The Boston Globe did a big story on the high rate of drunk driving incidents among police officers. There is some research that suggests that police officers may be even more likely to drive drunk than members of the general public. But there is little question that police officers who drive drunk are far less likely to face any criminal consequences or impact to their employment if they are charged, and may very often completely avoid being charged at all.
Cop privilege and “professional courtesy”
There is a disturbingly routine practice of cops looking the other way when a cop pulls over another cop for drunk driving. The Globe reports that is common practice for that officer to be offered a ride home instead of investigated or arrested, and for the stop to never be officially reported.
There is no question that no one but a fellow cop is ever getting a ride home instead of a ride to jail if he is suspected of an OUI. And the truth is, we have no idea how often this happens, since it is kept off the books.
A Massachusetts Civil Service Commission report says that “Every police officer who testified before the Commission testified that the routine and customary practice when a stop is made on a fellow police officer, is to show professional courtesy and not call in the stop”.
How aggressively are cop DUI arrests investigated?
When an officer actually is arrested and charged, you have to wonder how aggressively the police will even investigate the case.
In an OUI prosecution, the primary evidence against an accused drunk driver is the arresting officer’s witness testimony - as documented in the police report, and in testimony at trial.
I’ve read thousands of OUI police reports, and they nearly always have the same standard descriptive elements: the defendant was unsteady on his feet, he had glassy and bloodshot eyes, and his speech was slurred.
But if a cop is forced to arrest another cop, it would be easy enough for him to soft-pedal the facts in the report, and try not to hurt the defendant on the stand if it goes to trial.
If the police officer as prosecution witness isn’t doing his job as he would with any other drunk driving arrest, it will be much more likely to come back as a not guilty. Cops are going to have each others' backs, right or wrong.
Penalties and job impact are minimal
Another huge advantage that police have if they are actually arrested, charged, or convicted of an OUI is that their unions and the civil service board give them protections afforded to very few other employees.
When a cop gets a six month license suspension for refusing to take a breath test, they almost always find a way to give him desk duty for that time. Few small businesses would be willing or able to shuffle job responsibilities like that to accommodate an employee.
The Globe also noted the high rate of breath test refusals in drunk driving arrests among police officers. “You can’t expect that John Q. Private Citizen is going to give up his or her constitutional rights [against self incrimination] just because they happen to be a police officer,” says Colonel Timothy Alben, the head of the State Police.
That is absolutely true. The Massachusetts Supreme Judicial Court has explicitly stated that a breath test refusal should not and cannot be used against you in court. Unfortunately, few other employers give that kind of consideration to people facing license loss via administrative penalties for refusal imposed by the Registry.
The power of police unions and civil service protections
There is really no management vs. labor divide in the police ranks. The bosses making the decisions about these infractions are part of the brotherhood, and always look to protect their own.
What other worker gets a chance to be reassigned, or given paid leave while a criminal charge is adjudicated?
One could argue that the unions are simply too powerful. But I would make the case that the average worker in this country actually has far too few protections, and the law and administrative policies of the RMV are unfair, particularly in first offense cases, since only a minority of people ever have a problem again.
It is far too easy for the average person to lose their job due to license suspension before they ever get a chance to defend themselves in court. A Constitutionally protected breath test refusal is no protection against losing your job. Unless you are a police officer.
We must find a way to make police more accountable, and end “professional courtesy.” That practice should be investigated and penalized.
But we should also broaden job protection for license suspensions, and facilitate full access to Constitutional protections for all citizens accused of a DUI, or any crime.
Russell Matson is a drunk driving and criminal defense lawyer in Braintree, MA. His web site is http://www.madrunkdrivingdefense.com