Kevin Hayslett, Tampa Bay DUI attorney, and a partner with the firm of Carlson, Meissner, Hart & Hayslett, was interviewed for Bay News 9 by reporter, Josh Rojas.
On Friday, January 18, 2013, Bay News 9 reported that a long-held Pinellas County Sheriff's policy that prevented deputies from videotaping one field sobriety test has recently been overturned by Sheriff Bob Gualtieri. Josh began the interview by stating to Kevin, "
Josh began the interview by stating to Kevin, "You pointed out a bizarre policy in the DUI, and you even have dash cam video pulling the person off to the side to do the HGN."
Kevin explained, "Josh, it was strange because with all the ability we have now, we have gone from Beta video tapes to almost HD video of the Field Sobriety Tests so that judges can prosecutors can evaluate the tests as if they were right there. One of the things that I noticed upon review, and I have reviewed thousands of these videos a year, and I have represented hundreds if not thousands of people accused of DUI’s throughout the Tampa Bay area, and I noticed that there was a portion that was missing. The missing portion was that of Horizontal Gaze Nystagmus, or HGN, or the eye test. The standard of the law is that if you’re going to video tape someone you have to video tape everything and you can’t omit the evidence that you don’t like, and that was the basis of my motion."
"And you won that Motion," Josh pointed out in the interview.
"I won that motion, correct," responded Kevin, "The Honorable Judge Kelley indicated, not only was the Sherriff’s Office policy incorrect but that they can’t selectively pick the test that they video tape and record and the ones that they don’t. And so she said because they failed to record the HGN test, that test which will be a tool to prosecute individuals could not be entered into evidence."
Sheriff Gualtieri then stated, "I decided that the best practice is to go ahead and videotape all of the field sobriety tests."
Gualtieri said, "The unusual policy called for deputies to take suspected drunk drivers off camera while administering the horizontal gaze nystagmus. It came to light, of course, in the court proceedings this past year about the fact that the HGN test wasn't being videotaped, so, we looked at the history of it... and found out as to why it wasn't being videotaped." Sheriff Gualtieri said the DUI policy was implemented in 1990, when the case law was not yet settled. It was a policy that's been in place for 15 years prior to my time, he said. But the logic at the time, was because it was a fairly new test, the courts were questioning the admissibility of it.
Gualtieri added, "That often caused problems in court when the video had to be played for a jury and the HGN test had to be redacted. So, the rationale was that it would be best just to do it off camera because there were only certain deputies that were recognized as having the ability to perform the test where it was admissible."
Bay News 9 first reported on the policy last June, when attorney filed a motion to have the HGN test thrown out in his client's DUI case. "The state of the law is that if you're going to videotape someone, you've got to videotape everything," said Hayslett. "You can't omit the evidence that you don't like and that was the basis of my motion." Hayslett said he was the first attorney to challenge the HGN policy and Pinellas County Judge Lorraine Kelly granted his motion.
The honorable Judge Kelly indicated not only was the sheriff's office policy incorrect but that they can't selectively pick the test that they videotape, and the ones that they don't.
"The honorable Judge Kelly indicated not only was the sheriff's office policy incorrect but that they can't selectively pick the test that they videotape... and the ones that they don't," he said.
Changes called better practices for today
Gualtieri said he wished the court's order cited legal precedent that would've helped his office craft an appropriate policy.
"Before we changed the policy, we wanted to have benefit of the court's order," Gualtieri said. "And finally when the order did come out, frankly there wasn't much in it that helped us at all."
Gualtieri said he decided to change the policy because of improved technology and the best practices of today as opposed to 20-years ago.
"It raises an eyebrow and I think rightfully so, if you're doing some things on video and then you do some things off video," he said. "The rationale may have been good rationale at the time but today it's not good rationale."
The new standard operating procedure policy for DUI investigations took effect on Dec. 10.
Hayslett praised Gualtieri for that policy change.
"Not only did Sheriff Bob do the right thing but he did it fairly quickly," he said. "So, my hat's off to him doing the right thing, correcting it."
Hayslett said the new policy allows everyone to see if the deputy administered the HGN test properly as part of their investigation to establish probable cause for a DUI arrest. During the test, a deputy looks for an involuntary jerking movement of the eyes as the suspect follows a pen or flashlight.
"Now we have an opportunity to take a look at HGN to find out whether or not the officers do it correctly," he said. "We can evaluate whether it was a good test or bad test."
Gualtieri agreed that will be beneficial.
"I think it's the right thing to do to have as much as we can captured so that people can review it," he said. "Nobody should have any concerns about it if it's being done the right way."
Hayslett said the new videotaping policy will not have any affect on past DUI cases.
Gualtieri said there is some flexibility in the new videotaping rule. For example, deputies who don't have the equipment or can't conduct the field sobriety tests in a safe environment are not expected to videotape.
"Then the policy says when they get to the jail and they do the FST's again that will be captured on video," he said.
Gualtieri said half of the agency's 500 patrol cars are equipped with video camera recorders.
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