ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, March 12, 1996 TAG: 9603120080
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
In his 16 years as a police officer, R.S. Fuller has made more than 800 DUI arrests, been named officer of the month by the Roanoke Police Department, and received awards from civic groups for his efforts to combat drunken driving.
But Fuller's methods and credibility came under attack Monday - by a police officer he had charged with drunken driving.
A Roanoke General District judge dismissed speeding and driving under the influence charges against John Richard Holt, a state police investigator based in Appomattox, after Holt's attorney took issue with the way Fuller made the arrest Sept.9.
Fuller chose to charge Holt based on what attorney William Cleaveland called ``minor deviations'' in field sobriety tests, even when a breath test determined that Holt's blood-alcohol content was 0.07 percent. That's slightly below the level at which someone is presumed too drunk to drive in Virginia.
Cleaveland also pointed to a 1988 incident in which Fuller received a five-day suspension for reporting more arrests to the Police Department than he actually made, suggesting that the officer was padding the numbers to embellish his reputation as the department's top DUI enforcer.
But Judge Vincent Lilley did not cite that incident in dismissing the charge against Holt. In fact, the judge said he suspected that Holt was intoxicated on the night in question, but could not find so beyond a reasonable doubt.
Assistant Commonwealth's Attorney Gerald Teaster defended Fuller as ``an excellent officer'' and said it was regrettable that he had to come under attack from within the ranks of law enforcement.
``It's a sad situation that we have two police officers going after each other in that manner,'' Teaster said.
Holt, who was off duty at the time of his arrest, did not testify Monday. He is still employed by the state police, Cleaveland said, and an internal investigation is pending.
The judge also dismissed a speeding charge against Holt because Fuller did not offer written proof that his speedometer was accurate. Holt had been charged with going 63 in a 35 mph zone.
Fuller testified that he noticed Holt driving erratically and fast on Williamson Road shortly after midnight Sept. 9. After making a U-turn to give pursuit, Fuller said, he had to go 80 mph to catch the car.
When he finally caught up with the car, Fuller testified, Holt said he was in town to play in a softball tournament, and that he had drunk four or five beers during the evening. Holt was unsteady on his feet when asked to walk heel-to-toe, Fuller said, and slurred several of his letters while reciting the alphabet.
Based on what he had seen, Fuller placed Holt under arrest for suspicion of drunken driving and drove him to the Police Department for a breath test. But the test was delayed several times after Holt pointed out to police that he had belched during a 20-minute pretest observation period.
Because belching can increase the alcohol concentration in someone's breath, policy requires that police wait 20 minutes after a suspect burps before conducting the test.
After about an hour delay, the test found Holt's blood-alcohol content just below the 0.08 percent level at which someone is presumed too drunk to drive.
``This particular defendant knows every trick in the book,'' Teaster said, arguing that Holt used his knowledge as a police officer to put nearly two hours between the time he was pulled over and when he finally took the breath test.
Teaster said it is not that unusual for police to charge someone with DUI even if the blood-alcohol tests show a reading of slightly below 0.08 percent. The initial decision to charge is often based on how the suspect performs field sobriety tests, he said, and the results of blood-alcohol tests alone do not automatically resolve the case.
Testimony in Holt's case centered more on Fuller's interpretation of the field sobriety tests. A state police officer who was riding with Holt testified that he observed the tests, and that Holt did not appear to him to be intoxicated.
As for the 1988 incident in which Fuller reported more traffic charges than he was actually responsible for, Teaster dismissed it as being irrelevant to the case. Cleaveland, however, had unsuccessfully sought Fuller's personnel file from the Police Department to explore what he called questions about the officer's credibility.
After expressing concerns that he also was not allowed to review the file and determine its relevance, Lilley said he would give Cleaveland ``wide latitude'' to pursue the matter on cross-examination.
Fuller admitted that he claimed credit for more DUI and traffic charges than he actually made during a brief period in 1988, but added that other cases he was responsible for went unreported.
He bolstered his statistics out of frustration with superiors in the Police Department, who did not take them into account anyway in reviewing job performance, he said. ``I was punished, and I deserved it,'' Fuller said, adding that it was the only time in his career that he has been disciplined.
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