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Seattle Post Intelligencer, US
06 August 2007

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USA: A broken system works in

The state is airing another ad against drunken driving this month warning, "Drive Hammered, Get Nailed."

But there's an exception out on the streets for some police officers.

Cops confronted with a drunken-driving arrest fare better than the average citizen, according to a Seattle P-I investigation of seven years' worth of internal discipline records, arrest reports, accident reports, license-suspension files and court documents statewide.

The P-I selected 63 cases from 92 to examine closely, focusing on active duty officers who consumed alcohol before driving police or personal vehicles. Most were street cops, but nine were assigned to county or city corrections duties.
Five sworn officers were not prosecuted at all, despite blood-alcohol tests indicating impairment.

A half-dozen officers kept their licenses after a drunken-driving arrest simply because their paperwork missed the deadline at the state Department of Licensing. Arresting agencies are given a grace period of 50 days to file the paperwork.

Although the samples are very different in size and demographics, a member of the general public's chance of getting a license suspension because of a breath test over the 0.08 blood-alcohol limit was double that of a cop, according to a P-I comparison. Only one of four current and former officers who refused a breath test lost her driver's license, while the public's rate is 16 out of 17.

Police officers who were visibly inebriated and reeking of alcohol smashed their department cars or their personal cars, asked for favors, got breaks and even threatened fellow officers who had the temerity, in their minds, to arrest them, the records showed.

In one case, an unidentified colleague of an intoxicated Seattle officer who got in an accident in a city-owned car asked the arresting trooper "how we could take care of this."

One Renton police jailer had his police identity card taped to his license as an ongoing precaution. Others outright asked for "professional courtesy."

Impaired law officers were in at least 14 accidents, including four in police cars. Kevin Williams of the Seattle police drunkenly rolled his car on a northbound Interstate 5 offramp early one morning in 2005. Lawyer David Vanderpool and another bystander used a box cutter to free him from a seat belt just before flames consumed the car. Vanderpool said he didn't know, until a P-I reporter recently called him, that he had saved a policeman's life. Williams got deferred prosecution, a five-day suspension or loss of vacation time.

In 2002, Tacoma police Officer Gurdial Garcha hit a telephone pole in Kent in his personal van, so drunk that he was nearly six times the legal limit. Some in his department wanted him fired, but he got a two-day suspension and lost two vacation days.

The Seattle Police Department was far more secretive about releasing records than any other department in the state. The department blacked out officers' names and released fewer documents. The P-I had to find details about the cases from databases and other agencies.

"We follow the laws," said Chief Gil Kerlikowske, whose agency signed a union contract that prevents release of names of officers in disciplinary records.

Some cases break down trust. In one Seattle case, an anonymous hospital worker confronted a sergeant when an alcohol-affected officer driving a city-owned car wasn't investigated for DUI after a civilian motorist running a red light struck him. Despite her efforts, the officer was never prosecuted.

At the heart of the P-I's findings is a police discipline system that is broken, illogical and unevenly applied, according to interviews, documents and a computer analysis of outcomes.

Regulators in Olympia and in Seattle who oversee the discipline of lawyers, judges and even cosmetologists do so through a detailed set of disciplinary standards. What passes for statewide discipline in the police world is one investigator attached to the state police academy in Auburn who reviews disciplinary records of terminated officers from various agencies to assess whether they should lose their state licenses.

In individual departments, standards are forged through union negotiations and in case-by-case consultations among sheriffs and chiefs. Few agencies maintain a schedule of discipline that could be laid out in a database -- the Washington State Patrol and the Arlington Police Department being two exceptions.

The result is a lack of uniformity. Crashing a police car while inebriated on Mercer Island earned an officer a suspension 15 times longer than the penalty imposed for the same violation on the other side of Lake Washington in Seattle.

Driving drunk in a police car brought a one-day suspension for a King County sheriff's detective and a termination in Island County. That King County detective also wasn't prosecuted and didn't get punished for reportedly asking the arresting state trooper for favors. A state trooper who asked for favors during a DUI arrest in a private car got a 45-day suspension and was put on probation under tough terms for the remainder of his career.

In cases in which two Spokane County sheriff's officers were caught driving drunk, a sergeant who tipped his truck over was given a reprimand and a deputy who was simply pulled over on a freeway got an eight-day suspension.

In Seattle, Kerlikowske said he has toughened discipline for DUI while chief the past seven years. When compared with other big U.S. cities, Seattle is right in line, typically doling out three- to 10-day suspensions, he said. He said he is planning to fire repeat offenders.

Seattle Police Officers' Guild President Rich O'Neill said cops are treated more harshly than citizens because they face discipline in addition to court proceedings. He said they can get hit in the pocketbook twice -- a court fine and a loss of pay in a suspension.

However, many citizens are also disciplined at work. Under federal law, truckers lose their licenses for a year for a first drunken-drinking offense, and for life for a second. Some police officers weren't suspended from their jobs, and some of those who were suspended were allowed to forfeit vacation instead of losing pay.

Police officers and firefighters are also specifically exempted from a federal law that requires truckers to be blood-tested after an accident.

Yakima Officer Lori Sheeley had five accidents in her patrol car and caused citizen injuries, but Assistant City Attorney Sofia Mabee said Sheeley wasn't tested in any of them because city policy doesn't require it. In May 2005, a year after Sheeley resigned, in part because of the accidents, she hit a barrier on a Tri-Cities bridge. She blew a breath test of .117, over the limit.

Discipline failures erode public confidence, some cops and members of the public say.

Wendi Eccles was rear-ended one December night in 2004 by a Mercer Island cop who was drunk in a city-owned car. Her back never fully recovered, and she resents that internal investigators from Mercer Island never interviewed her.

"They're supposed to be upholding the law, making sure people don't do this kind of stuff," she said. "But they go do it and don't face the same consequences."

Former Island County Sheriff Mike Hawley, now a lieutenant in the department he led until December 2006, agrees that those charged with upholding the law should be held to a public and uniform disciplinary system. Hawley led the department when it got mired in a DUI favoritism mess in 2004.

"I think some kind of standardization of disciplinary action would be good," Hawley said. "For criminals, we have standardized ranges."

Hawley served until recently as a charter member of a state board that adjudicates police license-revocation cases. "I've seen people fired for things they should never have been fired for. Then it happens at the other end, where this guy should be fired immediately, but he isn't because he is the boss' best pal."

But Kerlikowske warned that widespread police standards are "no panacea," because they take away the ability to evaluate cases individually.

Four case studies

A review of four accidents involving police officers provides a window into the process, showing how disparate the disciplinary system is.

Seattle police Detective Sgt. Anthony Baily was cut loose from his crumpled undercover police car after a three-vehicle accident in downtown Seattle about 2 a.m. one night in October 2002.

He was later cut loose from a possible DUI.

Three hours after the accident, then-Sgt. John B. Heneghan of the West Precinct was visiting Baily at the hospital, and a nurse confronted him, records show. She asked the sergeant why Baily wasn't being tested for alcohol when one of the other drivers was under police guard and being blood-tested, records show. Heneghan then noticed the odor of alcohol near Baily, the report said. Heneghan didn't write down the woman's name, and police were never able to identify her. Heneghan alerted accident investigators about 5:30 a.m.

At that point, police investigators could have blood-tested and processed Baily for DUI, but they didn't. Seattle attorney Paul Cullen, a DUI specialist, said the law wouldn't have prevented Baily's prosecution. He said experts can scientifically show that a person was drunk at the time they were driving, using blood-alcohol evidence gathered by police 3 1/2 hours later.

Later that day, a lieutenant told internal investigators about the nurse's comments.

The city attorney later considered prosecuting Baily -- a police union board member -- for DUI.

He considered using tests on blood vials that a paramedic and the hospital staff routinely collected from Baily right after the accident, but concluded that the evidence wouldn't stand up in court.

Finding Baily's case was difficult. When the Police Department released a stack of internal investigative records to the P-I -- including Baily's -- the accused officers' names were blacked out, as the city's contract with the police union dictates. But Baily's name was visible on a sheet mentioning his three-day suspension for, among other things, "use of alcohol" in his department car.

The report noted that the accident wasn't his fault, and, indeed, it wasn't.

Lynnwood defense lawyer Jim Feldman, who represented the inebriated man who ran a red light and hit Baily's car, told the P-I that he had felt Baily deserved a DUI citation.

He said Baily's unofficial test reading was higher than that of his client, who was prosecuted. Records ultimately confirmed that his client's blood-alcohol level was 0.10 and Baily was between 0.12 and 0.15.

Three weeks after the accident, SPD internal investigators with a search warrant obtained three vials of Baily's blood and test results from Harborview Medical Center. The state toxicology lab tested it.

Selected for evidence was the lowest reading, which was from the first vial drawn less than a half-hour after the accident. An investigator, Sgt. Mike Teeter, and supervising assistant city attorney Mike Finkle explored a possible DUI case, but in July 2003 Finkle wrote a memo concluding that it wasn't possible.

He noted that blood collected by the hospital wasn't preserved or handled in the way courts require. Finkle based his decision largely on technical opinions by Ann-Marie Gordon, manager of the state toxicology lab.

Gordon was concerned about a lack of preservatives and chain of custody of evidence and speculated about how a skilled lawyer might defend Baily. She suggested an admittedly unlikely defense that Baily had pounded down eight doses of liquor, wine or beer immediately before driving, and at the moment of impact hadn't yet reached the legal intoxication level of 0.08, documents show.

Gordon's credibility has since come into question. She resigned her post July 20, several days after the State Patrol began investigating whether she had lied about testing ethanol-water solutions used to make certain that breath-test machines are working properly. If proved, the allegations could lead to hundreds of challenges of DUI convictions.

As for the Baily case, Cullen, the DUI lawyer, said court precedents indicate that he could have been prosecuted using the hospital blood.

The P-I asked Chief Kerlikowske last week about Baily's case. After that interview, documents previously requested but not provided to the P-I were made available for review. Both the Police Department and the City Attorney's Office said they had been preparing the release. To date, not all of Baily's records have been provided.

Kerlikowske visited Baily at the hospital an hour after the nurse blew the whistle that night, but was then unaware of the nurse's tip, said department legal adviser Mark McCarty. Kerlikowske said he didn't smell alcohol, but if he had, he would have ordered a DUI investigation on the spot.

Feldman said his client, David Cotner, 27, of Winthrop may have benefited from what he believes was SPD's fear of publicity. That's why the city abandoned plans to charge Cotner with vehicular assault, a felony, and didn't challenge his request for deferred prosecution in the DUI case, Feldman speculates.

Kerlikowske bristled at that. "I just find that incredulous. That is so far outside the bound of what the prosecutor or a Police Department would do to keep something outside a newspaper," he said.

In another case, a Seattle police officer first tried to avoid calling police after rear-ending a young Renton man's car, then got on the phone with his superiors, who eventually had a conversation with the Washington State Patrol trooper investigating the accident.

Seattle police Officer Timothy McGrath drove his unmarked SPD Pontiac Grand Am into the rear of the man's Ford Tempo on Interstate 405 near Renton at 11:30 p.m. on June 21, 2002. No one was hurt.

A "nervous" McGrath suggested to Jeff Shane, 18, that they exchange insurance information and go their separate ways. He didn't seem drunk, Shane said, but he "was really hinting toward not calling the police, if not outright saying it."

But Shane called 911, and McGrath got on his cell phone. SPD officers arrived to talk with him, and a state trooper arrived roughly a half-hour later.

McGrath smelled of alcohol and handed his commission card to Trooper James Miller the minute he arrived, the trooper wrote in his arrest report.

Miller told him to sit tight while he called a State Patrol sergeant to the scene, who "made some phone calls" and told the trooper to process McGrath like "any other person."

All the way to the Renton police station, McGrath talked on his cell phone to "his superiors" from the back of Miller's cruiser, the trooper wrote.

Then, while McGrath waited to take a breath test at the station, he handed his cell phone to the trooper.

"They asked me how we could take care of this," Miller wrote, referring to unidentified parties on the cell phone call. "I told them I'd send (the) case up the chain of command. It was up to them."

Timing was key, because as soon as anyone takes a breath test, a state computer records the name and the reading. Was someone at the other end of the phone line trying to stop the process of a DUI citation?

"Nobody came out and said that," said a State Patrol spokesman, Capt. Jeff DeVere. "But (Miller) said it seemed that might have been what was asked."

Miller doesn't remember the name or affiliation of whom he spoke to on the cell phone, DeVere said. "He doesn't remember who he was. We don't know if it was an officer."

O'Neill, of the Guild, suggested that someone could have been impersonating a supervisor or an officer.

Troopers don't usually allow DUI suspects to talk on cell phones from a cruiser out of concern for officer safety, but there are exceptions, DeVere said. He didn't feel that Miller did anything wrong.

McGrath registered nearly twice the limit on the breath-test machine, a 0.136, and though cited for DUI, he pleaded guilty to first-degree negligent driving. His license was suspended for 90 days, but an occupational driver's license was issued to allow him to continue driving at work, according to state Department of Licensing records. Such licenses are often issued with employer approval to allow people to drive for work.

SPD internal affairs had the trooper's report but did not investigate McGrath's cell phone calls from that night, said McCarty, the SPD legal adviser. More than a year after the accident, in August 2003, the SPD issued a suspension order to McGrath, five days for "conduct unbecoming" for the negligent-driving conviction. The officer was allowed to forfeit vacation instead of losing pay.

The P-I found the cryptic order in a stack of papers the SPD turned over to the newspaper with the names of the offending officer blacked out. Databases the reporters obtained helped them identify the case. McGrath resigned from the SPD in 2005.

"Well, that's all very interesting information," he said from his Florida home after a reporter detailed what he knew. "But I'm not interested in talking to you about it. I don't think it's really any of your business."

In another case, it was a night of holiday partying that ended with a Mercer Island patrol car rear-ending a civilian's car, and a King County prosecutor who had been at the same party arriving at the police station to represent the interests of the drunken police officer.

The officer's job suspension was 15 times longer than what SPD leveled against McGrath for essentially the same offense. The Mercer Island cop wasn't allowed to forfeit vacation time.

Instead, Detective Chris DeChant got the stiffest discipline of any of the cops who drank and crashed a police car, a 75-day suspension. That's the harshest penalty ever given by Mercer Island police short of firing, said police Chief Ed Holmes, who was then in charge of the internal investigation.

But other police administrators around the state said any violation drawing more than a 30-day suspension should be a dismissible offense, and that goes especially for anyone drunk in an agency car.

"If it was sustained they were drunk, and they were driving a patrol car, they are fired," said Benton County Sheriff Larry Taylor. "That tears at your credibility, of the entire department."

Guild President O'Neill said the toughest discipline possible under the Seattle contract, short of firing, is 30 days.

Eccles, the day care operator whose back was injured when she was rear-ended, feels that DeChant got off easy. She couldn't work for a month.

DeChant, who didn't respond to interview requests, caught some breaks in the case.

For example, his license should have been revoked for a year when he refused a blood-alcohol test after the accident, but it wasn't. A Des Moines Municipal Court judge suppressed his breath-test refusal due to confusing instructions from the trooper. Because of that, the state Department of Licensing had to let him drive.

Eccles said she could tell DeChant "was drunk" the moment she saw him. He handed her his police business card when she asked for insurance information and repeatedly told her the damage would be covered. She called 911.

Some confusion arose that night when King County Deputy Prosecutor Greg Fullington, who was assigned to DeChant's narcotics task force and had been at the same party, initially tried to act as his attorney, but withdrew when reminded that his office was responsible for prosecuting DeChant.

Chief Criminal Deputy Prosecutor Mark Larson said he "vigorously counseled" Fullington for what was "not the proper role for a King County prosecutor." Fullington has since left the office.

Eccles was disgusted by the whole mess.

"He's still able to drive. His license wasn't even taken away," she said. "I don't understand why guys like him get to be above the law."

Internally, DeChant signed a "last chance" agreement that said he'd be fired for another alcohol-related offense. But when three more charges were sustained against him earlier this year for drinking and making a scene at an officer awards banquet, he got only a letter of reprimand.

"I didn't believe (the most recent violations) were severe enough for termination," Chief Holmes said. "He's a good officer, and he works really hard."

In another case, Seattle Detective Maria "Susan" DiTusa said from the wreckage of her unmarked police car that she was a police detective -- "before I could even ask DiTusa any questions," State Trooper Joseph Zimmer wrote in his report.

"I only had one, and my co-worker can attest to that," she said of her drinking.

Maybe she was rattled when she smashed the side of her department's Ford Taurus into the Mercer Street exit tunnel wall on June 9, 2004, because she probably wasn't telling the truth. She recorded 0.137 on a preliminary breath test, more than the effects of one drink.

At the hospital, DiTusa refused a blood test that would have legally determined her level of intoxication. Preliminary tests aren't admissible in court.

DiTusa appealed the state's mandatory one-year license revocation for refusing a blood-alcohol test, but when the Licensing Department rejected her arguments, she obtained an occupational driver's license.

Kerlikowske gave her a five-day suspension but allowed her to forefeit vacation in lieu of it. He promised to impose five more days if she got drunk and crashed another patrol car -- "similar misconduct" is how he put it -- within the next two years. The chief cited her "forthright cooperation with the administrative investigation" for the leniency.

In court, she reduced her criminal DUI citation to first-degree negligent driving by pleading guilty.

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Seattle Post Intelligencer, US06 August 2007

USA: A broken system works in

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Seattle Post Intelligencer, US
06 August 2007