Drunk Officer in Kitsap County Not Arrested: Was His Luck the Result of Police Privilege or a Little Known Statutory Defense?

Driving under the influence is taken very serious in Washington State, for all those but police officers in Kitsap County. In early October, Sheriff's Sergeant Jim Porter was found under the influence of alcohol while sitting in the driver's seat of his vehicle in two different parking lots − that of a local theater and later, at his home five miles from the theater. Although the incident occurred over two months ago, footage is now surfacing from two Poulsbo Police Officers' body cameras suspecting that the police officers who let Porter go may have had enough evidence to detain and possibly charge Porter with crimes. The two Officers have maintained that they treated their colleague as they would any other patron and that no probable cause existed to detain or charge him.

What Were the Facts Behind the Potential DUI Charge?

According to the Kitsap Sun -  the newspaper that filed the public records request for the body camera footage from the incident − the Poulsbo Police Department received a call on October 16 concerning a man sitting drunk in his Jeep in the parking lot of a local movie theater. Danielle Branes, the first officer on the scene, did not arrest Officer Porter despite allegedly smelling alcohol on his breath. Instead, she offered to drive him home or to call him a cab − Porter declined both options. Branes then left the scene after telling Porter not to drive and asked theater employees to keep an eye on Porter and his Jeep. Shortly thereafter, theater employees called the police again after noticing the car was gone.  Officer Jennifer Corn then drove to Porter's house where she found Porter in his vehicle covered in vomit and slurring his words.

Can you Get Arrested for a DUI if You are not Actually Driving?

When both officers reached the scene, Porter was merely sitting in his car and was not actually driving the vehicle. In Washington State, however, that is not necessarily a “get out of jail free” card.  A person found in 'actual physical control'- not driving the vehicle while impaired- can be charged with a crime. 'Actual physical control' refers to situations where the car is not in motion, but is instead immediately capable of being driven.  No actual definition of ‘actual physical control' exists within the Washington statute, but situations where a person has been charged with being in actual physical control include: (1) a driver sitting in the driver's seat of a parked car with the keys in the ignition^[1]; and, (2) a driver seated in the driver's seat at an intersection with the keys on the floor of the car^[2]. Although ‘actual physical control' is a separate charge from a DUI, an ‘actual physical control' charge is very similar in punishment to a DUI.  A person convicted of ‘actual physical control' faces mandatory jail time, fines, an ignition interlock device, and license suspension.

Was Officer Porter in 'actual physical control' of his vehicle?

The ‘actual physical control' statute promotes safety, allowing a police officer to arrest a person under the influence without having to wait until that person is actually moving their vehicle on a roadway and putting others in danger. A defense exists to an ‘actual physical control' charge when a person has moved the vehicle safely off the road prior to being pursued by the police.  As a result, he or she may not be convicted of ‘actual physical control'.^[1] This defense allows those impaired to safely mitigate potential danger they may pose to others by encouraging them to "move the vehicle safely off the roadway."  That could mean the car is parked in a parking lot or on a shoulder completely off the road. In Porter's situation, he was found in a parking lot, off the road during both interactions with officers. Many reporters have failed to mention this defense while criticizing the Poulsbo Police Department for not arresting and charging Porter.

While the police officers maintain that they followed standard procedures regardless of the fact that Porter was a Police Officer, news reporters are quick to assert the Officers on the scene threw their fellow colleague a bone, especially being that Officer Corn turned off her body camera while interacting with the allegedly intoxicated Porter. Still, according to the North Kitsap Herald the Poulsbo Police Department is investigating the matter and Porter is facing "a disciplinary process in which he could likely be subject to unpaid suspension, demotion or even termination. . ."

^[1] RCW 46.61.504(2)

^[1] McGuire v. Seattle, 642 P. 2d 765 (1982), review denied, 98 Wash. 2d 1017 (1983)

^[2] Bremerton v. Corbett, 723 P. 2d 1135 (1986).