MELBOURNE, Fla. – A Melbourne police officer is back behind the wheel of a cruiser, despite having a restricted driver's license because she refused to take a breathalyzer when pulled over and charged with driving under the influence, News 6 partner Florida Today reported.
The charge was later dropped by the State Attorney's Office.
Audrey Poole's refusal to submit to the breathalyzer earned her an automatic restriction on her license. She only can drive a vehicle for "business purpose only," for one year, allowing her to drive in her capacity as a Melbourne police officer.
Deputy Chief David Waltemeyer defended the department, saying it has taken appropriate action to hold Poole accountable for the arrest.
"Her driving in a police car... the law allows for that" while she's on a 'business purpose only' license, Waltemeyer said. "There are additional safeguards and restrictions on her that we feel are appropriate that enable her to go out and perform her duties."
Florida traffic code allows any civilian to drive while working, he said.
"I absolutely understand that a police officer is a special circumstance," he said. "That certainly was taken into account."
Waltemeyer said Poole's probationary status as a new police officer was extended after the arrest and she is under constant scrutiny and supervision from commanding officers in the department.
Neither Poole, nor her attorney Mark Harnage could be reached for comment.
What happened
Poole was driving more than 20 mph above the speed limit on Emerson Drive in Palm Bay in the early hours of Sept. 30 last year while off duty, according to her arrest affidavit.
The officer who pulled her over said she had glassy, bloodshot eyes and smelled of alcohol before she failed multiple field sobriety tests. She refused to submit to a breathalyzer test and was arrested.
Dashboard camera footage from the night of Poole’s arrest shows her going through a series of field sobriety tests before ultimately declining to consent to a breath test.
Poole then began crying and pleading with the officer. “Please. Please. I cannot lose my job.”
In the video, the officer tells Poole she’s under arrest unless she submits to a breath test. She collapses on the ground and continues to plead with the officer.
She automatically lost her license for one year under Florida law, as anyone who refuses a chemical test does. DUI suspects can only be compelled to submit to a chemical test in cases that result in severe bodily injury or death. Her case did not.
Immediately following the traffic stop and arrest, Poole was placed on administrative leave with pay until Nov. 12, when she was assigned to desk duty. During that time, Poole gave up her badge, service weapon and right to drive a city vehicle.
One month later, the state attorney’s office dismissed the DUI charge. Two months after that, Poole was reinstated to patrol and again driving a Melbourne police cruiser.
Deputy Chief Waltemeyer said the department has no record of any other officers being charged with a DUI in the past 30 years.
Charge dropped after investigation
The Melbourne Police Department completed an internal investigation Feb. 4, and Poole— who was hired as an officer in March 2018 after working in dispatch since 2012 — was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law and unlawful consumption of alcohol.
She was suspended for a week without pay, lost take-home car privileges, was required to complete an alcohol education course and had her probationary period as a police officer extended by six months.
Poole's license was restricted to “business purpose only" for a year and she was reinstated to patrol by Feb. 13. She will be eligible to have her license restored after one year, per state statutes.
Business-purposes only licenses can be issued for any professionals who drive for a living. It's up to individual employers' discretion whether the person continues working and whether their insurance will continue coverage.
Multiple prosecutors reviewed Poole’s case before deciding not to pursue charges, according to State Attorney’s Office spokesman Todd Brown.
“Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant's performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial,” Assistant State Attorney Leo Domenick wrote in a disposition.
When the charges were dropped, Poole was issued a 'business purpose only' license for work by the Department of Motor Vehicles.
Steve Casanova has been practicing law and handling DUI defenses in Brevard County for over two decades. Based on his experience, the way Poole’s case was handled is not the norm, he said.
“No I don’t see cases dropped because there’s a refusal to blow… very, very rarely," Casanova said.
Mark Germain, another Melbourne-based DUI lawyer said he's "surprised" to see a case dropped when field sobriety tests were failed.
"It's pretty rare that you see cases completely dropped, but every case is different," Germain said. "They might get knocked down to a reckless driving or a careless driving sometimes, but with most refusals they won't negotiate ... a dismissal."
But Brown said prosecutors have an obligation to drop charges that don't meet the burden of proof required for a jury trial. Prosecutors decided Poole performed well enough on field sobriety tests combined with a lack of a breath test, making the burden of proof difficult to meet, Brown said.
"If this were any other citizen, how would we proceed with this case?" Brown said. "We're confident if this were a member of the public charged under similar circumstances, we'd have come to the same conclusion."
Concerns about DUIs
Brevard County saw a total 2,062 DUI arrests last year.
In the 143 alcohol-related crashes reported in the county last year, there were nine fatalities and 81 injuries, according to data compiled by the state.
Less than 18 percent of those DUI arrests ended with charges being dismissed by either judges or prosecutors.
Yolanda Larson, executive director of Mothers Against Drunk Driving in Central Florida, said although she couldn’t speak specifically about this case, the group is always concerned about DUI enforcement and provisional licenses for suspected offenders.
“We can’t just let people go with a slap on the wrist,” Larson said. “If we did that, the fatalities would go sky-high and the injuries would go sky-high.”
She said there are challenges for police as well, including delayed blood testing when suspects refuse to submit to a breathalyzer test.
Other frustrations for the group include what they see as the prevalence of 'business purpose only' licenses, which they believe can potentially allow dangerous drivers back on the road too soon.
“It is very frustrating. We’re really pushing for ignition interlock. We don’t like to see people getting business-only licenses anymore,” Larson said.
MADD knows that DUI suspects may need to drive for work or for other reasons, but wants to see mandatory built-in breathalyzers in vehicles.
“They can still drive, they can still work because it’s calibrated for them to blow," Larson said.