Arelis Hernandez of the Orlando Sentinel just recently posted an article about officer discretion here in central Florida, which can be found at this link. The article is entitled “Why was your car pulled over, it might be officer discretion.”
The article focuses on a Mount Dora police officer who pulled over a Lake county Assistant State Attorney of all people – who was allegedly under the influence of alcohol or drugs, and refused field sobriety exercises when requested. The officer’s basis for the stop was speeding and swerving, yet the article does not allege if there were any other factors such as odor of alcohol, bloodshot eyes, etc. that gave rise to suspicion of DUI and the request for field sobriety exercises.
The kicker here is that the officer, instead of arresting the driver for DUI based on his observations, decided to use his “discretion” and give the assistant state attorney a ride home! The officer’s reasoning for the use of this discretion is he lived 5 minutes away, was cooperative, and he thought notifying his boss would get him in more trouble than actually arresting him for DUI.
Now, every single one of us has been the downtrodden victim or bright-eyed victor of officer discretion, whether it be in getting off with a written warning, a decision to pull over the car to your right versus you, and so forth. The article points out great points and quotes about the effectiveness and practical use of officer discretion. In fact, each agency usually has rules and procedures outlining the officer’s roles and duties.
The case at hand is a perfect example of when officer discretion goes bad. The officer’s decision to let the assistant state attorney off, not arrest him, and more so DRIVE HIM HOME is beyond any reasonable application of officer discretion. This is a case where the officer was trying to help a prosecutor out,a prosecutor that he may have to work with countless times in future cases. This is not a case of officer discretion, but more of officer corruption. What is even more unsettling is how the officer knew the driver was an assistant state attorney? The article does not mention it, but did the officer know the assistant state attorney? Were they acquaintances? Friends? Or did the assistant state attorney offer this tidbit of information up to the officer when he was pulled over? The last possibility is the most troubling. In my time as an assistant state attorney in the same circuit where this occurred, I learned very early in my career that using my position or title as an assistant state attorney for any type of personal gain was a horrible aberration. As an officer of the court, I never once stepped into that gray area and if this particular assistant state attorney did take that leap, then appropriate action should be rendered.
I have seen countless DUI clients come through in my time as an attorney that were “just 5 minutes away from home.” Take a guess on how many times those clients were let off and then driven home by the officer? I have had countless clients be completely cooperative with the officer, yet still thrown into the back of the police cruiser. Bottom line is, while officer discretion is a tool that can benefit some and detriment others, there should never be a special category of officer discretion allowing the officer’s friends, colleagues, or assistant state attorneys “off the hook” when it comes to enforcing the laws of the State of Florida.
- The Sunshine Lawyer – “Straight, Unlaced, and Always Sunny”
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