Decision not to prosecute Hernando deputy for DUI rooted in differing witness accounts

Published Feb. 7, 2014

BROOKSVILLE — When prosecutors decided this week to not move forward with a DUI case against a Hernando County sheriff's deputy, they cited conflicting witness accounts and a lack of evidence.

A Florida Highway Patrol corporal arrested Deputy Joseph Tibor, but several of Tibor's co-workers also interacted with him that night. A review of the witness statements shows the differing accounts fell largely along agency lines.

Cpl. David Frye's arrest report gives this account:

About 9 p.m. Jan. 12, Frye stopped a white Mercedes traveling 85 mph in a 55-mph zone on State Road 50 west of Brooksville. Tibor initially denied drinking any alcohol, but when Frye said he smelled an odor of alcohol on Tibor's breath and noted his glassy, bloodshot eyes, Tibor said, "Okay, well, I had maybe five drinks earlier."

Tibor was unsteady on his feet, Frye wrote. During the horizontal gaze exercise, he stopped following Frye's pen cap with his eyes and stared straight ahead. During the one-leg stand, Tibor swayed back and forth and raised his arms for balance. He counted to 19, then skipped to 22.

During the walk-and-turn, Tibor was unable to stand in the correct starting position, stepped off the line at least once, raised his arms for balance and shuffled his feet as he turned around. He walked extremely slowly, "as if to make sure he could stay on the line," Frye wrote.

Deputy Bryan Faulkingham arrived as Frye was completing the horizontal gaze test. In a memo to sheriff's Col. Mike Maurer, Faulkingham wrote that Tibor was stable with his arms at his side during the one-legged test and completed the walk-and-turn test as instructed, maintained his balance and never stepped off the line. Tibor wobbled on a couple of steps, but Faulkingham attributed that to bumps in the fog line.

Moments later, Faulkingham had a brief conversation with Tibor through a half-open patrol car window.

"I did not detect any odor of an alcoholic beverages coming from Joe," Faulkingham wrote. "It did not appear to me that Joe was impaired."

Laurie Pizzo, a local Realtor and County Commission candidate who was riding along with Faulkingham, also said Tibor appeared to pass the exercises.

Frye's Tahoe did not have a dashboard camera. Neither did Faulkingham's car.

Assistant State Attorney Will Hamilton reviewed the case and conducted some follow-up interviews. According to Hamilton, Tibor's passenger, his ex-wife, Wendy Sweeney, said Tibor had two drinks during dinner in Orlando that night. Sweeney said Tibor did not have trouble finding his license, as Frye wrote in his report, and that he made no admission about drinking.

A trooper who drove Tibor to the jail said he did not smell alcohol on Tibor, Hamilton said. Two deputies at the Hernando County Detention Center said Tibor's eyes were bloodshot, but he seemed coherent, was steady on his feet and did not smell of alcohol.

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FHP Sgt. Heather Glenny arrived at the jail to conduct a breath test. In a memo to her supervisor, Glenny said she smelled a "strong odor" of alcohol coming from Tibor and that his eyes were bloodshot and watery.

Breath tests at the jail are routinely recorded on video and audio. According to Glenny's memo, Deputy Michael Paolella said the machine was recording and left the room. Tibor refused to submit a breath sample.

Glenny and Frye realized after the interview that the recorder did not record. According to Glenny's memo, Paolella said he pushed the record button, but sometimes the video machine shuts off and fails to record.

Paolella disputed that account, Maurer told the Tampa Bay Times. It's the job of the breath-test operator — in this case, Glenny — to operate the equipment so fewer people have to testify in court, Maurer said. According to Maurer, Paolella said he let Glenny into the breath-test room and turned on the machine, but left Glenny to operate the recorder from there.

As for the differing witness accounts, Maurer said: "The discrepancy was something I was almost anxious to see play out in the courtroom."

The patrol's spokesman, Sgt. Steve Gaskins, said Frye arrested "what he and other troopers had probable cause to believe was an intoxicated driver who happened to be a Hernando County sheriff's deputy."

"Corporal Frye acted in good faith, in accordance with FHP policy and within the laws of the State of Florida," Gaskins wrote.

Hamilton said the fact that conflicting statements came from law enforcement officers from different agencies — one of them Tibor's employer — did not factor in the decision not to prosecute.

"It's unethical to file a criminal case unless you believe that there is a substantial likelihood of conviction at trial," he said.

Tibor's license was suspended because he refused to take the breath test. He has an appeal hearing slated for Feb. 20 and will remain on paid administrative leave pending the outcome.

Times researcher Natalie Watson contributed to this report.