NORTH MIAMI BEACH (CBS4) – An attorney for former Miami Beach Police Derek Kuilan said he has obtained new surveillance tape from the Miami-Dade State Attorney’s Office that is a significant development in this case.
Attorney Evan Hoffman told CBS4′s Peter D’Oench that the tape bolsters his claim that the 30-year-old Kuilan was not drinking in the hours before he reportedly went for a joyride on his All Terrain Vehicle with passenger Adelee Sharie Martin on South Beach and plowed into two people, sending both to the hospital with serious injuries.
The tape shows a 25-minute sequence, according to the time stamp on it, from the Clevelander Hotel, between the time of 4:45 a.m. and 5:10 a.m. on the morning of Sunday, July 3rd of this year, just before the accident that happened on the beach at 4th Street at 5:15 a.m.
“At no point do you see Derek in this video,” said Hoffman. “At no point do you see him drinking in this video. It’s what you see sometimes as evidence that can help you. In this case, it’s what you don’t see that can help you as evidence.”
“The theory is that Derek was at the Clevelander Hotel,” said Hoffman. “This surveillance tape supposedly encapsulates all of the hours and not once do you see him on the tape. I’d be surprised if they are going to release more surveillance tape in this case. I think this is it.”
It is not known if Prosecutors will release more surveillance tape from the Hotel. They are not commenting about the tape because of the upcoming trial, which is scheduled to start early next year.
The hotel is where Kuilan and former, fellow officer Rolando Gutierrez were captured in a photograph that was released by the Miami-Dade State Attorney’s Office at a Bachelorette party. Both Gutierrez and Kuilan have been fired.
Kuilan was charged with two counts of DUI with serious injury and two counts of reckless driving. He could face up to 20 years behind bars if convicted.
The photograph showed Kuilan and Guttierrez smiling and surrounded by women while in uniform and while on duty. Prosecutors say that photo was taken at the Clevelander Hotel.
But Hoffman, who is mounting a vigorous defense from his offices in North Miami Beach, is challenging the photo and the blood alcohol test of Kuilan that showed him just above the legal limit at .088.
“This is their smoking gun, as they like to say in TV,” said Hoffman, “but it is a smoking gun with no bullets. What does it show you? It shows you police posing with people. It happens all the time. What time was this picture taken? Was there a drink in anybody’s hand? Of course not.”
“As for the blood alcohol test,” said Hoffman, “I have a witness list of 42 people and no one will testify that they thought Derek was drunk. I have a statement from a Firefighter Paramedic that there was no way to tell if Derek was under the influence of any beverage.”
“I also have a statement from a police sergeant that he was unable to determine of Derek was intoxicated,” said Hoffman, who has been an attorney for 12 years. “One person did notice that Derek was flush in the face but that does not prove anything.”
Hoffman also said he was going to file a motion to suppress the blood alcohol test because “There was no reason to take that test. No reason at all.”
Hoffman is even taking issue with the concerns that Kuilan’s lights were off on his ATV when he was on the Beach.
“That’s part of Police protocol,” he said. “Keeping the lights off on an ATV. Part of the reason is that you don’t want the bad guys to know that you as a police officer are coming when you are about to catch them committing a crime on the beach.”
Hoffman told D’Oench that he was not allowing Kuilan to speak before the trial but he told D’Oench that Kuilan “felt bad” about the people who were injured and felt the incident was “just an accident.”
D’Oench spoke with Kitzie Nicanor from her home on Tuesday and she told him, “I still can’t work. It is going to be sometime before I can work again as an administrative assistant. And I am worried about my ability to support my one-year-old child.”
Nicanor has an attorney who has filed a lawsuit in this case. She told D’Oench that she was not up to talking on camera, but she said she stood by what she told CBS4 in an exclusive interview on July 26th from her hospital bed.
“I am suffering. I have a child,” Nicanor told us at the time. “I came here on vacation to visit my parents. I was out but was I doing something stupid? No, I was just going for a walk.”
A spokesman for Almonte told D’Oench that he was doing “Ok” but he could not speak without permission from his attorney.
The incident also prompted outrage from Miami-Dade State Attorney Katherine Fernandez-Rundle, who said on July 26th that the officers’ behavior at the Clevelander Hotel was so bad that some people at the party thought that they were part of the entertainment.
“No one in the Police Department or Law Enforcement can accept the concept of a drunken on duty police officer,” said Fernandez-Rundle.