Scott Kunstmann, Florida Highway Patrol DUI Trooper, Lies in Police Reports?

Trooper Scott Kunstmann started his career with the Florida Highway Patrol in 2007. He looks proud and excited in his graduation picture from the training academy. When he started with FHP he probably never imagined that he would be arrested and charged with perjury and official misconduct.

On November 5, 2012, the State Attorney’s Office in Sarasota County formerly charged Scott Kunstmann with two third degree felonies for Official Misconduct under Florida Statute 838.022(1)(a) and Perjury in a Official Proceeding under Florida Statute 837.02(1). Each third degree felony is punishable by a maximum sentence of five years in Florida State Prison and a $5,000 (five thousand dollar) fine.

• Count 1 alleges that between November 26, 2011, and February 25, 2012, Scott Kunstmann “did knowingly and with corrupt intent to obtain a benefit for himself or another, or to cause harm to another, falsify or cause another to falsify an official record or document, to wit: Arrest Report….”

• Count 2 alleges that on or about April 3, 2012, Scott Kunstmann did make a false statement, which he did not believe to be true, to-wit: Robert Culbertson has a strong odor of alcohol emitting from his breath, under oath in an official proceeding regarding a material matter.

What is the FHP Trooper Accused of Lying About?

The probable cause affidavit alleges the crimes occurred in connection with a traffic stop on November 26, 2011. FHP Trooper Kunstmann reported seeing a vehicle on Interstate 75 driving erratically. The video of the traffic stop showed that Kunstmann’s arrest report contained many false or inaccurate statements.

For instance, in the arrest report, Scott Kunstmann wrote that he could smell a strong odor of an alcoholic beverage on the breath of Mr. Culbertson. However, in the video, Kunstmann makes three (3) separate statements to another officer that showed he did not believe Mr. Culbertson had any odor of an alcoholic beverage on his breath. In fact, the two officers are heard on tape agreeing that they couldn’t smell any alcohol.  But they arrested Mr. Culbertson anyway.

The criminal defense attorney representing Mr. Culbertson, Andrea Flynn Mogensen, said it looked like the trooper forgot the video was recording when he made those statements at the scene. It is certainly possible the trooper inadvertently recorded these statements because officers routinely turn their microphone on or off at certain parts in the investigation. In fact, the officers routinely turn off the audio recording when they are talking to other law enforcement officers on the roadside. Had the video not recorded those statements, the fact that an officer is willing to lie under oath and in the report could not have been proven so easily.

Did the Officers Conspire to Frame an Innocent Person?

Those statements to his fellow officer that he didn’t really smell any alcohol also suggest a conspiracy between the officers to frame Mr. Culbertson. After all, when Kunstmann made the arrest he knew he didn’t smell alcohol. The police report references a “strong” odor of alcohol. The backup officer knew what was about to happen as Culbertson was arrested for DUI but did nothing to stop it.

To compound the lies in the police report, the officer regurgitated those false statements under oath during sworn testimony taken in the DUI case. Trooper Scott Kunstmann testified under oath that, “I could smell alcohol on his breath.” Before giving that testimony, the trooper apparently never watched the video in its entirety and didn’t realize that his conversation with a fellow officer was recorded. Luckily, the criminal defense attorney, Andrea Mogensen, had watched the video and knew exactly how the officer had recorded his own misconduct.

Other DUI Arrests Made by Trooper Scott Kunstmann

Although the criminal allegations centered on one particular case, it looks like Florida Highway Patrol Trooper Scott Kunstmann had a pattern of such sloppy lies. A second investigation began after another attorney showed false statements made by Trooper Kunstmann during his DUI investigation of a lady on March 17, 2012. In that report the officer said that the lady arrested for DUI was “belligerent and cussing” although the video shows that she was polite and cooperative during the DUI investigation.

The trooper also alleged that during a brief period during the walk into the station, the DUI suspect said she drank three beers. Interestingly, that brief walk is the only time the officer knows for sure that no video is rolling. The lady arrested denied making that statement. You can look at the video from that arrest and see that the lady is clearly not impaired   All of the clues the officer describes in the report are contradicted by the video.

Every DUI case handled by Trooper Kunstmann is now suspect even if the person has already been convicted of DUI. Through post-conviction motions, this newly discovered evidence might allow some of those individuals to ask the court to vacate their conviction and allow a new trial on the charges. Although it is difficult to get a conviction vacated through a post-conviction motion, in this case it is possible there are sufficient grounds given Trooper Kunstmann’s recent arrest.

Why Would a Florida Highway Patrol Trooper Lie in a DUI Case?

This case gives the public a brief glimpse of what officers do when writing up a police report. Sometimes they take shortcuts to maximize the numbers of arrests that they make. Of course, there is no official quota system. But unofficially, every officer knows about the unofficial quota system. Officers are expected to make a certain number of DUI arrests. As DUI attorney Casey Ebsary is fond of pointing out – when the officer makes the most DUI arrests in a given year he is honored by MADD at a fancy reception with a shiny award.

Troopers like Scott Kunstmann learn how to lie on the job over the years. They get away with the small lies so they start to make the lies bigger. Eventually, a few of these troopers begin to think the truth doesn’t matter. The only thing that matters is meeting the unofficial quota system.

We recently wrote about another case in which an attorney with our office, Jason Sammis, caught the Florida Highway Patrol on video violating the operational plan for a checkpoint and then lying in affidavits about the misconduct.

Lies Caught on Video

For DUI enforcement officers, such lies often go without any consequence. After all, if the officer says the suspect reeks of alcohol there is usually nothing to contradict that opinion. In such a case the officer might encourage the person to “refuse” to take the breath test. If the suspect does take the breath test and blows under the legal limit, then the officer just goes back to rewrite his report to focus on possible drug impairment which is harder to detect. What juror would ever believe a suspect who said the officer was lying?

Of course, the officers also learn how not to get caught. If you are going to exaggerate a fact to make it more likely to get a conviction then don’t lie about something recorded on video. The smarter officers learn to work around that limitation.

Officers like Scott Kunstmann are not the real problem. Officers that lie about things on a video tape are pretty easy to catch. What we should be more worried about are the DUI officers that are a little smarter. Those officers know what lies to tell and how to get away with them. It is difficult to catch those officers. But perhaps the stories about Scott Kunstmann will make them think twice. Although they may not win the shiny MADD award for the most DUI arrests in a year, at least they will know that no one can arrest them for official misconduct.

Representing the Wrongfully Accused

For criminal defense attorneys, the case confirms what we already know. Some officers are willing to lie and are so lazy that their lies are caught on video. Sarasota criminal defense attorney Andrea Flynn Mogensen prepared the case for trial. Even after showing the prosecutor all of the problems with the case, the prosecutor wasn’t willing to drop the charges until the day that jury selection was scheduled to begin. But Ms. Mogensen did her part to make sure Scott Kunstmann doesn’t get to continue with his lazy lies any longer.

Read recent media reports – FL Highway Patrol Trooper, Scott Kuntsmann, arrested for fabricating arrest reports – Report from November 8. 2012 from News 10.