Ga. sheriff in hot seat after botched DUI

His deputies arrested a county chairman whose BAC turned out to be .000

By David Wickert, Andria Simmons and Patrick Fox
Atlanta Journal-Constitution

GWINNETT COUNTY, Ga. — Gwinnett County Sheriff Butch Conway apologized Thursday for charging County Commission Chairman Charles Bannister with DUI, and he scrambled to explain how his department mishandled the incident.

Bannister was exonerated three days after his arrest when a second alcohol test came back with the same result as the first: The chairman did not have alcohol in his system Monday night and was not driving under the influence when a sheriff's deputy pulled him over.

Two days after standing by his deputies' actions, Conway on Thursday admitted that they made mistakes.

"Police and deputies are not infallible," he said at a news conference at the county jail. "They made a mistake. That's obvious on its face."

The sheriff said he would investigate what went wrong. But Bannister's attorney and others say they want an independent investigation.

Gwinnett County District Attorney Danny Porter said he expects to be asked to investigate the handling of the case.

The three-day uproar over Bannister's arrest began when an off-duty sheriff's deputy got a tip from a friend that the chairman was drinking at the Cafe Hot Wing restaurant near Lilburn and was driving a county vehicle.

Conway said Thursday that he got a call from a supervisor before Bannister was arrested and got several updates throughout the evening.

"I told the deputies to do their job," he said. "That would be my response next time."

After staking out the restaurant, a deputy watched Bannister get into his car and --- according to the arrest report --- watched him weave from side to side and cut off another vehicle, nearly causing an accident.

The deputy reported smelling a strong odor of alcohol on Bannister's breath and said the chairman failed three field sobriety tests.

But Bannister insisted he had only two beers over two hours and was sober. And a breath test administered at the jail showed his blood alcohol content to be .000.

The breath test was administered on a machine called the Intoxilyzer 5000. It was last inspected May 5. It passed every diagnostic test and was calibrated correctly, said Officer Brian Kelly, a Gwinnett police spokesman.

A Gwinnett police officer and a state trooper who inspected the Intoxilyzer 5000 after Bannister's arrest also concluded it was in good working order, and the machine was put back into service the following morning, Kelly said.

According to the arrest report, deputies questioned the results of Bannister's breath test because they were "inconsistent with someone who had drunk a beer, as he [Bannister] admitted to at the scene of the pullover and at the jail."

The sheriff originally expected it could take several weeks to receive results of a blood test. Instead it took days.

Porter said the blood test corroborated the fact that the Intoxilyzer 5000 is a reliable machine. The instrument has to be inspected quarterly by the GBI's Implied Consent Unit.

If its readings are found to be off-base, state rules say the prosecutor must be notified. Porter said he has never received notification that the machine's results were wrong.

Kelly said that, in general terms, if an officer does not suspect the use of illegal or prescription drugs, he "wouldn't request a blood test."

"We've been trained and taught and experience has shown us that we can rely on these machines," he said.

Conway said he never thought the machine itself was the problem. He said the test could have been administered improperly.

On Thursday Bannister issued a statement expressing relief.

"As I already knew, the blood samples analyzed by the Georgia Bureau of Investigation have proven that I was not under the influence of alcohol or any other substances on the night of my arrest," he said. "I have been completely exonerated and am relieved that the truth has now been revealed."

In his apology, Conway denied that the incident was politically motivated, as some have speculated.

The sheriff said his deputies relied too much on the two witnesses who reported Bannister was drinking.

One of those witnesses, David NeSmith, said in a Facebook message Thursday that there was no vendetta against Bannister. He didn't even know it was Bannister initially, he said.

NeSmith said he saw a man arrive at the restaurant in a county vehicle. He said he saw the man drinking beer and was concerned, so he called his friend, the sheriff's deputy. "There was no setup," he said.

Conway said his deputies may have gone to extra lengths to gather evidence, knowing Bannister is the commission chairman.

Conway said he plans to investigate what happened. But unless he finds the deputies acted out of "animosity," he does not anticipate disciplinary action.

Instead, Conway said additional training is in order. And he wants to install cameras in all Sheriff's Department vehicles (there was no camera in the car that pulled over Bannister).

Alan Mullinax, Bannister's attorney, said he has no evidence that "the sheriff's fingerprints are on what happened." But he called for an independent investigation.

Among the questions Mullinax wants answered:

Why did the officer say he detected a strong scent of alcohol when tests showed there was little or no alcohol in the chairman's blood?

Why wasn't Bannister charged with a lane violation if the deputy saw him weaving?

Why did the deputy administer sobriety tests not recommended for people of Bannister's age (71)?

Mullinax questioned the qualifications of sheriff's deputies to conduct DUI investigations. Though they are certified law enforcement officers, their job primarily involves running the jail, providing courthouse security and serving warrants.

He said the deputy who pulled Bannister over should lose his job.

At the news conference, Conway said he does not think his deputy lied.

He acknowledged his department could have referred the case to the county Police Department, which usually would handle DUI complaints in unincorporated areas. But he said the Police Department ultimately reports to the Board of Commissioners and Bannister.

"I didn't think that would be fair," Conway said. "... My deputies have state arrest powers. They're certified and well-trained."

When asked whether the Police Department would have difficulty investigating Bannister, since the police chief reports to the Board of Commissioners, Kelly, the department's spokesman, said, "I would categorically say that's not true."

Conway did not return phone calls seeking additional comment on the way his department handled Bannister's arrest.

Mullinax isn't alone in calling for an independent investigation.

"It's going to take a good investigation to convince me it was not a setup," Lilburn Mayor Diana Preston said. "It needs to be a third-party investigation and not done by the Sheriff's Department."

"I can only tell you that under the Georgia law, the sheriff is authorized to enforce the law," Porter said. "It's really a judgment call by the sheriff as to whether he initiates an investigation on his own or turns it over to an agency that has more resources."

Mullinax wouldn't rule out future legal action over the incident. But he said Bannister for now is focused on his duties as chairman, including a two-week trip to China that begins Sunday and is paid for by the Gwinnett Chamber of Commerce.

What they said

Gwinnett County Commission Chairman Charles Bannister:

"I have been completely exonerated and am relieved that the truth has now been revealed."

Copyright 2010 The Atlanta Journal-Constitution

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