During a three-day hearing on April 7, 2023, and May 25-26, 2023, HPOU Staff Attorney David (“Dave”) Thomas, represented a Vehicular Crimes Division (“VCD”) Sergeant in his arbitration appeal of a 12-Day Suspension, which was issued on September 28, 2022, by Chief Finner. The Sergeant was alleged to have violated General Order 200-08 (Supervisory Conduct) after he responded to the scene of an auto-pedestrian crash that resulted in the motorist being released from the scene. After leaving the scene of the auto-pedestrian crash, the motorist was subsequently involved in a second crash involving a parked car and was arrested for DWI. The City alleged that the Sergeant failed to ensure at the first scene that the motorist was thoroughly investigated and arrested for DWI. At the hearing, the City was represented by HPD Attorneys Kyle McCauley, Liane Guthery and Rhonda Reece. The case was heard by Independent Hearing (“IHE”) Examiner William E. Hartsfield.
Twelve witnesses (seven by the City and five by the Union) along with numerous exhibits were proffered by the parties during the three-day hearing. The evidence thoroughly repudiated the City’s arguments.
At the time of the incident, when the Sergeant responded to the first scene, a possible fatal accident involving a pedestrian, the pedestrian had already been transported to the hospital and the driver of the motor vehicle was still at the scene. The Sergeant learned from scene investigators that the driver seemed “a little groggy,” had made inconsistent statements regarding when he had gone to bed and woken up and had made a statement regarding his driving abilities that was somewhat unusual. The Sergeant spoke with an on-call DRE officer over the phone and was directed to have the HGN exam performed. The HGH exam was administered by another officer on scene and the Sergeant was informed that the test did not reveal any signs of impairment. In addition, both through his own personal observations and information he was provided by other officers, the Sergeant was made aware of at least twenty (20) separate clues that supported the conclusion that the driver was not impaired at the initial scene and that there was no probable cause to arrest the driver.
The City asserted that a blood test of the driver taken after the second crash, which was positive for three different narcotics, was dispositive that that the Sergeant failed to ensure that a complete and thorough investigation was conducted at the first crash scene. However, the City failed to show that the driver’s blood test established that the motorist was, in fact, actually intoxicated at the first scene or that the driver showed adequate signs of impairment at the first scene. To the contrary, the Union demonstrated that there were marked, material differences between the motorist’s behavior at the first and second scenes, which supported the Union’s position that the Sergeant did not have probable cause to arrest the motorist for DWI.
The evidence further disputed one of the most egregious assertions by the City against the Sergeant, that the motorist was not prosecuted for the death of the pedestrian in the initial crash due to the Sergeant’s alleged failures. The Union was able to demonstrate through expert testimony that fault in the crash could not be determined and, without proof of the motorist’s fault, the motorist would not have been prosecuted for the pedestrian’s death even if it were shown that the motorist was intoxicated at the first scene, which the City failed to show. Further, The Union systematically pointed out that the Sergeant performed all the applicable on-scene supervisor’s duties as required by Department policy.
The arbitrator ultimately agreed with the Union’s position and issued an award on July 31, 2023, overturning the 12-Day suspension in its entirety.
Author David Thomas, Staff Counsel, HPOU
Published October 9, 2023