By John Annese
Staten Island Advance
NEW YORK — All too often, cops follow an unwritten rule if they’re arrested for driving while drunk - don’t take the blood alcohol test, no way, no how.
As the circumstances surrounding the vehicular manslaughter arrest of NYPD Officer Andrew Kelly starkly illustrated this weekend, police officers often are unwilling to take a Breathalyzer test, or submit to a blood test, after they’ve been pulled over for drunken driving or gotten into a car crash.
Several law enforcement sources, speaking on condition of anonymity, say they’d never blow into a Breathalyzer - the risk of producing scientific evidence of inebriation is too great, and a drunken-driving conviction means they’ll have to give up their badge.
“If you think you’d going to fail, you don’t take the test,” said one source.
Kelly, a seven-year veteran of the NYPD assigned to the 68th Precinct, struck and killed Vionique Valnord, the 33-year-old daughter of a Brooklyn pastor, as she crossed the street in the borough’s Flatlands neighborhood.
Kelly refused to take a Breathalyzer test, and, the Daily News reported, it took authorities more than seven hours to administer a blood test, which showed no trace of alcohol.
Kelly’s four passengers in his SUV left the scene of the crash. One of them, Michael Downs, a fellow police officer living in Eltingville, later turned himself in. Downs hasn’t been charged criminally, but he has been suspended, and one police source said it’s likely he’ll lose his job.
Kelly’s decision to refuse a Breathalyzer is hardly unique among police officers. “I would recommend to anybody, don’t take the test. It’s never going to help you, and it’s just going to strengthen the case against you,” said one veteran officer. “How do you know you’re going to pass? They give false readings. It’s not infallible.”
Defense lawyer Mario Gallucci, who handles about70 drunken-driving cases a year, concurs.
A refusal means an automatic year-long license revocation, but Gallucci said it leaves a defendant with options.
“If you don’t take the test, there’s no machine that’s going to be able to testify at a trial,” he said.
In respect of the revocation, which is a state Department of Motor Vehicles rule, he said, “You’re entitled to a hearing, and we win those hearings often.”
Still, the decision to refuse a test doesn’t always get a police officer out of hot water, as two Staten Island cases show.
In May 2007, Officer Gary Chin slammed his car into a boulder at the end of Hylan Boulevard, severely injuring his female passenger. He refused a blood alcohol test on the scene but ended up with a 90-day jail sentence, five years of probation and a one-year license revocation. He also lost his job as a police officer.
And in September 2007, Officer Richard Reebe crashed into a parked construction vehicle in West Brighton, then left the scene “without identifying himself and without exhibiting his license or insurance information,” according to court papers. When his fellow officers caught up with him, he refused a blood alcohol test.
That following January, he pleaded guilty to driving while intoxicated, in exchange for a conditional discharge, a $500 fine and a six-month revocation. He, too, lost his badge.
Seth Katz, a defense lawyer who specializes in motor vehicle and drunken-driving cases, actually advises the opposite of what’s considered conventional wisdom by police - take the test, especially on Staten Island, unless you already have a conviction on your record, or you’re in a crash.
The borough’s district attorney, Daniel Donovan, takes a hard line against drunken driving, and a refusal typically means prosecutors won’t allow a defendant to plead to a lesser charge.
“They don’t want to dispose of them as violations,” Katz said, adding that prosecutors might be more amenable to a better deal if a defendant doesn’t refuse a test.
With police officers, Katz said, the “blue wall” usually works to a cop’s advantage in a drunken-driving case. “The ball will be dropped along the line.”
Donovan, for his part, sees the Kelly case as clear reason to change the law in New York state to mandate blood tests on the spot at drunken-driving crashes. In a case with an accident or severe injury, authorities can take blood from an unconscious driver, Donovan explained, but if the motorist is conscious and refuses, police need to get a warrant first.
“I think if somebody refuses, we should be able to compel it automatically,” Donovan said. “We have to prove that they’re above the legal limit at the time of the occurrence.”
Copyright 2009 Staten Island Advance