Wednesday, November 25, 2009

Maybe you shouldn't assume the officer is telling the truth

I don't usually blog on license revocation proceedings, but I thought this was a pretty remarkable decision that Roger L. Falk won in Baconrind v. KDOR, with Judge Wheeler vacating an administrative license revocation based on failure to allow independent testing. The main issue was a factual dispute whether Mr. Baconrind had willfully refused testing and/or had requested independent testing. Judge Wheeler was fairly blunt in his comments about the trooper and the KDOR attorney:
Before making a final analysis, comment on the manner of presentation of the evidence is necessary. The Kansas Department of Revenue's counsel stipulated to the admission of Plaintiff's Exhibit 1, the video tape of the car stop and subsequent events, even though counsel admitted he had not reviewed the same. Counsel stated to the court that he was too busy handling these types of cases to have reviewed the case in preparation for the trial of this case. This was followed by the presentation of evidence by KDOR's counsel which included his examination of the trooper, which elicited the testimony of the trooper that plaintiff did not make any request for independent testing. The video, however, is clear that not only was a
request made, but it was denied by the trooper. Counsel, therefore, by his failure to review the video tape, assisted this trooper in presenting testimony obviously contradictory to the evidence in this case.

This contradiction, coupled with the attitude of the trooper apparent from his comments toward the plaintiff during and subsequent to testifying, and further buttressed by this court's observation of the attitude and demeanor of the trooper while testifying, lead this court to the conclusion that the trooper's credibility is severely lacking, not only as to the issue of independent testing, but also as to his views as to the manner in which plaintiff attempted to take the intoxilizer test.
Because Judge Wheeler finds that Mr. Baconrind did not willfully refuse the test and did request independent testing, he vacates the suspension order.

I guess I think this decision is interesting on a couple of different levels. I know that some writers have opined that perjury by law enforcement officers is a widespread problem and cases like this lend credence to that position. If this trooper hadn't been videotaped, I suppose he would have gotten away with it. I suppose law enforcement officers internally rationalize this type of act, but in reality it is both a crime and a breach of public trust, no matter how much they think the end justifies the means.

I wonder if the trooper is being prosecuted for perjury? Also, I wonder if this trooper has received any sort of professional sanction? If anyone knows, please comment.

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