[00:00:01] Speaker 04:
Final case before the court today is Barnes versus Department of Defense case number 161754, appeal from the Merit Systems Protection Board.

[00:00:18] Speaker 04:
Mr. Schwartz, you want five minutes for rebuttal?

[00:00:21] Speaker 03:
Yes, please, Your Honor.

[00:00:27] Speaker 03:
Good morning, Your Honor.

[00:00:28] Speaker 03:
May it please the court.

[00:00:30] Speaker 03:
My name is Frederick Schwartz on behalf of Mr. Barnes.

[00:00:34] Speaker 03:
Let me first apologize to Judge Raina.

[00:00:36] Speaker 03:
There were a few typos in my brief that I discovered when I reread it.

[00:00:40] Speaker 03:
Nothing as egregious as the last time.

[00:00:42] Speaker 03:
And I hope that's my guess.

[00:00:45] Speaker 03:
Thank you very much.

[00:00:48] Speaker 03:
Let me say what we're not here to discuss.

[00:00:50] Speaker 03:
Everybody agrees that Mr. Barnes drove under the influence of alcohol.

[00:00:55] Speaker 03:
Everybody agrees that the

[00:00:57] Speaker 03:
He pled guilty to a slightly different charge, but in essence the same charge.

[00:01:02] Speaker 03:
Everybody agrees that it was a crime.

[00:01:05] Speaker 03:
Everybody agrees that he should receive some kind of punishment or penalty.

[00:01:12] Speaker 03:
Now what we don't agree about is whether or not the penalty was appropriate.

[00:01:20] Speaker 03:
There are constitutional requirements and statutory requirements, which in fact the MSPB discussed

[00:01:27] Speaker 03:
in a report that they issued and that is why I quoted it extensively in my brief.

[00:01:34] Speaker 03:
There is also the algorithm for determining what the penalty should be and that algorithm is what we call Douglas versus Veterans Administration.

[00:01:46] Speaker 03:
All that, and so that's the scope of review and

[00:01:53] Speaker 03:
What I did in my brief is because it was a complicated case and there were many complaints in terms of what the deciding official believed that Mr. Barnes did, and also many aspects of the Douglas analysis, which is the device of the board so that it's able to determine whether or not it was a process that met due process.

[00:02:24] Speaker 04:
Assuming that you're deep into the Douglas Factors, which that's clearly what I think the emphasis of both your argument and your brief is, if we find, for instance, that we would disagree with the board on one of the Douglas Factors, is that enough for us to send it back?

[00:02:43] Speaker 03:
No, that's what Judge Bryson would call harmless error.

[00:02:48] Speaker 03:
But then in fact, it takes more.

[00:02:53] Speaker 03:
And I think it's less science, less algorithmic, and more just a feeling that they were wrong sufficiently, or the deciding official was wrong sufficiently, so that the board should take another look at it.

[00:03:12] Speaker 03:
And the remedy that we're asking from this court is that you send it back, that you review it.

[00:03:20] Speaker 03:
look at particularly what this court found to be an inappropriate matter.

[00:03:26] Speaker 03:
For example, we have the question of whether or not Mr. Barnes asked the deputy to give him special treatment.

[00:03:36] Speaker 03:
And I've dealt with that extensively.

[00:03:38] Speaker 03:
And that's something that the court can actually look at because, in fact, it wasn't a credibility determination.

[00:03:47] Speaker 02:
But that's a type of issue that we can't look at.

[00:03:51] Speaker 02:
I mean, the evidence does show that he was holding out his badge and saying, are you going to follow up with this?

[00:03:57] Speaker 02:
Are you going to follow up?

[00:03:58] Speaker 02:
He kept repeating that.

[00:04:01] Speaker 02:
They took that to mean some sort of asking for special treatment.

[00:04:06] Speaker 02:
I tell you, counsel, what I find important in this case goes to the conscious and willful decision making.

[00:04:19] Speaker 02:
the deciding official based the termination.

[00:04:22] Speaker 02:
I mean, the punishment is based on the conclusion that everything that Mr. Barnes did while under the influence is willful and conscious.

[00:04:33] Speaker 02:
Your argument is that it wasn't willful and conscious because he was drunk at the time.

[00:04:39] Speaker 03:
Well, he was driving under the influence.

[00:04:43] Speaker 03:
And that's somewhat different.

[00:04:46] Speaker 02:
belligerency towards the arranging officer and the holding out the badge that those were not willful and conscious, you argue, because he was intoxicated.

[00:04:58] Speaker 03:
Well, yes.

[00:05:00] Speaker 03:
But if I could just very quickly go back to your initial point, Judge Raina.

[00:05:08] Speaker 03:
The testimony was, first of all, that when he was leaving or when he was getting out of his

[00:05:16] Speaker 03:
vehicle, which it overturned.

[00:05:18] Speaker 03:
He was asked for license and registration, which is typical of what's done.

[00:05:26] Speaker 03:
And he took out of his pocket his wallet and took his license and gave it.

[00:05:32] Speaker 03:
And the deciding official testified at the hearing that he in fact had seen that situation before, that people keep their police credentials,

[00:05:43] Speaker 03:
and their license in the same wallet.

[00:05:45] Speaker 00:
I'm not sure that's exactly what the record reflects.

[00:05:48] Speaker 00:
My recollection of the police officer's testimony was that as he approached the car that Mr. Barnes was holding up, he was standing up in the overturned car and holding up his police credential before there had been any request for identification.

[00:06:11] Speaker 00:
Is that, am I, is my recollection correct?

[00:06:14] Speaker 00:
Cause that, that puts a rather different coloration on it, it seems.

[00:06:18] Speaker 00:
Well, I believe that's correct.

[00:06:20] Speaker 00:
Is it not?

[00:06:21] Speaker 03:
That was his testimony, but in fact, what he was holding up did contain his license.

[00:06:29] Speaker 00:
Well, yes, but he was holding up that police identification.

[00:06:32] Speaker 00:
I think anybody who's familiar with the practice of badging, and I'm sure this police officer was familiar with the practice of badging.

[00:06:40] Speaker 00:
You know what I'm talking about.

[00:06:41] Speaker 03:
Yes.

[00:06:41] Speaker 00:
Badging.

[00:06:44] Speaker 00:
Knows it when they see it.

[00:06:45] Speaker 00:
And he's holding up his, as the police officer approaches, he's holding up his badge.

[00:06:50] Speaker 00:
That's badging.

[00:06:51] Speaker 00:
You'd agree with that, would you not?

[00:06:53] Speaker 03:
No.

[00:06:54] Speaker 03:
No?

[00:06:55] Speaker 03:
I'm sorry, Judge Bryson, but it seems to me that a perfectly reasonable explanation was that he had taken out of his pocket the

[00:07:09] Speaker 03:
out of his pocket is water, which contained that information.

[00:07:14] Speaker 03:
But that isn't primarily what the police officer was thinking about.

[00:07:19] Speaker 03:
What he said is, well, in the car, he said, how far are you going to take this several times, which is essentially twice.

[00:07:27] Speaker 03:
And then that is not, are you going to give me special treatment?

[00:07:33] Speaker 03:
But more important, the evidence also showed, and it was uncontroverted, that Mr. Barnes said,

[00:07:39] Speaker 03:
Right away, report this to my department, report this to the officer in charge.

[00:07:48] Speaker 03:
And if in fact he had wanted not to have some kind of penalty imposed, he wouldn't have done that.

[00:07:56] Speaker 03:
And his testimony as well, the officer's testimony as well, is that it's not unusual for somebody to say, how far are you going to take this?

[00:08:08] Speaker 03:
What is the charge going to be?

[00:08:10] Speaker 03:
What am I going to be charged with?

[00:08:12] Speaker 03:
It's quite ordinary.

[00:08:13] Speaker 03:
But I think Judge Bryson, because you're familiar with the term badging, which does occur, if you're being familiar with that, you can, in your mind, jump to the conclusion that that's what he was doing.

[00:08:33] Speaker 03:
But that's not predominant evidence.

[00:08:34] Speaker 03:
That is just some evidence

[00:08:37] Speaker 03:
based upon your experience as contrasted with all the evidence, particularly the fact he didn't say it, he didn't pursue it.

[00:08:48] Speaker 03:
He immediately told his agency that he had been arrested.

[00:08:52] Speaker 03:
All this... Well, it was the officer's perception.

[00:08:54] Speaker 03:
That's right.

[00:08:56] Speaker 03:
And I am not... Nobody questions that this was the officer's perception.

[00:09:02] Speaker 04:
But isn't that fact alone enough substantial evidence to support the board's conclusion?

[00:09:08] Speaker 04:
I mean, that's the problem.

[00:09:09] Speaker 04:
We can't rethink how the board weighed these things.

[00:09:13] Speaker 04:
When we question Douglas factor analysis, it's usually because they either completely didn't weigh a factor, or there was absolutely nothing to support the way they weighed it.

[00:09:27] Speaker 04:
I've rarely seen a case or I can't think of a case in which we've said, well, yeah, there's evidence, but we probably would have gone the other way.

[00:09:36] Speaker 03:
Well, but perception is not evidence unless it's based on some kind of evidence, which is acceptable.

[00:09:47] Speaker 03:
But I don't think this court has ever said where there isn't predominant evidence, which is responsibility of the agency.

[00:09:56] Speaker 03:
that they can ignore that responsibility.

[00:10:00] Speaker 03:
It's necessary that there's a rational connection between the facts found.

[00:10:06] Speaker 03:
And one of the facts was that that particular officer immediately thought that he was being asked to do something, even though he wasn't being asked to do something, and the choice made.

[00:10:19] Speaker 03:
And the choice made was, yes, Mr. Barnes did this.

[00:10:25] Speaker 03:
uh, in fact, meant this.

[00:10:28] Speaker 03:
And in fact, there is no evidence that he meant it.

[00:10:31] Speaker 03:
It was just a perception on the part of the officer.

[00:10:34] Speaker 03:
But as Judge Reimer said, the issue, it almost doesn't matter.

[00:10:38] Speaker 03:
All these things which occurred during this seven hour period, uh, are subsumed because if he did do it, he did it without a conscious, in essence, uh, without intent.

[00:10:52] Speaker 03:
without, it wasn't conscience.

[00:10:54] Speaker 03:
He was under the influence of liquor.

[00:10:56] Speaker 03:
Everybody agrees with that.

[00:10:58] Speaker 04:
And the decision made by the... So you're saying that the fact that he was voluntarily under the influence isn't a defense to the fact of the DUI, but it's a defense to the rest of his behavior?

[00:11:15] Speaker 03:
His?

[00:11:16] Speaker 03:
I think, Judge Amali, the issue is a little bit narrower than that.

[00:11:21] Speaker 03:
The issue is

[00:11:23] Speaker 03:
If in fact, and you've had cases where somebody has taken cocaine or some other drug, and there was a Virginia case I cited where somebody took medication, and all these are situations where there should have been some kind of foreseeability.

[00:11:40] Speaker 03:
But there wasn't in this case.

[00:11:43] Speaker 03:
He had had three drinks.

[00:11:46] Speaker 03:
That was the only testimony.

[00:11:47] Speaker 02:
But the evidence shows that he attended his supervisor's Thanksgiving party.

[00:11:53] Speaker 02:
He took his own alcohol.

[00:11:57] Speaker 02:
It wasn't there.

[00:11:58] Speaker 02:
He took it with him.

[00:12:00] Speaker 02:
He poured his own drinks.

[00:12:04] Speaker 02:
So he voluntarily, he took all the steps to become intoxicated.

[00:12:10] Speaker 02:
And it's difficult for me to buy the argument that the results of what happened after that, that voluntary action shouldn't be deemed to be

[00:12:21] Speaker 02:
voluntary because he was intoxicated.

[00:12:23] Speaker 02:
When you're intoxicated, you don't have control over yourself.

[00:12:29] Speaker 03:
Well, if it's an issue about being intoxicated, he would know.

[00:12:36] Speaker 03:
First of all, he brought it as a gift and left it.

[00:12:38] Speaker 02:
It is an issue.

[00:12:39] Speaker 02:
This is a DWI we're talking about.

[00:12:42] Speaker 03:
No, no, no.

[00:12:43] Speaker 03:
I understand that.

[00:12:44] Speaker 03:
So he brought the liquor as a gift.

[00:12:49] Speaker 03:
And he, in fact, poured three drinks.

[00:12:50] Speaker 03:
But I don't think that's the issue.

[00:12:53] Speaker 03:
The issue is whether he understood that he was drinking so much that he, in fact, would not meet the legal standard.

[00:13:02] Speaker 03:
Because I can have a drink or two at dinner, and yet if I drove, assuming I still had a license, which I don't, but assuming that I still drove,

[00:13:17] Speaker 03:
I would not, I would not think that I would meet the standard to be arrested.

[00:13:22] Speaker 03:
And, uh, there's no evidence that he understood that, that, that he was so intoxicated that he, at that point, that he was a danger on the highway or that in fact, you know, he was committing a crime because it's a crime, which is improper.

[00:13:38] Speaker 03:
It isn't just drinking.

[00:13:40] Speaker 03:
Uh,

[00:13:41] Speaker 03:
I mean, as I said in my brief, if you go to a restaurant, you see people finishing off, two people finishing off a bottle of wine.

[00:13:49] Speaker 03:
That probably would be enough to impair their driving, but they don't think that they meet the legal standard.

[00:13:58] Speaker 03:
Consequently, it's not intentional.

[00:14:04] Speaker 03:
What is intentional is, well, first of all, intention has nothing to do with DUI.

[00:14:11] Speaker 03:
But what it does have to do is whether he was immoral and so immoral that he could not be a police officer.

[00:14:18] Speaker 03:
And that's what the deciding official said.

[00:14:21] Speaker 03:
He said, I'm going to impose my own morality on this.

[00:14:25] Speaker 03:
And he intentionally committed a crime because he made himself so drunk that he violated the standard.

[00:14:33] Speaker 03:
And there's absolutely no evidence at all that in fact he did that.

[00:14:38] Speaker 04:
You're almost done with your rebuttal time.

[00:14:40] Speaker 04:
We'll give you three minutes for rebuttal.

[00:14:43] Speaker 04:
Thank you.

[00:14:52] Speaker 01:
Good morning, Your Honor.

[00:14:53] Speaker 01:
May it please the Court?

[00:14:55] Speaker 01:
As Mr. Schwartz has articulated, the sole issue before the Court in this appeal is whether the MSP erred in sustaining the penalty of removal in this case

[00:15:05] Speaker 01:
His court defers to the agency's determination of the penalty unless it is totally unwarranted in light of the relevant factors.

[00:15:13] Speaker 04:
The DUI was a misdemeanor offense, right?

[00:15:17] Speaker 01:
I believe that the reckless driving that was ultimately... Right, it was put down.

[00:15:23] Speaker 01:
...that he was ultimately pled guilty to, I believe, is a misdemeanor offense.

[00:15:26] Speaker 04:
Right.

[00:15:26] Speaker 04:
And is it true that every time

[00:15:30] Speaker 04:
Anyone in a law enforcement capacity is charged with a misdemeanor that they are fired?

[00:15:40] Speaker 01:
There's certainly no per se rule, at least that I'm aware of, that a law enforcement officer is fired any time there is a single violation of a misdemeanor.

[00:15:51] Speaker 01:
However, what we're looking at here is the totality of the circumstances in this case.

[00:15:56] Speaker 01:
First of all, this misdemeanor is a DUI.

[00:15:58] Speaker 01:
or reckless driving, which includes putting both Mr. Barnes and the public at risk.

[00:16:04] Speaker 02:
I think the record shows, and I think it was decided that by virtue of having the DUI, that did not reflect on his capacity or his ability to do his job.

[00:16:20] Speaker 01:
Correct?

[00:16:23] Speaker 02:
It did not affect his ability to be a police officer.

[00:16:27] Speaker 02:
I mean, it was conduct on becoming.

[00:16:29] Speaker 02:
That's what they found.

[00:16:30] Speaker 01:
Yes, Your Honor.

[00:16:31] Speaker 01:
I mean, the conduct on becoming sort of encapsulates the conduct involved in the DUI.

[00:16:36] Speaker 01:
I think what Your Honor is getting at is that the mechanics of the job were not undermined by the guilty plea, effectively.

[00:16:49] Speaker 02:
So he has a misdemeanor.

[00:16:51] Speaker 02:
He completes drug school.

[00:16:54] Speaker 02:
I mean, alcohol school, we'll call it.

[00:16:56] Speaker 01:
Yes, Your Honor.

[00:16:57] Speaker 02:
Right?

[00:16:58] Speaker 02:
And he takes steps to rehabilitate himself and he doesn't have any further incidents of a DUI.

[00:17:07] Speaker 02:
Wasn't the penalty of termination a bit harsh in this case?

[00:17:13] Speaker 01:
Well, again, Your Honor, looking at all of the evidence here, the deciding officials' primary concerns were sort of two overarching themes.

[00:17:25] Speaker 01:
First, that

[00:17:27] Speaker 01:
He had, based on the decision, very poor decision to drink and drive, based on his conduct during his arrest and subsequent hearings, that the deciding official had lost confidence in Mr. Barnes' judgment, which is a critical factor, a critical need in a police officer, and is articulated in

[00:17:54] Speaker 01:
the police officer job description is the ability to have incredibly good judgment.

[00:18:00] Speaker 02:
You've had a number of those cases where there's a loss of confidence in the ability of the police officer or the employee, but normally those involve moral turpitude issues, either lying or stealing or things of that nature.

[00:18:17] Speaker 02:
But this is not a moral turpitude issue, is it?

[00:18:21] Speaker 01:
Not specifically, Your Honor, no, but it does involve

[00:18:24] Speaker 01:
an individual who is charged with public safety putting the public in danger by his actions.

[00:18:31] Speaker 01:
It involves a law enforcement officer showing disregard to other law enforcement officers and to other members of the law enforcement community.

[00:18:43] Speaker 04:
There wasn't even really any real consideration of rehabilitation here.

[00:18:49] Speaker 04:
You sort of just throw out that, well, he was convicted of a crime.

[00:18:53] Speaker 04:
I mean, it's legion how many law enforcement officers are convicted of domestic violence all the time and charged with misdemeanors, and they never lose their jobs.

[00:19:02] Speaker 04:
They never lose their right to carry their guns.

[00:19:05] Speaker 04:
So why is it that here you never considered the fact that he had never been in trouble with the law before, and he went through the alcohol rehabilitation programs?

[00:19:20] Speaker 01:
Earlier on or first, I think the deciding official did consider those factors.

[00:19:23] Speaker 01:
They're documented in his Douglas analysis.

[00:19:27] Speaker 01:
He discussed them both in his decision and before the administrative judge.

[00:19:32] Speaker 01:
But he felt that they were outweighed by, again, his essentially lack of trust in Mr. Barnes' judgment going forward in the fact that Mr. Barnes... I don't think that's a fair characterization because

[00:19:49] Speaker 04:
When you go through which ones they found to be factors they found to be mitigating, which ones they found to be neutral, they actually found the rehabilitation factor to be an aggravating factor without having considered those things that I pointed out.

[00:20:04] Speaker 04:
So I guess, so it's not really fair to say that he considered those but they were outweighed.

[00:20:09] Speaker 04:
He actually said that it was aggravating because he couldn't undo the misdemeanor charge.

[00:20:19] Speaker 01:
Well, first of all, I don't think that the fact of not being able to undo the charge itself was the sole concern in the rehabilitation category.

[00:20:35] Speaker 01:
The deciding official also discussed the public's trust in the Pentagon police force by having an officer with this kind of conviction on his record, also discussed the safety of the public

[00:20:48] Speaker 01:
The rehabilitation did not necessarily go specifically to the individual, but was also discussing the mission of the force as a whole as well.

[00:20:57] Speaker 01:
And again, even bringing that factor down slightly, the goal here is to determine whether the penalty was totally unwarranted in light of all of the factors considered, even lessening the rehabilitation factor slightly.

[00:21:15] Speaker 01:
The nature and seriousness of the offense

[00:21:18] Speaker 01:
The fact that the penalty was within the range, the reasonable range, the fact that Mr. Barnes was clearly on notice as to the type of violation he was committing, and again, his conduct during this event, all taken as a whole, support the deciding officials

[00:21:47] Speaker 01:
decision to remove Mr. Barnes.

[00:21:50] Speaker 01:
I want to touch on just briefly an issue that was raised during Mr. Schwartz's testimony, this question of whether the individual can have the requisite intent to effectively show poor judgment while intoxicated.

[00:22:17] Speaker 01:
The issue that the deciding official is looking at here is not a legal definition of intent, whether Mr. Barnes intended to disrespect a police officer.

[00:22:26] Speaker 01:
He is looking at Mr. Barnes' judgment during this entire process, his decision to drink at several alcoholic beverages, knowing as he is a police officer, their effect on his ability to drive.

[00:22:43] Speaker 01:
the fact that his impaired ability to drive would be a danger to himself and the public.

[00:22:49] Speaker 01:
He did exercise at least some element of judgment in this interaction with the other law enforcement officials.

[00:22:58] Speaker 01:
He did make conscious decisions to hold up his badge to repeatedly ask how far this was going to be taken to interact with the magistrate.

[00:23:08] Speaker 01:
All of these circumstances as a whole

[00:23:12] Speaker 01:
affect Mr. Barnes' judgment and affect the deciding officials' perception of his ability to maintain that judgment as a police officer.

[00:23:24] Speaker 01:
Unless the court has any further questions, we would simply ask that the court affirm the MSPB's decision in this case.

[00:23:34] Speaker 04:
Okay.

[00:23:35] Speaker 01:
Thank you.

[00:23:42] Speaker 03:
It's true, Your Honor, that the agency does not have a per se rule, but this particular deciding official did.

[00:23:49] Speaker 03:
He said so.

[00:23:51] Speaker 03:
He said it a number of times in his Douglas analysis, that I cannot have faith in anybody who violates the law, any police officer who violates the law.

[00:24:04] Speaker 03:
He even went so far as to say, it would be okay if a doctor did it.

[00:24:08] Speaker 03:
I wouldn't think he should lose his license.

[00:24:10] Speaker 03:
But a police officer should, under no condition, should do what Mr. Barnes did.

[00:24:18] Speaker 04:
Do you have any evidence that others in the Pentagon police force who were convicted of misdemeanor offenses did not lose their jobs?

[00:24:29] Speaker 03:
Well, we have that one case that I cited that there was testimony.

[00:24:35] Speaker 03:
There is a process called clean records, as the court knows.

[00:24:40] Speaker 03:
Uh, we were unable, uh, we had suggestions of who else might be involved in a similar situation.

[00:24:48] Speaker 03:
But as I point out, uh, the judge refused to let us call these people and, and there was an impediment to proving it.

[00:24:55] Speaker 00:
But, but- Wait, wait, wait.

[00:24:58] Speaker 00:
So, uh, this is discussed in the, uh, opinion at pages 40 through 41.

[00:25:04] Speaker 00:
And my takeaway from that was that, uh, you were given

[00:25:08] Speaker 00:
the identity of several people.

[00:25:11] Speaker 00:
And it turns out that none of them had equivalent situations, right?

[00:25:17] Speaker 00:
I mean, this is, you know, the section of the opinion I'm talking about where the human resources specialist was asked to come up with some similar cases that came up with four individuals.

[00:25:29] Speaker 03:
That's correct, Judge Bryson, but it isn't absolutely correct.

[00:25:33] Speaker 03:
What was determined is that they had no records.

[00:25:37] Speaker 03:
Right.

[00:25:38] Speaker 03:
Uh, it was able to be found by that personnel person, but, but there is a process called clean records, which is, uh, you, you're any, any offenses are taken from your file, uh, after, after certain requirements are met either through settlement or through, uh, uh, being removed for 14 days or 25 days.

[00:26:05] Speaker 03:
Uh,

[00:26:06] Speaker 00:
But there were details of these other individuals in their situations, but they just were, one involved not securing his service revolver adequately, right?

[00:26:18] Speaker 03:
Well, there was only one person and they did two things, domestic violence and misuse of weapon.

[00:26:26] Speaker 03:
And then his penalty was reduced from, I believe it was 21 days to 14 days because he was seeking alcohol counseling.

[00:26:36] Speaker 03:
But there were other examples and the court, if we point out, did not allow us to call those people, did not allow us to do anything except have their records looked at.

[00:26:52] Speaker 03:
And also in terms of the seriousness or the judgment, as you pointed out Judge O'Malley,

[00:27:03] Speaker 03:
It's strictly a moral issue.

[00:27:05] Speaker 03:
This person is not morally able to be a police officer, except a deciding official's view of the morality that you must have to be a police officer.

[00:27:15] Speaker 03:
And it goes back finally to Judge Raina's question or decision or determination that if you, in fact, have several drinks, whether you intend all the consequences of what's going to happen,

[00:27:32] Speaker 03:
And for the police or for the deciding or the A.J.

[00:27:37] Speaker 03:
to say, well, it's a matter of common knowledge for police officers that if you have over a five hour period, three drinks and a beer, that you are violating the law and you are a danger.

[00:27:51] Speaker 03:
He had no idea it was going to be a danger.

[00:27:54] Speaker 03:
And in fact, he wasn't a danger.

[00:27:55] Speaker 03:
He was able to drive to his friend's house 20 minutes away and able to drive home.

[00:28:01] Speaker 03:
And if it were not for a deer, he might have very well gotten home.

[00:28:04] Speaker 03:
So he was walked to the door.

[00:28:07] Speaker 03:
Nobody told him that, in fact, you know, he was wobbling or unsteady.

[00:28:16] Speaker 03:
And he's about to say, my time's up, so I'll sit down.

[00:28:20] Speaker 03:
Thank you.

[00:28:21] Speaker 03:
Okay.

[00:28:22] Speaker 04:
All right.

[00:28:22] Speaker 04:
The cases will all be submitted.