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04 Oct 2012

Jail Video Proves No 20 Minute Observation: Client Wins At Formal Review And Gets DUI Knocked Down To Reckless And Withhold

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State v. EHB, St. Lucie County Case No. 562008CT000264A

On January 20, 2008, Port St. Lucie Police Officer Jennifer Cuty arrested EHB for DUI.  She also notified the drivers license office that EHB had blown a .152 and .146 on the Intoxylizer 8000.  Officer Cuty portrayed a case of overwhelming guilt, a claim which would completely unravel under close scrutiny.

Shortly after her arrest, EHB contacted the Treasure Coast DUI Defense Group website, through which she retained Jeffrey H. Garland.

A cursory examination of the arrest affidavit suggested an obvious DUI.  Officer Cuty asserted that EHB made a wide turn from Port St. Lucie Boulevard northbound onto U.S. Highway 1.  She asserted that EHB was driving 10 mph below the speed limit, was weaving within her lane, and that her car twice crossed lane markers.  At that point, Officer Cuty initiated a traffic stop.  According to Officer Cuty, EHB failed the field sobriety exercises miserably, stank of alcohol and exhibited both mumbled and slurred speech.  At the St. Lucie County Jail, Officer Cuty asserted that EHB blew .152 and .146 on the Intoxylizer 8000.

Attorney Garland began an investigation to refute, if possible, the facts asserted by Officer Cuty.  The defense obtained, via public records requests, copies of all 911 communications and the security video maintained by the St. Lucie County Jail for the sallyport, booking and intoxylizer areas.  The defense was forced to file a motion to compel discovery to force the police to turn over the video made by Officer Cuty of EHBs driving pattern and scene of arrest.

Attorney Garland immediately requested a formal review hearing to contest the suspension for driving with an unlawful breath alcohol (DUBAL).  The defense requested issuance of subpoenas to Office Cuty to appear at the formal review hearing with her video and to Deputy David Snow, the agency technician responsible for maintaining the Intoxylizer 8000, with records pertaining to its maintenance.  In addition, the defense filed a public records request for all documents to be relied upon by the hearing officer during the course of the formal review hearing.

The onboard video, which the State refused to produce in discovery, was instrumental in contradicting Officer Cutys version of events.  This video was turned on after EHB turned onto U.S. Highway 1.  The video showed that EHB was driving at the speed limit, and that she drove perfectly well within her lane.  The video further documented that it was drizzling and windy during the course of the roadside encounter.  It also documented that EHB was wearing clothing more appropriate for going out at night than for standing outside on a wet, windy and cold night.  EHBs performance on the standardized field sobriety tests was neither good nor bad.  The conditions were certainly not ideal for performing these tests.  In addition, Officer Cuty left her flashing strobe lights on, which can be extremely disorienting to people trying to perform balance tests.

Officer Cuty transported EHB to the St. Lucie County Jail.  The 911 printout shows that Officer Cuty reported arriving at the jail at 2:06 A.M.  The breath alcohol test affidavit showed that the first test was administered at 2:17 A.M. – just 11 minutes after EHB arrived at the jail.  The jail security video shows that Officer Cuty was at the jail for no more than 16 minutes – measuring from the arrival of her patrol car to her departure.  Officer Cuty testified that she was present when EHB blew into the Intoxylizer 8000.

As part of the breath alcohol test affidavit, the breath test operator swore that he observed [EHB] for at least 20 minutes prior to the administration of the breath test….  This affidavit was demonstrably false based upon the 911 record and the jail video.

During the course of the formal review hearing, Officer Cuty asserted that she was able to observe EHB from the time of arrest and while driving to the jail.  Her testimony was not sufficient for two reasons:

1.    The administrative regulations require that the breath test operator conduct the observation.  The observation may be conducted by another officer, but the other officers observation must be noted on the breath alcohol test affidavit.  There was no notation that the breath test operator relied upon Officer Cuty’s claim to have observed EHB.

2.    The jail video showed that Officer Cuty was nowhere near EHB for several minutes, and that EHB was left in the presence of a booking officer after being delivered to the  jail.  The administrative regulations require that the observing officer be close enough to actually conduct an observation.

The hearing officer, in her final order, invalidated the suspension, but provided no reason for this action.  EHB’s driving privileges were immediately reinstated.

The video evidence was subsequently shown to the prosecutor.  To further bring the matter to a head, Attorney Garland filed motions to exclude breath test results based upon the violation of administrative regulations dealing with the 20-minute observation period and to suppress based upon an illegal stop.  On April 11, 2008, just before the scheduled hearings,  the charge was reduced to reckless driving, and the ticket for failing to maintain a single lane was dismissed.  Adjudication of guilt was withheld.

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