Kenneth Desormes of New York  expressed his contempt, or perhaps dismay, at his Breathalyzer test results by attempting to scarf them down.  This creative plan cover-up plan didn’t pan out, however, and the police served him up a steaming hot dish of new charges.

Police reported they smelled alcohol on Madison’s breath and that he’d stumbled, mumbled, and nearly fell down. He told authorities he’d consumed “a few” drinks that evening. In a May 30 interview with members of the Professional Standards Office, Madison admitted to actually having more than a few, more like between 10 and 12 drinks.

Austin Fire Department Chief Rhoda Kerr’s action against Madison marked a turning point, punishments finally have been getting more steep after being slaps on the wrists to date.

A pattern may be emerging, as Madison is the sixth firefighter suspended for a DWI since January of 2013.  He is, however, the first to incur a be punished with more than a 90 day suspension.  Even the 90 day suspension is rare as punishment, and only was doled out to firefighter James Doyle, who was facing his third DWI charge since 2006.  Doyle agreed to alcohol counseling, randomized testing, and a one-year probation period, as well as assuming the understanding that another violation would result in an indefinite suspension.

Otherwise, Kerr has mostly issued a series of suspensions stretching between 10 and 15 days.  This  despite firefighters reportedly admitting driving after consuming upwards of 10 alcoholic beverages in a sitting.

Madison’s suspension is the second DWI-related sanction handed down to members of the AFD since Kerr’s November 2013 memorandum informing her staff that “prior efforts, including temporary suspensions of 10 days, were not having their intended and desired effects, to wit, to curtail alcohol abuse by Department Personnel, particularly driving while intoxicated.” In the memo – apparently distributed by Kerr because 38% of the AFD suspensions mandated between Feb. 1, 2009, and Oct. 4, 2013, had been DWI-related – Kerr went on to explain that “future first-time ‘driving while intoxicated’ violations would result in a disciplinary action, up to and including indefinite suspension.” Madison reportedly acknowledged receipt of this memorandum – but still decided to drive drunk.

Kerr’s explanation does not mention of the 60-day suspension levied on firefighter Randlall Black.  Black was stopped for speeding on I-35 and subsequently arrested for DWI – though in her initial memorandum sent out to the department, Kerr wrote that “every alcohol related discipline case involving sworn and non-sworn will be judged on its own merits.

“I will decide the appropriate disciplinary action, which may include days off up to and including the indefinite suspension/termination of the employee.”

How Chief Kerr differentiates between what requires 60 day suspension and what an indefinite suspension is unclear, though a comparison of the two memos suggests that Madison – who could barely stand, and had crashed his car so hard into a guard rail that he broke his front right axle – was significantly more blitzed than Black, whose rap sheet in this instance entails little more than “a strong odor of an alcoholic beverage” on his breath.

Kerr’s appears to be addressing a pretty widespread problem, for AFD. It also may indicate a crackdown by Aus­tin Police Department Chief Acevedo. In early April, Acevedo distributed a dramatic video to departmental personnel (copying local media) announcing a new, zero-tolerance policy against drunk-driving police officers. First-time offenders won’t just receive temporary suspensions anymore, Acevedo asserted. Each suspected offender stands to be fired, whether or not they’re found guilty in a court of law.

With news stories of the police beating, choking and shooting people – maybe Austin FD poses a different hazard to the public, on our roads.  They are all of course innocent until proven guilty, but the pattern is real.  It seems like many firefighters in Austin are partying quite a bit.

Arrested For a DWI in Texas?

If you’ve been accused of Driving While Intoxicated, it is crucial that you act quickly.

If you are facing a DWI charge contact attorney Tristan LeGrande by calling 281-684-3500.

HOUSTON DWI ATTORNEY TRISTAN LEGRANDE

LEGRANDE LAW

281-684-3500

So how exactly has this case (Prado Navarette v. California) eroded our 4th amendment rights?

A brief summation of your 4th amendment rights in this context may be instructive (I urge any of my colleagues seeing need for additions or alterations to this summation to weigh in).

The Fourth amendment permits investigative stops when a police officer, taking into account a totality of the circumstances, has a specific and objective basis for suspecting the person stopped has engaged in or is about to engage in criminal activity.  See United States v. Cortez, 449 U.S. 441.  The court has determined in numerous cases that anonymous tips lack the veracity to be relied upon to substantiate reasonable suspicion.  However if there are sufficient indicia of reliability, the court has held that it is enough.

Somehow the court found that an anonymous caller, with a vehicle description was good enough.  This is despite the fact that when the Defendants vehicle was actually being followed by the police, they committed no traffic offenses and provided no additional reasonable suspicion for the officers to believe, by their own observations, that the person could be driving while intoxicated.  The court reasons that this does not dispel the reasonable suspicion for the DWI – what, because all sloshed drivers can drive perfectly when they know the police are following them?  If that were true, I would have a lot fewer clients.

And what else did the court hang its hat on that gave this anonymous caller sufficient indicia of reliability for the call to be the sole basis for the reasonable suspicion for the investigative stop of the defendant?  The fact that the vehicle of the given description was found close to where it was reported it had been.

That’s it.  You can call 911 and give an anonymous tip, state the vehicles description and license plate number and the vehicle will be stopped.

The implications of this are frightening.  Got a grudge against a former spouse that likes to go to the  bars?  Just phone it in some Saturday night, you don’t even have to give your name, just provide the plate number and what local speakeasy your former spouse likes to frequent and presto–you can get them stopped!

Let’s not forget the police officers…should a rouge officer decide he needs to pull over a vehicle and search it without those pesky constitutional requirements, all he has to do is get himself a burner phone and call in a location, vehicle description and license plate number…anonymously…and presto again, he has orchestrated a rouse to pull over anyone he so desires without any justification whatsoever.

View the full supreme court opinion here:

 PRADO NAVARETTE ET AL. v. CALIFORNIA