came into play."

In February, Trese deposed Dr. Thomas Beaver, who was Monroe County's medical examiner at the time of Bolivar's death. He asked him about Bolivar's health and whether he could have had a heart attack that caused him to lose control and drive into the path of Gomez's car.

Beaver explained that Bolivar was in poor health and his heart was enlarged and diseased. But, his body had hemorrhaged, which caused bruising and contusions in several places as a result of the crash. While Beaver said he could not prove or disprove Bolivar suffered a heart attack prior to the crash, the hemorrhaging showed his heart was at least functioning.

"So, what I think you are looking for, and what I can't say, is you're saying you would like to say he was having a heart attack and he lost conscious ability to operate his motor vehicle because of that. And I cannot tell you that," Beaver said. "I cannot tell you that didn't happen. All I can tell you is that he did have, that based upon the hemorrhaging in various parts of his body, he did have some blood pressure."

Beaver concluded Bolivar died of "multiple blunt force injuries and the manner of the accident."

A man attacks another with a bat in Hialeah, Florida in an apparent road rage incident on Friday, June 9, 2017.