Niles Prosecutor Terry Swauger will be looking in another direction in the coming days to determine whether a driving-under the-influence charge against Warren police officer Ben Harrell will go forward.
Harrell, 45, Warren’s chief traffic officer, was charged with DUI in October after a five-vehicle accident on Youngstown Road that resulted when Harrell hit the back of a vehicle while he was off duty.
But on Friday, Swauger dismissed the DUI charge in Niles Municipal Court, where Swauger was handling the case by assignment, after Swauger discovered that there would be a problem prosecuting the case.
Swauger learned that Harrell was the officer who calibrated the Breathalyzer machine used to give Harrell his Breathalyzer test. The machine indicated Harrell’s blood-alcohol level was 0.207, more than twice the legal limit of 0.08.
A routine part of any DUI case is the testimony of the person who calibrated the machine, indicating that the machine was working properly. Harrell can’t be a witness in this case because he is the defendant, Swauger said.
Judge Thomas Townley of Niles Municipal Court, handling the case by assignment, asked Swauger to check to see whether the case could be prosecuted under a different statute of Ohio law.
Harrell was charged under a statute that involves results of a Breathalyzer test, but another statute could be used to charge Harrell based on the testimony of officers at the scene.
Deputy Brian Kaintz of the Trumbull County Sheriff’s Office met Warren police officers at the Warren Police Department to administer the Breathalyzer test on Harrell after Warren police officers brought Harrell there from the accident scene, Swauger said.
Swauger will be contacting the Warren police officers who were at the scene to determine whether their testimony would support a DUI charge. Swauger said he doesn’t know yet which officers investigated the accident.
As for the circumstances surrounding the Breathalyzer test, Swauger said the situation was unusual enough that he doesn’t believe the officers involved considered the possibility that Harrell’s job might interfere with the Breathalyzer results.
“I don’t think anybody ever thought about it at the time,” Swauger said.