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Prosecutor drops charge against deputy



Published: Tue, January 22, 2002 @ 12:00 a.m.



Charges were dropped when the sheriff did not show up to testify for the prosecution.

AUSTINTOWN -- An Austintown man suspected of driving drunk was allowed to go home in September after showing police a civil deputy's identification.

Police said they didn't see the man driving, and as a result they couldn't arrest him on a charge of driving under the influence.

The next day, the man was charged with impersonating a police officer.

That charge, however, was dropped when Mahoning County Sheriff Randall Wellington failed to show up for the man's trial in late December. The sheriff had been subpoenaed to testify about the differences between a civil and full-time deputy.

Wellington said his subpoena for the trial was accidentally sent to the man's defense lawyer.

About the case: Police first went to the man's Black Oak Court house about 4 p.m. Sept. 16, when they received a call from a concerned citizen reporting a drunken driver on Interstate 80. The registration for the car belonged to the Black Oak Court man.

Austintown Police Chief Gordon Ellis said Patrolman Thomas Collins went to the man's house in an effort to see him driving. Ellis said police need to see a driver breaking a traffic law before they can stop him or her and administer tests for driving under the influence.

But Ellis said that the man pulled into his driveway the same time Collins arrived at the home.

"In a DUI, you prefer some type of driving activity. In this case, there is little to none, simply because he pulled right into the driveway." Ellis said. "If you can't substantiate your probable cause for the traffic stop, then the DUI that happens afterwards will be inadmissible."

In the report: Collins' report states that he watched the man "stumble out of the vehicle and stagger towards this officer's cruiser ... a strong odor of alcoholic beverage was detected from the driver, along with having slurred/mumbled speech and glassy/bloodshot eyes."

The report states that Collins asked the man for identification. The man then pulled out his wallet and flashed a badge.

When Collins asked the man if he was a deputy, he replied, "yes." Ellis said Collins felt that without a traffic violation, he couldn't arrest the man on a charge of driving under the influence, so he let him go into the home.

Collins later contacted the sheriff's department and learned that the man was a civil deputy. The man was arrested the next day, charged with impersonating a police officer.

Terminated: His civil commission was terminated by Wellington on Sept. 18, and a trial date was set for Dec. 20 in county court in Austintown.

Court records show that on Nov. 8, deputy James Craven received a subpoena stating that Wellington was needed to testify in the man's case. Assistant County Prosecutor Ken Cardinal said he wanted Wellington to testify about the differences between a civil and full-time deputy.

Cardinal said he did not speak to Wellington before the trial.

Wellington said he never received the subpoena. He said Craven was charged with serving several subpoenas, and never noticed that he did not receive the subpoena for the sheriff.

Wellington said clerks at the county court told him the subpoena was accidentally placed in a folder sent to the man's attorney, Michael Rich. Wellington stressed that he was willing to testify.

"I could've been there in 10 minutes if they'd have given me a call," Wellington said of the trial.

Defense lawyer's comments: Rich, however, said he did not receive a subpoena for Wellington. He stressed that as the defense attorney, he would not have received a subpoena issued by the prosecutor.

"We wouldn't receive anything like that," he said. "The subpoena went out to the proper people. The defense council or the defendant has nothing to do with it."

Cardinal said that without Wellington's testimony, he couldn't prove that the man was not a full-time deputy. He said that as a result, he dropped the charges.

hill@vindy.com




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