Miami Marlins pitcher Jose Fernandez and two of his friends 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 recovered by divers, according to a search warrant affidavit obtained by the Miami Herald.
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 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.
Those criminal charges are brought when there is someone to charge. No other suspects are mentioned in the affidavit.
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 All-Star pitcher died Sept. 25 when his 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 was piloting the boat.
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.
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 the Marlins.
Later, when pressed by the media about those statements, they back-pedaled, saying that they were in error. On Wednesday, they tried to further clarify their 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 trio was doing, or where they were going when their boat, headed south, plowed at a high speed into the dark rocks that jut east into the ocean from South Pointe Park after 3 a.m. But Fernandez was at American Social Bar & Kitchen in Brickell before the crash.
Fish and Wildlife investigators said they found a receipt for alcohol from the bar 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 the 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 charged in the case, investigators are likely investigating 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 that they will wait until the investigation is complete.
The Miami Herald was unsuccessful in reaching Chris Royer, the Fort Lauderdale attorney hired by Rivero and Macias' families.
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 warned 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 he allegedly had an argument with his girlfriend, Maria Arias, who is pregnant with Fernandez's daughter.
About midnight, Rivero, who had only recently met Fernandez, text 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 waterfront bar that offers an endless selection of craft beers on Miami's New River. 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 trio posted some photographs of social media about 2:30 a.m. It's not clear exactly when the trio set out on the SeaVee from the club. Bernal turned in for the evening after seeing they were at the bar.
Where the Kaught Looking and its crew went for the next 35 minutes is not 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 it was heard by a Miami Beach police officer who called fire rescue about 3:20 a.m. A passing Coast Guard boat discovered the vessel, 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 boat suspect that he was driving fast. The engine could give clues to the speed and direction of the boat. The vessel's GPS may provide evidence as to its speed.
The affidavit said the boat had two Garmin GPS devices on board, which will reveal its route and angle of impact and possibly even the speed. The engines, two 350 horsepower Mercury Verado outboards, also have a compute device, or "black box," which will provide investigators with further information about the vessel's speed, the warrant said.
The state Fish and Wildlife agency have formally asked the medical examiner to keep the toxicology report on the three men under wraps under their 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," they said in a statement.
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' 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 driving a boat.
After the crash, Fish and Wildlife spokesman Lorenzo Veloz said that he had been on Fernandez' boat several times, but that Fernandez had not been captain. Records show that Fernandez registered his ownership of the vehicle in 2015.
Robert Klepper, a spokesman for the fishing commission 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 many other boating accidents. Boaters have said that at high tide, the rocks are often submerged in the tide and difficult to see, even though they are marked by buoy lights.
The Coast Guard, which conducted a review of the jetties at Government Cut last year and deemed them safe, said they 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.
