A judge has thrown out evidence in a DUI case because of an unusual Pinellas County sheriff's policy that prevents deputies from videotaping a specialized sobriety test.
Even though police regularly video-record themselves and suspects in DUI cases, the Sheriff's Office specifically forbids deputies from doing so with this particular test, called HGN.
That sounded "puzzling" to defense attorney Kevin Hayslett, who asks, "How could a law enforcement agency have a policy not to preserve evidence?"
Hayslett filed a motion seeking to have evidence of that test thrown out in a recent DUI case, and Pinellas County Judge Lorraine Kelly granted the motion this week.
Deputies routinely testify about the results of their HGN tests, but the policy prevents them from recording it on video.
Hayslett said he believes this week's ruling could affect other pending sheriff's DUI cases in which the HGN test was used. But it was not clear how many cases might be affected.
Sheriff Bob Gualtieri said he is reviewing the policy.
The test in question is called "horizontal gaze nystagmus." In the test, an officer asks a suspect to follow a pen, flashlight or other object with his or her eyes. The officer evaluates the eyes for a kind of jerking movement that occurs when people have been drinking alcohol.
Gualtieri said the policy was implemented in 1990, a time when the HGN testing was less established in the legal system, and judges didn't always admit the results into evidence. That meant the Sheriff's Office had to edit out portions of videos they made of their DUI stops, which led to chopped-up, confusing videos.
Gualtieri said his office began reviewing the policy about a month ago. He denied that this had anything to do with the recently filed motion and said it came up during a regular review of office policies.
He said it was too early for him to say whether he would change the policy. For one thing, he has not yet been given a copy of the judge's written ruling.
He also said videotaping the procedures probably wouldn't reveal much because the minute eye movements in the test aren't going to show up on videos.
Hayslett said, "I don't think there's any skullduggery here." He thinks the policy is probably on the books because of "a failure to adapt and update their policies."
But he said there are cases in which the videos could be useful — whether it's favorable to the defense, or law enforcement.
"Favorable or unfavorable, it's evidence," Hayslett said.
By way of comparison, St. Petersburg Police HGN procedures do not require officers to video record the tests, or to avoid doing so. But as a practical matter, officers usually don't record it because it wouldn't show the eye movements central to the test, said spokesman Bill Proffitt.
As for Hayslett's client, Christopher L. Hastings, it's not yet clear whether the motion will help with his case.
The HGN evidence was thrown out, but his case remains pending.