I find the policy crazy and archaic that they created a policy specifically intended, intended, intentionally to exclude evidence
Clearwater, Florida (PRWEB) January 18, 2013
For the last year, Kevin Hayslett, Tampa Bay DUI attorney with the law firm of Carlson, Meissner, Hart & Meissner, Hart & Hayslett, P.A., has been in the center of a brushfire that has been storming through the legal and law enforcement communities of the Tampa Bay area in Florida.
Bay News 9's Josh Rojas, a general assignment reporter based in the news channel's Pinellas County newsroom, interviewed Kevin Hayslett on January 15, 2013, regarding the 25 year old video taping procedure of the Pinellas County Sheriff’s Office.
In the case igniting this brushfire, State v. Hastings, CTC11-05700XDV/9643/9644GTWANC, North Pinellas County Traffic Court Judge Lorraine M. Kelly, granted Kevin Hayslett's Motion to Dismiss or Alternatively to Supress evidence presented by the Pinellas County Sheriff's Office regarding the Horizontal Gaze Nystagnus (HGN) test. This motion concerned the alleged failure of the Pinellas County Sheriff’s Office to videotape the Horizontal Gaze Nystagnus (HGN) test. This is one of four field sobriety tests given, and the only one that is not required to be video taped.
The HGN test will show whether or not the officer observes ‘bouncing eyeballs’ when the accused follows a stimulus (usually a flashlight or a pen) with his eyes. The officer moves the stimulus to the left and right before the individual's eyes with the head tilted back.The eyeballs may ‘bounce’ or involuntarily twitch back and forth at extreme left and right limits in the peripheral area if the individual has had too much alcohol to drive safely.
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."
In a previous article written by Josh Rojas following his interview of Kevin Hayslett on June 29, 2012, he stated that Kevin’s client, “Christopher Hastings, was pulled over last September. He was told by the deputy to walk off camera to perform the HGN test."
Rojas continued with, "Deputy Steven Kaselak was asked by the prosecutor why he performed the test off camera. Kaselak said because that was “department policy. The Pinellas Sheriff's Office HGN test policy states: “Do not administer the HGN test on the video recording. Hastings' attorney Kevin Hayslett blasted that policy in court."
During the interview Kevin Hayslett stated, "I find the policy crazy and archaic that they created a policy specifically intended, intentionally to exclude evidence. That’s what they've said, we’re going to exclude evidence and we’re going to make it a policy. The fact that we’re not going here scratching our heads going, 'oh my gosh what were they thinking' is beyond me.”
"Judge Lorraine Kelly ruled that the HGN test cannot be used in Hastings' DUI prosecution."
"They can't have it both ways. They can't keep it off and then come in and testify about what it was. That, to me, is just fundamentally unfair," Judge Kelly said.
Kevin Hayslett argued that this test was the only Field Sobriety Test to be ordered done off-camera. This withholding evidence raises the specter of a Brady v. Maryland, 373 US 83 (1963) issue regarding the government concealing evidence beneficial to defendants. Defendants argue that the editing of the Field Sobriety Test video, by not recording the Horizontal Gaze Nystagnus test, destroyed evidence necessary to the defense and otherwise unavailable.
This ruling has changed the Pinellas County Sheriff’s Office policy with regard to video taping all the Field Sobriety Tests and not just a portion of them. Hopefully all other agencies that perform the Horizontal Gaze Nystagnus test off camera will follow suit, thereby providing a greater level of justice for the people.