Post by WaTcHeR on Nov 3, 2006 10:57:10 GMT -5
11.03.2006 - A Vancouver Police Department officer is arrested for allegedly driving while intoxicated. But a deputy prosecutor declines to file a charge, citing insufficient evidence.
During his arrest on suspicion of DUI, the police officer refuses to take field sobriety tests or a breath-alcohol test. But three months later, he still has his driver’s license and his job as patrolman.
And although VPD Officer Clarence “Andrew” Young was pulled over for allegedly driving 61 mph in a 40 mph zone, he hasn’t received a speeding ticket.
What’s going on? An unusual number of readers have been asking that question after seeing a story about the affair in The Columbian last month.
“If he refused to blow into the machine, his license should have been taken just like anyone else’s,” said Mike Crockford, a Battle Ground resident.
“When was the last time any of us went 20 mph over the speed limit and got a verbal warning?” asked Nate Graham of Washougal.
“As a police officer, Officer Young of all people is well-versed in the laws of this state as they relate to drunken driving,” wrote M. Gwyn Myles of Vancouver.
Myles added: “He of all people should have been punished to the greatest extent of the law and not let off because of a ‘loophole.’”
The Columbian has taken a closer look at the case, including interviews with attorneys and state driver’s licensing officials.
The result? It appears that Officer Young so far has benefited from provisions of state law that aren’t so much loopholes as rules that are not widely understood by the public.
It also appears that the officer’s DUI arrest experience has been far more pleasant than those of many ordinary citizens, including his two months of paid time off, which one reader called a “paid vacation.”
But he’s not completely off the hook.
Speeding through the night
The case dates back to the night of Aug. 5, when two reserve deputies with the Clark County Sheriff’s Office saw Young’s Toyota pickup on Northeast 162nd Avenue, north of Fisher’s Landing.
The deputies’ radar showed the off-duty officer was driving 21 mph over the speed limit, so they pulled him over, according to the arrest report, which later was released by the sheriff’s office.
The report said Young cooperated with the deputies and spoke clearly. One deputy smelled alcohol on Young. The other didn’t.
Since the driver was a fellow police officer, one deputy called for direction from sheriff’s Sgt. Tony Barnes, who advised the deputy to “treat the subject as he would any other DUI driver.”
There was some discussion by the two reserve deputies of whether they should simply release Young to a VPD sergeant who came to the scene, with a verbal warning for speeding, so the matter could be handled “internally,” the report said.
Sgt. Barnes said Wednesday that he drove to the scene and processed Young as a possible impaired driver like anyone else.
Vancouver police spokeswoman Kim Kapp said Acting Police Chief Mitch Barker did not intervene in the matter.
Upon his arrival at the arrest scene, Barnes said in his report: “When Young spoke, I could detect a very slight odor of intoxicants on his breath.”
Asked if he’d been drinking alcohol, the report said, Young first said no and then said he’d consumed one social drink.
Police say just one standard drink wouldn’t put a man over the state’s 0.08 DUI threshold. Nevertheless, Young refused to submit to field sobriety tests or a portable breath-alcohol tester, the report said.
After being arrested for alleged DUI, Young refused to take the alcohol breath test on the larger machine at Washington State Patrol headquarters.
Another sheriff’s sergeant, who said he didn’t smell any alcohol on Young, drove him home. The deputies and sergeants wrote their reports of the arrest, which were sent to deputy prosecutors for consideration of a DUI charge.
On Aug. 8, three days after his arrest, the VPD placed Young on paid administrative leave during an investigation. He returned to patrol duty Oct. 9.
In a later interview, Deputy Prosecutor Mark Beam said there wasn’t enough evidence to file the DUI charge against Young.
With no evidence from sobriety tests or breath samples, the evidence against Young boiled down essentially to this: He’d been speeding; a couple of officers reported smelling alcohol on his breath and two others didn’t.
A wise decision?
Did officer Young make a wise decision not to take the breath tests?
If he’d passed the tests, he might never have been arrested. But if he’d failed and was arrested, the DUI charge might have been filed.
But Young’s alcohol level wasn’t tested, so there’s no way to know.
What about his driver’s license?
If you visit the Washington Department of Licensing’s Web site, www.dol.wa.gov, you’ll find this answer to the question “What if I refuse to take the breath or blood test?”
“If you refuse to take the test, your license will be revoked. When you operate a motor vehicle in Washington state, you automatically give consent to have your breath or blood tested if a law enforcement officer believes you have been driving under the influence of alcohol or drugs. This is Washington’s implied consent law.”
And indeed, under RCW 46.20.308 of state law, you’ll see these words:
“2(a) If the driver refuses to take the test, the driver’s license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver’s refusal to take the test may be used in a criminal trial. …”
A first-time conviction for DUI, by comparison, usually results in a 90-day license suspension.
These statements are clear enough, and many folks have heard them. But they’re not the whole story.
“That might be where some of the confusion lies,” said Alyson Chase, a spokeswoman for the licensing department in Olympia.
Other parts of the DOL’s Web site and RCWs say anyone can request a formal hearing on the license revocation with the DOL, as officer Young’s attorney, Jon McMullen, did soon after his client’s arrest.
If a hearing request is properly filed within 30 days, with a $200 fee, the licensing department won’t suspend the driver’s license until after the hearing is held, officials said.
“It would be the same for you or me,” Chase said. “When anyone requests a hearing, we will not take action until the end of the hearing process.”
Indeed, the hearing request can be filed online at the DOL Web site, and it’s not required that it be filled out by an attorney.
Generally, officials said, the licensing department will schedule a hearing within 60 days. License hearings can be held in Vancouver or even telephonically in a conference call. Drivers can have witnesses subpoenaed if they choose, for a fee.
But it’s no magic bullet.
Filing a hearing request might delay a license suspension when someone is arrested for DUI, even if they refuse the alcohol breath test, officials say. But that doesn’t mean the driver’s license won’t be suspended after the hearing is held.
“I can tell you, from our end, it’s handled very consistently,” said Brad Benfield, another spokesman for the licensing department.
According to RCW 46.20.308 (8), which explains the process, the hearing officer will consider a number of factors: whether the arresting officer had “reasonable grounds” to believe the driver was under the influence of alcohol or a drug; whether the arresting officer gave the driver the required implied consent warnings; whether the driver refused the tests after being told it would mean license revocation; and if the driver took the tests, their results.
Won’t always lose license
Hearing officers also consider whether tests were given lawfully.
Asked whether a driver who refused to take DUI breath tests will always lose his license in such hearings, licensing officials and attorneys said no.
License suspensions can be dismissed in hearings for technical problems, such as an officer checking the wrong box on a form, or a page not sent to the licensing department, Benfield said.
www.columbian.com/news/localNews/11022006news73015.cfm
During his arrest on suspicion of DUI, the police officer refuses to take field sobriety tests or a breath-alcohol test. But three months later, he still has his driver’s license and his job as patrolman.
And although VPD Officer Clarence “Andrew” Young was pulled over for allegedly driving 61 mph in a 40 mph zone, he hasn’t received a speeding ticket.
What’s going on? An unusual number of readers have been asking that question after seeing a story about the affair in The Columbian last month.
“If he refused to blow into the machine, his license should have been taken just like anyone else’s,” said Mike Crockford, a Battle Ground resident.
“When was the last time any of us went 20 mph over the speed limit and got a verbal warning?” asked Nate Graham of Washougal.
“As a police officer, Officer Young of all people is well-versed in the laws of this state as they relate to drunken driving,” wrote M. Gwyn Myles of Vancouver.
Myles added: “He of all people should have been punished to the greatest extent of the law and not let off because of a ‘loophole.’”
The Columbian has taken a closer look at the case, including interviews with attorneys and state driver’s licensing officials.
The result? It appears that Officer Young so far has benefited from provisions of state law that aren’t so much loopholes as rules that are not widely understood by the public.
It also appears that the officer’s DUI arrest experience has been far more pleasant than those of many ordinary citizens, including his two months of paid time off, which one reader called a “paid vacation.”
But he’s not completely off the hook.
Speeding through the night
The case dates back to the night of Aug. 5, when two reserve deputies with the Clark County Sheriff’s Office saw Young’s Toyota pickup on Northeast 162nd Avenue, north of Fisher’s Landing.
The deputies’ radar showed the off-duty officer was driving 21 mph over the speed limit, so they pulled him over, according to the arrest report, which later was released by the sheriff’s office.
The report said Young cooperated with the deputies and spoke clearly. One deputy smelled alcohol on Young. The other didn’t.
Since the driver was a fellow police officer, one deputy called for direction from sheriff’s Sgt. Tony Barnes, who advised the deputy to “treat the subject as he would any other DUI driver.”
There was some discussion by the two reserve deputies of whether they should simply release Young to a VPD sergeant who came to the scene, with a verbal warning for speeding, so the matter could be handled “internally,” the report said.
Sgt. Barnes said Wednesday that he drove to the scene and processed Young as a possible impaired driver like anyone else.
Vancouver police spokeswoman Kim Kapp said Acting Police Chief Mitch Barker did not intervene in the matter.
Upon his arrival at the arrest scene, Barnes said in his report: “When Young spoke, I could detect a very slight odor of intoxicants on his breath.”
Asked if he’d been drinking alcohol, the report said, Young first said no and then said he’d consumed one social drink.
Police say just one standard drink wouldn’t put a man over the state’s 0.08 DUI threshold. Nevertheless, Young refused to submit to field sobriety tests or a portable breath-alcohol tester, the report said.
After being arrested for alleged DUI, Young refused to take the alcohol breath test on the larger machine at Washington State Patrol headquarters.
Another sheriff’s sergeant, who said he didn’t smell any alcohol on Young, drove him home. The deputies and sergeants wrote their reports of the arrest, which were sent to deputy prosecutors for consideration of a DUI charge.
On Aug. 8, three days after his arrest, the VPD placed Young on paid administrative leave during an investigation. He returned to patrol duty Oct. 9.
In a later interview, Deputy Prosecutor Mark Beam said there wasn’t enough evidence to file the DUI charge against Young.
With no evidence from sobriety tests or breath samples, the evidence against Young boiled down essentially to this: He’d been speeding; a couple of officers reported smelling alcohol on his breath and two others didn’t.
A wise decision?
Did officer Young make a wise decision not to take the breath tests?
If he’d passed the tests, he might never have been arrested. But if he’d failed and was arrested, the DUI charge might have been filed.
But Young’s alcohol level wasn’t tested, so there’s no way to know.
What about his driver’s license?
If you visit the Washington Department of Licensing’s Web site, www.dol.wa.gov, you’ll find this answer to the question “What if I refuse to take the breath or blood test?”
“If you refuse to take the test, your license will be revoked. When you operate a motor vehicle in Washington state, you automatically give consent to have your breath or blood tested if a law enforcement officer believes you have been driving under the influence of alcohol or drugs. This is Washington’s implied consent law.”
And indeed, under RCW 46.20.308 of state law, you’ll see these words:
“2(a) If the driver refuses to take the test, the driver’s license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver’s refusal to take the test may be used in a criminal trial. …”
A first-time conviction for DUI, by comparison, usually results in a 90-day license suspension.
These statements are clear enough, and many folks have heard them. But they’re not the whole story.
“That might be where some of the confusion lies,” said Alyson Chase, a spokeswoman for the licensing department in Olympia.
Other parts of the DOL’s Web site and RCWs say anyone can request a formal hearing on the license revocation with the DOL, as officer Young’s attorney, Jon McMullen, did soon after his client’s arrest.
If a hearing request is properly filed within 30 days, with a $200 fee, the licensing department won’t suspend the driver’s license until after the hearing is held, officials said.
“It would be the same for you or me,” Chase said. “When anyone requests a hearing, we will not take action until the end of the hearing process.”
Indeed, the hearing request can be filed online at the DOL Web site, and it’s not required that it be filled out by an attorney.
Generally, officials said, the licensing department will schedule a hearing within 60 days. License hearings can be held in Vancouver or even telephonically in a conference call. Drivers can have witnesses subpoenaed if they choose, for a fee.
But it’s no magic bullet.
Filing a hearing request might delay a license suspension when someone is arrested for DUI, even if they refuse the alcohol breath test, officials say. But that doesn’t mean the driver’s license won’t be suspended after the hearing is held.
“I can tell you, from our end, it’s handled very consistently,” said Brad Benfield, another spokesman for the licensing department.
According to RCW 46.20.308 (8), which explains the process, the hearing officer will consider a number of factors: whether the arresting officer had “reasonable grounds” to believe the driver was under the influence of alcohol or a drug; whether the arresting officer gave the driver the required implied consent warnings; whether the driver refused the tests after being told it would mean license revocation; and if the driver took the tests, their results.
Won’t always lose license
Hearing officers also consider whether tests were given lawfully.
Asked whether a driver who refused to take DUI breath tests will always lose his license in such hearings, licensing officials and attorneys said no.
License suspensions can be dismissed in hearings for technical problems, such as an officer checking the wrong box on a form, or a page not sent to the licensing department, Benfield said.
www.columbian.com/news/localNews/11022006news73015.cfm