Encinas was asked to exit the vehicle.  The officer noted an odor of alcohol coming from the suspects breath.  He perfrormed the HGN test and observed 4 of 6 clues (indicating the driver had likely consumed alcohol).  Encinas declined any further roadside tests and elected not to take a breath alcohol test.

Officers also testified that Encinas did not fumble for his wallet or seem disoriented.  He was steady on his feet and did not have slurred speech.  Playing of the video of the arrest showed that the officer had not properly performed the HGN and thus could not be used to determine PC to arrest.

In rendering its decsion the Court of Appeals noted:

The probable cause needed to conduct a DUI arrest requires that the officer have knowledge or reasoanably trustworthy information that the suspect was actaully in physical control of a moving vehicle while under the influence of alcohol, to a degree which renders him incapable of driving safely. (This is analogous to Washington DUI standard of “affected to an appreciable degree.)

As has been found in Washington DUI cases, when the evidence shows only consumption, but not impairment, this is insufficent to support an arrest for DUI.

A federal lawsuit was filed against Fiorito by 21 people that allege they were roughed up and called anti-gay slurs by the Chicago police officer.  As many as 20 more indivudals are expected to join the suit.

A video released Tuesday appears to show Fiorito bullying a DUI suspect during a June arrest.  There are a number of problems with the way the field sobriety test were conducted.  Despite the officer’s inability to conduct the tests correctly the driver seems to do fine.  Despite his performance he is arrested for DUI. 

A second video does not appear to support Fiorito’s allegations that the driver was swerving from lane to lane and narrowly missing parked cars. 

On Novmeber 12, 2009, NBC Chicago reported:

Fiorito has been honored by Mothers Against Drunk Driving for the 313 DUI arrests he made between Jan. 1, 2007 and June 6, 2008.

He said that if he’s called to testify in these cases, he will assert his 5th Amendment rights.

Fiorito is the third Chicago cop accused of trumping up DUI charges. Last year, prosecutors dropped more than 50 cases after accusing Chicago officer John Haleas of perjury. Earlier this year, dozens of DUI arrests by officer Joe Parker came under scrutiny.

I previously practiced in a jurisdiction where all police vehicles were equipped with cameras.  The videos above demonstrate why they should be mandatory in every jurisdiciton.  Not only do offer unbiased evidence, they can be used to deter (or at least catch) police misconduct. 

As the push to arrest more and more DUI driver’s continues, these type of incidents will become more prevelant.