YAKIMA, Wash. -- Last month’s drunken driving arrest of a Yakima City Council member spotlighted the treatment of DUI suspects and raised questions about police possibly giving public officials and “high profile” citizens preferential treatment.

Councilwoman Carmen Mendez was arrested on April 16 after her Chevy Malibu rear-ending a Chevrolet Suburban with six passengers, four of whom were children between the ages of 5-14. Mendez, whose breath test showed she had a blood alcohol content of more than twice the legal limit of 0.08, was released after being cited for DUI, a police officer gave her a ride home and the city locked access to her arrest records, although city officials said they were obtainable through a public records request.

Those actions drew the scrutiny of many in the community who questioned if “average citizens” would receive the same treatment and drew comparisons from some people about their treatment by officers when stopped for drunken driving.

“Where was the courtesy ride home for my son? He was required to spend the night in jail. (The police reports all mention that my son was polite and respectful the entire time.),” wrote reader Anne Crose in a letter to the Yakima Herald-Republic. “Yet, my son was charged with a DUI, which ensued a costly fight of more than eight months, requiring him to drop out of CWU in order to work to pay for the lawyer and the fines. ... We learned that there is no such thing as a legal limit. Now we are learning that Yakima police play favorites.”

A Yakima Herald-Republic review of statewide DUI procedures and policy reveals that Yakima police appear to have handled Mendez much the same as any other suspected drunken driver, following a protocol established by the Washington State Patrol. But some of the agency’s actions, such as giving DUI drivers a ride home, are not consistent with other agencies throughout the state.

Yakima defense attorney Ulvar Klein said the way police handled the Mendez incident could result in public distrust and a perception that public officials may not face the same consequences as ordinary citizens. But he also added that notion could be misleading, noting that about half the 30 people he represents a year in first-offense DUI cases get a ride home.

“There are folks who pass the attitude test — you don’t give (police) a hard time and you get a ride home,” he said. “Obviously all the people that didn’t get a ride home are pissed and think it’s extremely unfair, but (the ride home) has nothing to do with her political position.”

Based on how other police departments handle DUI cases, it appears that Yakima police may have given Mendez some preferential treatment. But Capt. Jeff Schneider said officers didn’t violate any procedures.

“This (case) was handled exactly like any other DUI, with the same severity — exactly,” he said.

 

Procedures

All law enforcement agencies across the state follow the same procedures outlined by the Washington State Patrol when making a DUI stop and arrest.

Traffic violations, erratic driving or a traffic crash are usual incidents that prompt an officer to investigate whether a driver is impaired.

Officers typically conduct a field sobriety test, which could include having a suspect walk a straight line, stand on one foot or follow a moving object with their eyes without moving their head.

An officer also may ask a suspect to provide a breath test at the scene using a portable device.

If there’s enough evidence suggesting the person is under the influence, the officer makes an arrest and the person’s car is impounded for 12 hours.

When a crash is involved, which most often is the case in Yakima, one officer investigates the DUI while another probes the accident, Schneider said.

At the police department, the driver is asked to submit to another breath test using a certified device that produces results that are allowed as evidence. While mobile tests may provide officers with probable cause for an arrest, they aren’t as accurate and their results are not admissible in court.

Prior to submitting to the test at the station, suspects are allowed to call an attorney, who could answer any legal questions about the test. If a suspected DUI driver does not have an attorney, they are provided a list of on-call attorneys, which is standard policy across the state. Suspects also are given a phone book in case they would rather call an attorney not on the department’s list.

Being provided an attorney prior to taking a breath test not only affords a driver legal advice but also helps police build a solid case, said Paul Kelley, who heads the county’s Department of Assigned Council. He has two staff attorneys who rotate shifts on the on-call list.

“It’s better for police to get an attorney on the phone to inform suspects of their rights,” he said. “It could be viewed by a court that a cop giving legal advice could be tainted. It helps them keep a solid case.

“A suspect also has a right to refuse a test, and an on-call DUI attorney can provide that suspect the implication for that decision.”

Under state law, drivers who refuse the test at a police department have their license suspended for a year whether or not they’re convicted of a DUI.

While Mendez refused a breath test at the scene, she later agreed to one after consulting an attorney from a list at the police station. Her intoxication level ranged from 0.179 to 0.185, more than double the legal limit of 0.08.

 

Officer’s discretion

Although state policy specifically outlines how DUI suspects are to be processed, there’s nothing determining whether a suspect facing a first offense should be booked into jail.

Under state law, those suspected of a second offense or more are automatically booked into jail. Fines and penalties increase with each conviction, Kelley said.

A fifth DUI within 10 years is an automatic felony. A measure recently approved in the state House would change that to a fourth DUI within 10 years.

But first offenses aren’t always as clear-cut when determining whether to book a suspect into jail.

Yakima police officers have discretion, although most first-time offenders are booked, Schneider said.

Last year Yakima police made 357 DUI arrests, 335 the previous year, and 330 arrests in 2014. Schneider couldn’t say how many of those arrests ended with a release by a police officer.

“We don’t track that,” he said.

Booking a DUI driver into jail has more to do with getting someone impaired off the streets for public safety rather than punishment, he said.

An officer’s decision to release a driver first has to be cleared by a supervisor, typically a sergeant, Schneider said.

Officers are given similar discretion in Renton, said Renton police officer Marty Leverton.

“If you have a drunk driver who is cooperative and there’s someone sober who can take custody of them, then releasing them isn’t a bad choice,” Leverton said. “It’s not uncommon to release a DUI suspect in those circumstances.”

Not all police departments afford officers discretion when it comes to DUI arrests. In Kennewick, DUI suspects are never released by a police officer after an arrest, said Sgt. Joe Jackson.

“In my almost 18 years with Kennewick police, I’ve never seen that,” he said.

Mendez’s vehicle was badly damaged in the accident and towed from the scene. Either way, it would have been impounded for 12 hours, according to state law.

Of the six occupants in the Suburban, two complained of minor neck and back pain, according to the police report.

Yakima County Prosecuting Attorney Joe Brusic said he’s only pursuing a misdemeanor drunken driving charge against Mendez because the injuries weren’t serious enough to warrant a vehicular assault charge. She’s expected to be formally charged in about three weeks in Yakima County District Court.

At the time of her arrest, Mendez was cooperative and didn’t pose any further public safety risk, Schneider said.

“If her vehicle was accessible or her family wasn’t at home, most likely she would have been booked into jail,” he said.

Instead of booking Mendez, an officer gave her a ride home. Schneider said the officer intended to take her to the hospital because her thumb was injured in the crash. At Mendez’s request, he took her home instead so family could take her to the hospital.

Leverton, the Renton police officer, said while giving a suspect a ride home isn’t unheard of, it’s not something his officers do.

“It’s just not a common practice,” he said.

Suspects are released to a responsible, sober adult, he added.

If Mendez would have been booked, she would have been taken to Yakima County jail, where the city of Yakima houses its female inmates, said Scott Himes, chief of the county’s Department of Corrections.

Attorney Klein said Yakima police may not want to book any first-time offender into the county jail.

“I bet more woman are perceived to be more agreeable, more officer-friendly and are more likely to get a ride home,” he said.