J
joe shmoe
Guest
What is the name of your state? California
While working as a law enforcement officer, my partner and I were dispatched to an auto accident. After arriving at the scene of the collision, it was determined that one of the parties was operating his vehicle under the influence of an alcoholic beverage. I subsequently arrested him for the specific vehicle code section. Prior to his arrest, the subject submitted to two field sobriety tests, one of which was the Preliminary Alcohol Screening test (PAS). The PAS test is not an implied consent test, which means it can be refused. It is a test where the breath of a subject is analyzed to determine the presence of alcohol not ascertain its concentration. The subject was then transported to the local jailing facility for further chemical testing, which the subject refused. On a field note, I documented the subject’s refusal to the testing. The actual arrest report was not completed for nearly three days following the incident. To complete the report I referred to my field notes that stated “refusal” and documented inaccurately a PAS refusal. The reports were complete with incriminating facts against the subject.
During the course of the evening the subject and I discovered that we had been associated with a Fraternal Order. The subject had items in his vehicle that signified his membership. I had not been active for sometime (nor had I resumed), noticed them and while enroute to the jailing facility discussed the Fraternity with him. That was the only common bond between us. After this evening I never had any further contact with him.
Here’s where everything gets ugly. Nearly four months go by and then the subject’s counsel makes a claim of inappropriate conduct; i.e. due to our Fraternity bond I told him to refuse all tests. Based on this claim, the District Attorney’s office dismissed the criminal charges against the subject and administrative and criminal investigations of me were conducted. No criminal charges were filed against me because there was no likelihood that the people would secure a conviction. An adverse action of dismissal was then served. There were major distractions and coupled with a report that was written some days after the subject’s contact. Served as factors that led to the omission of facts.
This is based on the premise that I colluded and conspired with the subject to thwart justice.
At the scene it was clear that the subject was drunk and this was visible to all. If I were to risk my career, I would have to do it in front of a lot of potential adverse witnesses. The subject “claims” at different points in time in his interview with the department that I told him to refuse all tests no matter what was said or done. If I were to give him a break after I told him to refuse all test then why compel him to take a test in front of everybody and why did he acquiesce. The subject later claimed that I assaulted him by squeezing the back of his neck with my hand and shoved the intoxilizer mouthpiece in his mouth with my other hand and he was forced to take an intoxilizer test at the jail. The criminalist who maintains the intoxilizer showed that no test was ever given. It is crystal clear the subject was lying.
The elderly subject is the sole driver in his household and pursuant to the vehicle code section his refusal to submit to a chemical test would cause him to lose his license for one year. The taking a test would not. The confusion arises in that a PAS test was given and a chemical intoxilizer test was not. The subject claimed that both tests were taken. Due to his level of intoxication he truly does not recall which test he took, but he knows that claiming that he took the test would lessen his penalty. Unfortunately, my omission is the stepping-stone to this claim.
Following the notice of dismissal an appeal was filed with the personnel board. At that hearing the following was discovered:
The subject stated that he went into a “self preservation mode and did or said whatever possible” to lessen his criminal liability. His first attorney did not believe him and refused to represent him following his DMV hearing. He incurred substantial large charges for towing and storage of his vehicle. He was arrested and caused him to retain the services of attorneys, at the cost of some $7000. He acknowledges his drinking and equivocates, as was all of his testimony, as was all of his testimony, as to whether or not he was under the influence. It is of interest that the subject brings it to his attorney’s attention to help resolve the case in his favor after a criminal complaint was filed.
As second hand information came to light, the District Attorney’s office through a Deputy District Attorney took the path of least resistance, dismissed the case against Early, and stated I was dishonest. Based on the claim brought to her by a former co-worker (subject’s second atty.), now a criminal defense attorney and along with the omitted PAS results the case was dismissed. When on thinks of filing a false police report one imagines that evidence is added to or omitted from for the purposes of enhancing a prosecution, a la the LAPD Rampart scandal. This was not the case. In fact, this prosecution could and should have gone forward because the subject was not arrested for blood alcohol concentration above .08%. He was appropriately charged with the subsection, which is driving under the influence of a drug or alcohol. There were plenty of witnesses that the DDA was supplied that would have allowed the prosecution to go forward even without my testimony, or most certainly rehabilitate my testimony if necessary. The DDA said her actions were only based on a “gut feeling”. All the DDA had was a claim of impropriety from a criminal defense attorney. The DDA did not conduct an independent investigation; never spoke to the subject, in fact, the subject never spoke to anyone until the charges were dismissed; never talked to me or my partner to assess our creditability; never spoke to any of the witnesses that were supplied; and she never read the accident report. The DDA also stated that she would have to analyze future cases on a case by case basis (isn’t this the standard for any officer?). She further stated that she “might have to make some disclosures” about me and this case to defense attorneys in the future.
Trust me, this is just a thumbnail sketch of my situation and I am curious of what legal minds might think of this before I decide to seek the services of an attorney. Is this wrongful termination, defamation of character, slander and libel?
While working as a law enforcement officer, my partner and I were dispatched to an auto accident. After arriving at the scene of the collision, it was determined that one of the parties was operating his vehicle under the influence of an alcoholic beverage. I subsequently arrested him for the specific vehicle code section. Prior to his arrest, the subject submitted to two field sobriety tests, one of which was the Preliminary Alcohol Screening test (PAS). The PAS test is not an implied consent test, which means it can be refused. It is a test where the breath of a subject is analyzed to determine the presence of alcohol not ascertain its concentration. The subject was then transported to the local jailing facility for further chemical testing, which the subject refused. On a field note, I documented the subject’s refusal to the testing. The actual arrest report was not completed for nearly three days following the incident. To complete the report I referred to my field notes that stated “refusal” and documented inaccurately a PAS refusal. The reports were complete with incriminating facts against the subject.
During the course of the evening the subject and I discovered that we had been associated with a Fraternal Order. The subject had items in his vehicle that signified his membership. I had not been active for sometime (nor had I resumed), noticed them and while enroute to the jailing facility discussed the Fraternity with him. That was the only common bond between us. After this evening I never had any further contact with him.
Here’s where everything gets ugly. Nearly four months go by and then the subject’s counsel makes a claim of inappropriate conduct; i.e. due to our Fraternity bond I told him to refuse all tests. Based on this claim, the District Attorney’s office dismissed the criminal charges against the subject and administrative and criminal investigations of me were conducted. No criminal charges were filed against me because there was no likelihood that the people would secure a conviction. An adverse action of dismissal was then served. There were major distractions and coupled with a report that was written some days after the subject’s contact. Served as factors that led to the omission of facts.
This is based on the premise that I colluded and conspired with the subject to thwart justice.
At the scene it was clear that the subject was drunk and this was visible to all. If I were to risk my career, I would have to do it in front of a lot of potential adverse witnesses. The subject “claims” at different points in time in his interview with the department that I told him to refuse all tests no matter what was said or done. If I were to give him a break after I told him to refuse all test then why compel him to take a test in front of everybody and why did he acquiesce. The subject later claimed that I assaulted him by squeezing the back of his neck with my hand and shoved the intoxilizer mouthpiece in his mouth with my other hand and he was forced to take an intoxilizer test at the jail. The criminalist who maintains the intoxilizer showed that no test was ever given. It is crystal clear the subject was lying.
The elderly subject is the sole driver in his household and pursuant to the vehicle code section his refusal to submit to a chemical test would cause him to lose his license for one year. The taking a test would not. The confusion arises in that a PAS test was given and a chemical intoxilizer test was not. The subject claimed that both tests were taken. Due to his level of intoxication he truly does not recall which test he took, but he knows that claiming that he took the test would lessen his penalty. Unfortunately, my omission is the stepping-stone to this claim.
Following the notice of dismissal an appeal was filed with the personnel board. At that hearing the following was discovered:
The subject stated that he went into a “self preservation mode and did or said whatever possible” to lessen his criminal liability. His first attorney did not believe him and refused to represent him following his DMV hearing. He incurred substantial large charges for towing and storage of his vehicle. He was arrested and caused him to retain the services of attorneys, at the cost of some $7000. He acknowledges his drinking and equivocates, as was all of his testimony, as was all of his testimony, as to whether or not he was under the influence. It is of interest that the subject brings it to his attorney’s attention to help resolve the case in his favor after a criminal complaint was filed.
As second hand information came to light, the District Attorney’s office through a Deputy District Attorney took the path of least resistance, dismissed the case against Early, and stated I was dishonest. Based on the claim brought to her by a former co-worker (subject’s second atty.), now a criminal defense attorney and along with the omitted PAS results the case was dismissed. When on thinks of filing a false police report one imagines that evidence is added to or omitted from for the purposes of enhancing a prosecution, a la the LAPD Rampart scandal. This was not the case. In fact, this prosecution could and should have gone forward because the subject was not arrested for blood alcohol concentration above .08%. He was appropriately charged with the subsection, which is driving under the influence of a drug or alcohol. There were plenty of witnesses that the DDA was supplied that would have allowed the prosecution to go forward even without my testimony, or most certainly rehabilitate my testimony if necessary. The DDA said her actions were only based on a “gut feeling”. All the DDA had was a claim of impropriety from a criminal defense attorney. The DDA did not conduct an independent investigation; never spoke to the subject, in fact, the subject never spoke to anyone until the charges were dismissed; never talked to me or my partner to assess our creditability; never spoke to any of the witnesses that were supplied; and she never read the accident report. The DDA also stated that she would have to analyze future cases on a case by case basis (isn’t this the standard for any officer?). She further stated that she “might have to make some disclosures” about me and this case to defense attorneys in the future.
Trust me, this is just a thumbnail sketch of my situation and I am curious of what legal minds might think of this before I decide to seek the services of an attorney. Is this wrongful termination, defamation of character, slander and libel?