Chief releases Q&A after intoxicated sergeant behind wheel not arrested

Here's what reportedly happened at the theater

In October, officers were called to a movie theater in Poulsbo after a man who seemed intoxicated was seen walking to his vehicle.

A police officer, who had recently been added to the force, arrived to the parking lot where the vehicle was off and the keys were out of the ignition.

She offered to give Sgt. Jim Porter a ride home, but he declined. No enforcement action was taken.

"Some have said that they believe that Porter was treated special by [Officer Danielle Branes] because he was a law enforcement officer. That is not the case," Police Chief Al Townsend said in a news release to KIRO 7 News. "Branes was unaware that Porter was a law enforcement officer at any time during her contact with him."  
 
Branes left and asked the theater to call police if the vehicle left. The car left five minutes later.

Officer finds vehicle at sergeant's home
 
A different officer, Jennifer Corn, found the car and Porter parked in his driveway outside his home just before 11 p.m.

Corn discovered at that time that Porter worked for the Sheriff’s Office.

Although the sergeant appeared intoxicated, police didn’t arrest him because they could not prove he had driven the car. The keys were not in the ignition. Also, his home is also outside of the city limits of Poulsbo.

Corn was wearing a body camera during the investigation at Porter’s home, but she turned it off when consulting with the chief.

Porter was placed on administrative leave, but he returned to work last month.

"Sgt. Porter put many people in a very bad situation because of his poor decision-making. Even after he was given opportunities to take a ride home, which he refused, he continued to make poor decisions. While I certainly hope he is held accountable for his actions, that matter is for the Kitsap County Sheriff's Office," Townsend said. "I can say with certainty that the Poulsbo Police Department treated Porter no different than they would any other citizen."

Since the conclusion of this investigation, the public has asked questions or made statements, which Townsend addresses below:

Why are officers allowed to turn off the body camera whenever they want?
"Under Poulsbo Police Department policy, during an investigation, officers can temporarily deactivate the body camera when consulting with other officers about the investigation. This can be important in times where information may not want to be shared. An example would be information from a source that doesn't want their name used as part of the investigation or discussing medical condition information that is private.

"Certainly in this case, it would have been nice to have that video and audio to show what was discussed and to provide additional transparency. It would also show how the investigation was turned over to KCSO since it was clearly outside of the city limits of Poulsbo. However, Ofc. Corn was clearly following department policy when she turned off the camera.

"From our experience on this particular incident, we will be reviewing this policy and recommending that the body worn cameras remain active during the entire interaction when the subject of the investigation is another law enforcement officer or person of influence, such as an elected official, to ensure additional transparency. Our policy for body worn cameras continues to develop and has been changed multiple times as we learn from our experiences."

Why wasn’t Porter arrested for DUI at the movie theater when you first contacted him?

"As stated above, when Porter was contacted at the theater, he was in the vehicle; the vehicle was parked legally in a parking stall; the vehicle was off; the keys were not in the ignition. A DUI charge and a physical control charge require the government to prove different elements of the crime. In a Washington State DUI case the government must prove you drove a vehicle. However, to prove the crime of physical control the government must prove that you were in “actual physical control” of a vehicle.

"The term “actual physical control” is not defined by Washington statute. Examples of drivers found to be in “actual physical control” include: a driver sitting in the driver’s seat of a parked car with the keys in the ignition; a driver seated in the driver’s seat of a vehicle that had run out of gas; and a driver seated in the driver’s seat of a car in an intersection with the keys on the floor of the vehicle. I’m not aware of any examples that meet the situation the officer was faced with when she encountered Porter.

"It is past practice of the Poulsbo Police Department, when encountering persons “safely off the roadway”, as Porter was, to offer them a ride and to not arrest. This practice applies to all persons. In fact, officers involved in this incident had inquired approximately one month prior to our city prosecutor for additional training materials on “safely off the roadway”. Officers wanted to ensure they weren’t arresting persons who would never be charged. Legal materials were provided and additional in-person follow-up training took place.

"As a result of this incident, we will be meeting with legal counsel to determine if we should change this practice or if there is an alternative when the occupant of the vehicle refuses a courtesy ride home, much like Porter did."

You clearly gave this person preferential treatment because he was a fellow law enforcement officer.

"Actually that is not the case at all. As mentioned earlier in this document, Poulsbo Police officers do not arrest persons for DUI that we consider not to be in physical control of the vehicle and the vehicle is safely off of the roadway. This applies to all persons. A vehicle that is parked in a parking lot with the keys not in the ignition would certainly not be charged as a DUI in Kitsap County. Enhancements that would result in a DUI arrest by a Poulsbo Police Officer would be such things as: the vehicle is running, the vehicle is in the actual roadway impeding traffic, the vehicle is in gear, the vehicle has been involved in a collision, and the vehicle is on but not running because it has run out of gas.

"Since this incident we are reviewing “in physical control” cases with the municipal prosecutor. As we continue to follow-up on this, we will be seeking access to all similar cases submitted to the Kitsap County Prosecutor’s Office by all county law enforcement agencies to determine if there is any history of such cases being charged.

"And finally, the decision to arrest Porter at his residence was to be determined by an agency with jurisdiction, that being either the sheriff’s office or the Washington State Patrol. One of the reasons that Poulsbo Police Ofc. Corn contacted KCSO was because we were in their jurisdiction, in the unincorporated area of Kitsap County.

"Based upon our experience from this incident, we will review whether adding language to our department policy that spells out that “safely off the roadway” cases will not result in arrest, so that it’s clear that this policy is for all motorists, not a specific person or group, even though past practice shows this."

Shouldn’t police officers be held to a higher standard than the average citizen?

"Yes they should. And that was the case here as well. That higher standard should not mean a lower legal threshold to arrest or a reduction in their civil rights. It means that the law enforcement officer should be treated the same during the investigation as any other person would. The Poulsbo Police Department conducted its investigation in that manner.

"As part of the department’s internal investigation of the officer’s conduct, the higher standard will be invoked. Personnel action against an officer based upon his/her conduct can be severe, up to and including termination. There are very few other professions where your off-duty conduct can so severely impact your career. Porter should face a disciplinary process in which he would likely be subjected to an unpaid suspension, demotion, or even termination resulting in thousands of dollars or even the loss of his career.

"I support this system. It is how we hold officers to a higher level of accountability than other citizens."

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