Archive for Thursday, August 19, 1999

AGENCY CRITICIZES REVENUE OFFICIAL FOR DROPPING CASE

August 19, 1999

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A Kansas Department of Revenue administrative hearing officer has been told not to dismiss driver's licenses cases in the future.

A Kansas Department of Revenue official has been reprimanded for dismissing a driver's license revocation hearing scheduled for a Lawrence policeman who failed a breathalyzer test after a November 1998 traffic accident.

The police officer, Todd Polson, was acquitted in January of operating a vehicle while under the influence of alcohol.

But he was scheduled for an April 20 revenue department hearing that still might have cost him his driver's license, had the hearing proceeded.

Bruce McAlister, a Revenue Department hearing officer, dropped the hearing. His action resulted in a letter from Sheila Walker, director of the agency's motor vehicle division.

"Our general counsel (Richard Oxandale) has reviewed this matter with Mr. McAlister, and Mr. McAlister will not dismiss similar matters in the future without holding a hearing," Walker stated in the Aug. 11 letter, a copy of which was obtained by the Journal-World.

A spokesman for the Revenue Department declined additional comment about the agency's reaction to McAlister's reprimand.

"To my knowledge, the letter pretty much speaks for itself," said agency spokesman Angela Goering.

Walker's letter said McAlister admitted he would not dismiss Polson's case if he had to do it again.

Attempts to reach McAlister and Polson on Wednesday were unsuccessful.

McAlister dismissed the case because "based on information that the administrative hearing officer proffered from Mr. Polson's attorney, there was evidence of what we could call post-operation consumption of alcohol," Goering said.

At the hearing, McAlister would have determined if sufficient evidence existed to determine if Polson failed or refused to take a breath or blood-alcohol test. Polson passed preliminary field sobriety tests after the minor accident but failed a breath test that indicated his blood-alcohol level was 0.11 percent, according to testimony at his January trial in Lawrence Municipal Court.

Judge Randy McGrath found Polson, who now works in the police department's training division, not guilty. The state scheduled a hearing to determine if Polson could keep his driver's license. A drunken driving defendant can win in court but still lose driving privileges through the administrative hearing process. But McAlister later dismissed Polson's case.

At trial, Polson's attorney said mouth-alcohol affected the results of his client's blood-alcohol test. Polson said he sipped some champagne after preliminary field sobriety tests and before taking the blood-alcohol test. Polson, escorted to his home to take the test, admitted he didn't tell fellow officer Vince Casagrande or Lt. Edward Brunt he had drank right before the test.

The administrative punishment for refusing to take an alcohol test is a one-year license suspension. For failing a test, a driver is suspended for 30 days, if it's the driver's first conviction and is restricted for 330 days. A second or subsequent offense within five years earns a one-year suspension.

Overland Park police arrested Polson on Nov. 13, 1994, for an OUI, records show. Polson successfully completed a diversion program in that case on March 5, 1996.

Drivers facing administrative hearings are issued a "DC-27" temporary license that they can drive on until their hearing date.

Goering said she didn't know if a new hearing for Polson will be scheduled.

"At this time, I don't know if there would be circumstances that would allow another hearing," she said.

-- Deb Gruver's phone message number is 832-7165. Her e-mail address is dgruver@ljworld.com.

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