Pinellas Sheriff Bob Gualtieri recently announced a new Human Resources policy that provides for the immediate termination of employment of any Deputy or civilian employee of the PCSO who is convicted of a DUI. In the past, a DUI conviction typically resulted in a seven day suspension without pay.
Such a blanket policy that fails to employ a “case by case” review seems unfair. Even Gualtieri admits that he was motivated to draft the new policy because of three recent unrelated DUI arrests of Pinellas County Deputies. This appears to be a “knee jerk reaction,” which is supported by his comments at the time of the announcement. “I’m tired of it, I’m over it. I’m going to nick it before it goes any further,” Gualtieri stated.
However, in our view, this “zero tolerance” termination policy fails to take into account:
- The unique nature of the conduct leading to the DUI charge
- The individual facts of the Deputy’s DUI case, and;
- The Deputy’s prior law enforcement record.
How a DUI Offense is Vastly Different from Most Crimes
Most criminal offenses require “criminal intent” or “Mens rea,” which is a Latin expression learned by every first year law student. This legal term means that, typically, a prosecutor must prove that the accused “intended” to commit the crime. Keep in mind, that no one has ever awoken in the morning and said to themselves “Today I am going to drive while impaired and violate Florida’s DUI laws.” A DUI offense is therefore rather unique in that it requires no showing that the driver ever “intended” to commit the offense. Rather, a DUI is considered a “strict liability” crime.
The decision to drive which ultimately leads to a DUI arrest is normally not motivated by a desire to violate the law. Truth be told, this offense is committed after an individual consumes alcohol and then simply exercises poor judgment by imprudently getting behind the wheel of his vehicle. The driver’s decision making ability was temporarily impaired when he chose to operate his vehicle. However, his true underlying character and fitness remain undamaged, since in most cases, it was never his intention to disregard the law. In fact, for many people, their “Driving Under the Influence” charge represents the first and last occasion where they were accused of violating the law.
No one sets out to get a DUI. Yet, statistics show that in 2011 alone, over 1.2 million drivers were arrested for driving under the influence. People from all walks of life can find themselves facing this charge. Our office has represented clients facing DUI charges who were employed across a broad spectrum of occupations and professions. The May/June 1998 issue of Tampa Bay Magazine features an article about Attorney Frank Russo. The magazine article pointed out that his clients have included Police Officers, Florida Highway Patrol Troopers, Law Students, a Public Defender and even a State Prosecutor. In the fifteen years since the Tampa Bay Magazine article was published, the demographic makeup of our law firm’s clientele has not changed. We have represented pilots, correctional officers, elected officials, physicians, school teachers, military personnel and even the clergy. No group of persons have become immune or exempt from making poor choices when intoxicated.
The Unfairness of Equating a DUI with Poor Character
Summarily terminating the employment of a Deputy who has been convicted of a theft offense makes perfect sense. The theft would have been intentionally committed. Likewise, the nature of the offense involves untruthfulness or dishonesty. As such, the conviction would directly impact a law enforcement officer’s credibility. Summarily terminating the employment of a Deputy who has been convicted of a drug offense or a crime of violence would also be appropriate. Any involvement with illegal substances or an anger management issue would have made the individual ineligible to originally attend the police academy. From the same standpoint, it should disqualify someone from continued work within the field of law enforcement.
A first time DUI offense is categorized in Florida as neither a misdemeanor or a felony. More accurately, it is considered a “criminal traffic” offense. The question then becomes, does a conviction for a criminal traffic offense, in and of itself, justify the automatic termination of employment when it cannot be said to impact the Deputy’s honesty, credibility or job performance?
After all, many individuals who have held prominent positions of leadership have a DUI charge in their past. Very few would seriously suggest that persons such as George W. Bush or Dick Cheney, for example, were unqualified to hold the top offices in the country, simply on the basis of their DUI arrests.
The Facts of Every DUI Case are Different
Before terminating the employment of a Pinellas County Sheriff’s Deputy for a DUI conviction, it would seem appropriate for Gualtieri to first investigate the circumstances surrounding the consumption of alcohol on the night of the arrest. Had the Deputy just suffered the loss of a close friend or relative? Was he recently made aware of the infidelity of a significant other or just served with divorce papers? Had the Deputy been attending a bachelor party, wedding or other type of isolated celebratory occasion? In the alternative, did the Deputy have a reputation for abusing alcohol?
Likewise it would seem prudent to ask questions about the DUI charge itself:
- Why was the Deputy driving? Had the designated driver abandoned him? Had his cell phone battery died?
- Did the Deputy’s impairment lead to an automobile accident, property damage or injury? In the alternative, was he simply found in “actual physical control” of his vehicle because he recognized that he had too much to drink and had remained in his parked car in possession of the ignition key?
- What was the breath alcohol level of the Deputy? Are we talking about someone who under the old .10 BAC law would have not been guilty of the offense, or did he have an enhanced breath test reading of a .15 BAC or above?
- Did the Deputy refuse the breath test and knowingly jeopardize his future ability to operate a police cruiser while on duty?
- How did the Deputy perform on roadside field sobriety tests? Was he highly intoxicated or slightly impaired?
- Did the Deputy attempt to influence the investigating officer’s decision whether to arrest him by improperly asking for a “professional courtesy?” Or in the alternative, can it be said that he was polite, respectful and cooperative throughout the police investigation?
- Was the Deputy remorseful for his conduct?
None of the aforementioned points of mitigation excuse a Deputy who is found to be on the wrong side of a DUI. His decision to drive while impaired was a violation of the law and employment ramifications are appropriate. Nevertheless, evaluating the facts of each DUI case will reveal that they can greatly differ. Gualtieri is quoted as saying “The stakes need to be higher because the stakes aren’t high enough.” However, terminating employment is the most extreme penalty that Gulatieri can hand out. That’s not just raising the stakes, that’s going, “all in.” Given the vastly different set of facts that each DUI charge can present, it doesn’t seem fair just to take a “one size fits all” approach.
A Bad Policy that Can Hurt Good Cops
Training a police officer is an expensive public financed investment. Some highly experienced law enforcement officers are greatly valued by their departments. Bottom line... good, honest and effective police officers can be invaluable. If on the other hand, we are dealing with a Deputy who has already accumulated a disciplinary record, is lazy, or non productive, enough said. But, it would seem foolish to cast aside an officer with an exemplary career on the basis of a single error in judgment.
You Can Fire Him, But Not Me!
A recent News Channel 8 Poll conducted by Survey USA found that 62% of persons in the Tampa Bay area agreed with the new Pinellas County Sherriff's Office termination of employment policy. However, those same persons believed that other employers should not be permitted to fire an employee solely on the grounds that they were convicted of a DUI. In other words, “its ok to take his job, but don’t jeopardize mine.” What these people don’t recognize is that taking such a position can be a “slippery slope.” Minimum mandatory statutory penalties for a DUI in Florida are already comprehensive and tough. When a public employer sector starts imposing bright line rules that require automatic termination of employment, it is only a matter of time until the private sector begins to follow suit. A DUI conviction already carries with it hardships associated with the time spent in jail, driving restrictions, significant fines, attendance at a twelve hour instructional course, community service hours, vehicle impoundment and a probable increase in automobile insurance premiums. Summarily terminating that person’s employment and effectively ending their career in “a rush to judgment” benefits neither the public or the integrity of the law enforcement agency.
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