News: Fired Miami Beach Cops Claims Blood Test Was Illegal

By John Zur

Ex-Miami Beach police officer Derick Kuilan, whose ATV joyriding – with a woman he picked up at The Clevelander – resulted in two serious injuries, is now claiming the blood test taken after the accident was illegal. He and Rolando Gutierrez, who was on-duty with Kuilan that night, but was not present during the aforementioned incident, filed grievances against their respective terminations.

According to the affidavit in support of arrest warrant, dated July 25th, the collision occurred on July 3rd at approximately 5:15 am, on the beach near 4th Street. MBPD officer Robert W. Silvagni was assigned to the investigation. Through interviews with witnesses and reviews of sworn statements and photos of the scene, Silvagni learned that Kuilan and Gutierrez entered the bar at The Clevelander in the early morning hours. Adalee Martin and four female friends, who were visiting from Pennsylvania, posed with the officers for a photo. “The behavior of both officers was so unprofessional that all five women did not believe they were real police officers,” states the affidavit. Kuilan then invited Martin to take a ride with him on his ATV.

Martin hopped on the ATV and Kuilan proceeded to drive towards the beach, eventually cruising on the sand. As stated in the affidavit, “Although he occasionally turned on the headlight on his vehicle when pedestrians on the beach where [sic] nearby; for the most part, he drove with his headlight off.” They drove south to “the end of the beach,” whereby Kuilan turned around to drive north without his headlight on. After the collision, Martin identified Kuilan as the policeman driving the vehicle at the time of the accident.

The victims were Kitzie Nicanor and Luis Almonte, who were walking along the beach at the water line. Walking away from the water, Ms. Nicanor and Mr. Almonte were struck by the ATV, which was traveling at a “rapid pace.” Two witnesses, walking behind Nicanor and Almonte, reported hearing the loud impact, but not seeing it due to no lights and the speed at which it was going.

MBPD responded to the scene, where Sgt. Michael Muley was met by Jamie Aldinger. Aldinger, one of Martin’s friends, showed Sgt. Muley the photo from The Clevelander and said Kuilan and Gutierrez had been drinking with them. Muley attested to smelling the odor of alcohol on Gutierrez. At 10:30 am, Kuilan’s blood was drawn by fire rescue. Analysis provided that his Blood Alcohol Concentration was 0.0888. Police chief Carlos Noriega has stated that the blood test was taken five hours after the crash because the department needed to ensure that the test was taken legally.

While Almonte was hospitalized for a few days with a broken femur, Nicanor remains in serious, but stable condition, after having undergone several surgeries. The arrest warrant notes two counts each of reckless driving/ serious bodily injury and DUI/ serious bodily injury to another.

The incident occurred on a Sunday. Immediately, Kuilan and Gutierrez were suspended. And by Friday, they were terminated.

Dated July 27th, Kuilan’s grievance states: “I am grieving my termination/discharge which was unlawfully, unfairly and improperly based on the results of an illegal and forcible blood alcohol test. The test was carried out against my will and in flagrant disregard of my constitutional right to privacy and my constitutional right to be free from unreasonable searches and seizures… Moreover, I was afforded absolutely no due process when it came to the other allegations and circumstances contained in the notice of intent to discipline document. In short, the City based their arbitrary decision to terminate me on an unconstitutional/unlawful test and false, inflammatory and unsubstantiated allegations and information. In short, there was insufficient just cause to support my discharge.”

Kuilan, who earned $91,032.51 in salary and overtime last year, according to the Miami New Times, is seeking “reinstatement with back pay and benefits and to be made whole in all respects. “

Gutierrez, who claims he “was adjudged guilty by association in regards to the Ofc. Kuilan accident,” is seeking similar reparations for his discharge.

Kuilan’s grievance was filed before he retained Evan Hoffman as his attorney. Says Hoffman, “It’s been sensationalized. People are assuming that’s what’s already been put out there is true, and I wouldn’t assume that.” Hoffman could not comment on Kuilan’s motives for filing the grievance, except for stating that he believes his client is seeking monetary compensation. When asked why Kuilan calls the blood test “illegal,” Hoffman retorted that those are Kuilan’s words and that he can only vow to properly challenge the process leading up to the blood test being administered. While no breath test was taken, the blood test that Hoffman did call “intrusive” was possibly against Kuilan’s consent. Hoffman also stated that his experts have yet to look at the test results. Hoffman declined to answer questions, at this time, pertaining to Kuilan’s reason for visiting The Clevelander while on-duty and whether or not he consumed alcohol that night. Hoffman did note that The Clevelander has security cameras and that video footage retrieved from that evening does not show Kuilan drinking.

Although he is not being criminally charged, Gutierrez has retained legal representation, unknown to Hoffman at this time.

“It’s his right (Kulian) to protest his termination under the union contract rules. There is a process. But I stand behind the city’s decision to terminate the officers because they were not where they were supposed to be while on duty. We can’t tolerate that in the City of Miami Beach,” said Mayor Matti Herrera Bower.

Derick Kuilan’s arraignment is scheduled for August 25th.

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