Dismissal of Schenectady cop’s DWI case upheld
Judge agrees breath test lacked probable cause
SCHENECTADY The city police officer who signed a “last-chance” agreement to remain on the force after being accused of driving drunk has now seen dismissal of his underlying criminal case affirmed on appeal, attorneys said Tuesday.
In an order issued earlier this month, Schenectady County Court Judge Karen Drago upheld an earlier dismissal of the case against Jonathan Haigh, affirming a City Court ruling that police lacked probable cause to arrest Haigh.
Haigh’s attorney, Kevin K. O’Brien, praised the decision Tuesday, saying police simply got it wrong and the courts got it right. O’Brien had argued that two early tests either were incorrectly administered or there were other reasons for failure.
Schenectady County District Attorney Robert Carney, though, said he expects his office to ask for reargument of the case in City Court, saying police did have probable cause to arrest Haigh under other rules. He noted there was an accident and Haigh admitted to driving the car, as well as drinking that night.
Haigh, then 24, of Princetown Road, was arrested by city police the morning of Jan. 8, 2011, and charged with driving while intoxicated, a misdemeanor, and leaving the scene of a property damage accident, a violation.
Haigh was accused of hitting a tree, then driving away. Police tracked a license plate number provided by a witness to Haigh’s father. They went to the address and found Jonathan Haigh.
He was arrested and a subsequent Breathalyzer test showed a blood-alcohol content of 0.11 percent, 31⁄2 hours after the accident.
Haigh was suspended without pay for 30 days after his arrest. That May, he signed a “last-chance” agreement, allowing him to return to the force, under the condition that if he were found guilty of certain misconduct in the future, he would be fired.
In City Court last year, the drunken-driving case was thrown out, with the judge finding failure by police to follow standard protocol in assessing intoxication and that Haigh’s due process rights were violated, according to Drago’s ruling. The City Court judge was Guido Loyola, officials said.
Drago affirmed that ruling, focusing on tests that could have been done but weren’t, including field sobriety tests. They weren’t done even after Haigh told him he had used mouthwash, which could have resulted in a positive reading in a preliminary breath test, she wrote.
The arresting officer, Lt. Eric Clifford, also testified that Haigh did not have impaired motor coordination or speech, Drago wrote.
“The court can only assume that the officer making the assessment believed the defendant could pass such tests, particularly in light of the officer’s testimony that his motor coordination and his speech did not seem impaired,” Drago wrote.
In May 2011, after Haigh signed the last chance agreement, Public Safety Commissioner Wayne Bennett said the city felt comfortable retaining Haigh, citing certain information he couldn’t release. Haigh remains on the force.
Provided the ruling late Tuesday afternoon, Bennett declined comment, saying he needed to consult with Police Chief Brian Kilcullen, who was out of the office Tuesday.
Carney, however, responded Tuesday by calling the decision a confusing one. The hearing, he said, was to suppress the Breathalyzer test.
A Breathalyzer test can’t be used to support probable cause, Carney said. He likened it to a drug case, where prosecutors can’t argue that because drugs were found, the search for drugs was warranted.
“I believe that there was enough probable cause,” Carney said.
He cited Haigh’s admissions that night, and that there was an accident. Haigh admitted to Clifford that he was the driver of the car, that he knew he had slid off the road, but was unaware he’d hit anything, according to the ruling narrative.
Haigh also admitted to Clifford that he’d had five beers and two shots that night, stopping at 3 a.m. The accident happened just after 4 a.m.
Carney also said the fact that there was an accident was enough to require the driver to take a screening test.
Drago noted that Clifford did give a gaze test, but didn’t provide standard instructions. The result was that Haigh exhibited all six indicators of intoxication. Clifford also administered a pre-screen test that was positive for alcohol, but he did not administer other tests at the house or at the station.
There’s no mention in the ruling of the 7:35 a.m. Breathalyzer test that resulted in a 0.11 percent blood-alcohol reading or that Haigh waited more than an hour and a half after his 6:02 a.m. arrest to submit to the test.
Haigh’s defense argued there was insufficient evidence to support probable cause to arrest Haigh, including the improper instructions on the gaze test and that the mouthwash could have affected the pre-screen test. On Tuesday, O’Brien noted the lack of impaired speech or coordination, as well as the improper tests.
“Just because he’s a fellow officer doesn’t entitle him to any less rights than you and me,” O’Brien said.
O’Brien said Haigh was relieved at the decision, believes the courts got it right and holds no animosity toward the arresting officer.