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DUI CASE Charges dropped against official after police officer fails to appear



Published: Thu, September 16, 2004 @ 12:00 a.m.



There was no proof without the arresting officer's testimony, the judge said.

By MARALINE KUBIK

VINDICATOR STAFF WRITER

CAMPBELL -- Charges of driving under the influence and passing left of center were dismissed against the president of the Campbell Board of Education after the arresting officer failed to appear for his trial.

Robert T. Dolan was in court Tuesday.

Dolan's attorney asked that the charges against him be dismissed because the state had no proof against him after Thomas McCutcheon, a former patrolman for the Campbell Police Department, failed to appear to testify despite being sent a subpoena.

Police officers must have probable cause to make an arrest, explained Judge John P. Almasy, and must testify to that in court.

Standard procedure

It is standard procedure for an attorney representing an individual charged with driving under the influence to make a motion that those charges be dismissed based on an absence of probable cause, Judge Almasy said. Without the arresting officer's testimony, there is no proof of probable cause, he said.

The same is true when it comes to considering test results of the driver's blood-alcohol level.

The test must be administered within a certain period of time, and the arresting officer must testify that it was administered as required by law, the judge said.

According to the police report, Dolan's blood alcohol measured 0.224 when he was arrested May 1. Ohio's blood-alcohol limit for motorists is 0.08.

The report also states that McCutcheon initiated the traffic stop after Dolan's blue Ford pickup truck traveled left of center several times, almost striking the police car, while traveling north on 12th Street.

Held in contempt

Although McCutcheon could be held in contempt for failing to appear, Brian J. Macala, the city's law director, said that is unlikely.

It is not uncommon for individuals who have filed charges not to appear in court, although usually it is victims of domestic violence who don't show, Macala said. But, if one person who ignores a subpoena is held in contempt, Macala said, they all should be held in contempt.

In the eight years he's been a prosecutor in Campbell, Macala said he can't recall anyone being singled out.

kubik@vindy.com




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