CLEARWATER (Bay News 9) -- Nick Bollea's attorney has won a DMV hearing against the Clearwater Police using pictures taken by Clearwater Police and an outdated blood draw form.
Clearwater Police took the pictures of Nick Bollea at Bayfront Medical Center one hour after the teen crashed his car last August, seriously injuring the passenger John Graziano.
Bollea's attorney, Kevin Hayslett, said police snapped the photos around the time they were taking Bollea's blood to test for alcohol.
"Basically he was sitting in a bed, and they took photos of him at that time," Hayslett said.
The hospital blood test result showed Bollea had a blood alcohol level of .05.
Because Bollea's a driver under 21 years old, his license was suspended.
But at a recent DMV hearing, Hayslett argued police had no right to take Bollea's blood that night.
Police said they had probable cause because Bollea had bloodshot eyes.
Hayslett said he enlarged a hospital picture to prove otherwise.
"At the time of the blood draw there was no bloodshot eyes; there was no indication of impairment," Hayslett said.
Hayslett also said it took police two months to mention bloodshot eyes in a report.
Hayslett also used their own blood draw form against Clearwater Police. He discovered the FDLE banned the form seven years ago.
"The forms that they used were the old forms," Hayslett said. "The forms that were not valid, and those were the blood draw forms. And I pointed that out to the department, and I believe that's one of the reasons that they invalidated the license and gave Mr. Bollea his license back."
And with police work, Hayslett said the fine details, such as paperwork, can make or break a case.
"This is not a situation where you're saying that this was necessarily a bad investigation," Hayslett said. "It's part of my job to point and hold the police department to their burden of making sure they can prove every point."
The outdated 1997 form Clearwater Police used is fairly general. It just requires a clearly labelled vial or tube prepped with an anticoagulant.
But the form the FDLE updated in 2001 goes further. It requires a glass tube with anticoagulant and a preservative.
The new form also requires the blood to be mixed with those chemicals several times, and investigators have to get the samples analyzed within 60 days.
"They must use someone who's certified and licensed to draw the blood," Hayslett said. "Number two, the blood draw must be done in a very particular manner. They can't use for example an alcohol swab before they take the blood. Must use a betadine swab."
Clearwater Police declined Bay News 9's request for an on-camera interview. But said they have fixed the problem and are now using the correct blood draw form.
The state attorney's office said they're checking to see if the wrong form could impact past Clearwater Police cases. But they said they're not too worried because DMV hearings have lower standards than in criminal court.
And Hayslett said the DMV hearing is not going to have much impact on thereckless driving involving seriousbodily injury charge that Bollea still faces.
He also said Bollea won't be behind the wheel anytime soon.
"The DMV, by actually taking the suspension and deleting it off his driving record, means that barring some other steps Nick is entitled to drive again," Hayslett said. "I want to be clear on this just because he can drive, he has indicated to me that he's not going to seek a reinstatement of his driver's license."
Hayslett said Bollea's currently doing community service.
Clearwater Police say they stand behind their investigation.
Bollea, who's facing up to five years in prison, will be back in court next month.
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