Scott Kunstmann, Florida Highway Patrol DUI Trooper, Accused of Misconduct

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 Trooper’s investigation was videotaped. The video 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. 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 especially when they are talking to another officer.

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. When Kunstmann made the arrest he knew he didn’t smell alcohol. The police report references a “strong” odor of alcohol. The backup officer did nothing to stop it.

Before trial, 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 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. It doesn’t appear that the lady is impaired. All of the clues the officer describes in the report are contradicted by the video.

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.

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 these 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. If the officer has his doubts about whether the suspect might blow under the legal limit, the officer can 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.

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. 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.

8 Comments

  1. Everyman
    Posted November 19, 2012 at 07:03 | Permalink | Reply

    Well done, Ms. Mogensen. PC is already so astoundingly low for DUI that ‘small’ lies by LEOs guarantee that they can arrest anyone for DUI, if they wish. Especially considering that a defendant usually has no way to refute the lies other than testimony which produces a situation of “drunk said vs. cop said”. Servile juries still believe the word of the cop. Everyone should record ALL interactions with LEOs. Always.
    Most amazing is that this criminal will actually face consequences for his misconduct. I believe the Florida defense bar leads the nation in aggressive defense of citizens. Kansas, for instance, acts like a litter of neutered puppies with few exceptions.
    Fight the good fight.
    Veritas nunquam perit!

  2. Anonymous
    Posted November 20, 2012 at 02:02 | Permalink | Reply

    So, I understand that everyone is all hyped up that “yay, a cop is getting busted” but I think people are missing some major parts. Officer Kuntsmann may have verbally said he didn’t smell alcohol on Mr. Culbertsons breathe but he still gave Mr. Culbertson a sobriety test that he failed. So the fact IS the man was pulled over and he was drunk. If Officer Kunstmann had not pulled the man over and hauled his butt to jail that man could’ve killed someone. Yes, I know could have is not what DID happen but still, I’d rather someone be cautious than reckless. Are we also missing a BIG thing that almost every paper has left out in their persecution of Officer Kuntsmann. Mr. Culbertson was pulled over in Lee County 3 days later for a DUI.3 days later Culbertson was out driving under the influence again and refused once again to cooperate and was hauled off to jail. I think there’s a pattern here. Yes, Kunstmann should not have lied under oath but Culbertsons license should also be suspended and he should lay off the bottle.

  3. Everyman
    Posted November 28, 2012 at 08:19 | Permalink | Reply

    I posted nothing such as, “yay a cop is getting busted.” I only applaud defense attorneys doing a thorough job and employing accountability for crimes committed by LEOs, which is rare.
    I cannot agree that Kunstmann is being somehow ‘persecuted’. He violated the laws and his solemn oaths. Many of us take those things seriously. Mr. Kunstmann obviously does not. He committed these crimes in an effort to deny Mr. Culbertson a fair trial with truthful evidence. To condone such behavior in order to prevent something that ‘might’ happen (Culbertson causing an accident), is to endorse an “end justifies the means” standard of conduct for LEOs which would have the effect of nullifying constitutional protections.
    Of course, we are left to speculate on the frequency of Kunstmann’s misconduct throughout his career. Did he falsify other evidence in this case? How many people has he helped convict with false testimony and evidence? Surely this is not an isolated incident.
    Kunstmann has proven himself untrustworthy. He does not rate to wear a badge and he should be prosecuted. I wonder how he would feel about the prosecutors and witnesses in HIS case lying under oath and falsifying evidence in order to gain his conviction?
    I would say that unscrupulous LEOs are a greater danger to society than a driver with a BAC above .000.

  4. Anonymous
    Posted December 2, 2012 at 20:45 | Permalink | Reply

    ONLY IN AMERICA!!!!!!!!!!!!!!!!!!!!
    CAN A PERSON BE GUILTY THEN YOU FIGHT
    TO PROVE YOURSELF INNOCENT!!!!!!!!!!!!!!!

    LETS HANG THE TROOPER!!!!!!!!!!!
    WE’LL WORRY ABOUT THE DRUNK LATER…..

    GOOD THING NO ONE WAS KILLED THAT NIGHT.
    MAYBE WE WOULD BE DEFENDING MR. CULBERTSON
    DUI#2!!!!!!!!!

    • Everyman
      Posted December 3, 2012 at 14:29 | Permalink | Reply

      Well done on not addressing ANY legitimate issues raised in my posts and simply slamming on the ‘CAPS LOCK’ with an angry fist. Although your ability to use numerous exclamation points is persuasive, I remain unconvinced by your blind defense of a crooked cop.
      Funny you should mention the injustice of “guilty until proven innocent”. That is exactly a defendant’s situation in a DUI case. Made worse by LEOs willing to perjure themselves and falsify evidence against them.
      I think hanging Kunstmann might be excessive punishment. If a jury finds him guilty he should face appropriate consequences. Of course, he could never again be trusted to be employed as even a dog catcher.
      I say again, if in the interest of public safety (preventing corrupt LEOs from committing crimes) the prosecutors and witnesses against Kunstmann deemed it necessary and justified to commit perjury and falsify evidence to convict him…you would be okay with that?
      Some unsolicited mental health advice for you…take two doughnuts and post something in the morning.

  5. MATT
    Posted January 2, 2013 at 18:11 | Permalink | Reply

    FHP, PCSO, FDLE, and State Attorneys knowingly falsify police reports and fabricate evidence. policeabuse.weebly.com

  6. Everymom
    Posted March 13, 2013 at 16:19 | Permalink | Reply

    If I or one of my children or family members ever faces such an issue of being falsely accused and lied about, I can only hope to have an attorney that lives his/her values and is willing to fight corruption and believes a person is “innocent until proven guilty” and that the “little guy” is still worth fighting for. In today’s society, unfortunately, our government leaders often times live by their fears rather than values–and our constitutional rights are slowly being taken away…what happened to “due process”,”liberty and justice for all”? All it takes is one dirty copy, one dirty mayor, one judge who knows so and so and so and so, one dirty corporate exec or official to cover something up or who wants to prevent the truth from coming out etc. and someone’s rep or life is on the line…Thanks to all those in the legal industry who really want “equal justice under the law” and are willing to do what they can to fight for it! That being said, I still think it’s sometimes the guy with the most money that wins his/her case. I hope there are firms and other attorneys out there that prove me wrong daily working for the “little guy”… because there sure seems to be enough corruption to go around–story after story on the internet and in the news. If we attempt to take justice into our own hands and lie to sway the jury like that cop did or allow prosecutors to fabricate evidence, ask friends to lie on the witness stand, attempt to set-up otherwise nonexistent systems of evidence to snare someone — when/where does it ever end?-

  7. Posted October 3, 2015 at 20:00 | Permalink | Reply

    I was recently arrested for a DUI and open container under very similar circumstances as this case. The charges were dismissed for lack of probable cause.

    The officer made two written reports that were full of false statements and contradicted each other. He admitted to making mistakes giving the Intoxilizer exam and to “clearing” or destroying material evidence. He claimed he had a Dash Cam and Body Cam working but refused to produce either video.

    The officer has only been on duty 3 months and was either poorly trained or has serious psychological problems that would make him do these things and he is a danger to society in my opinion.

    I am considering a civil rights case for false arrest, false imprisonment, malicious prosecution and now I will add Official Misconduct and Making False statements after reading this article.

    Thanks for a good discussion!

2 Trackbacks

  1. […] allegedly lied in his report and under oath when testifying about a DUI arrest. Read more about why Scott Kunstmann, Florida Highway Patrol DUI Trooper, is accused of lying in a police […]

  2. […] She later blew a .038 which is well-below the legal limit. Attorney Andrea Mogenson represented Ms. Adams at trial. You can read more about the trial or watch the arrest video here – Jury Acquits Local Arrest after a DUI Arrest. [Andrea Mogenson is no stranger to the FHP – she was also involved in the investigation of Trooper Scott Kunstmann.] […]

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