On December 16, 2017, a a 16- year veteran of the Pearland Police Department was arrested for driving while intoxicated (DWI). According to Pearland Police Department press release, Officer Gebert was driving a Pearland P.D. patrol car and was dressed in full police uniform. The press release did not indicate whether Officer Gebert was also charged with unlawful carrying of a weapon. Texas law forbids anyone--including police officers and license to carry holders--to possess a weapon when they are intoxicated.
No other details concerning the arrest have been released as would be normal for a high profile civilian arrested for DWI or unlawful carrying of a weapon. A standard press release in a high profile civilian arrest would contain the reason for the traffic stop, the officer's observations of the suspect's eyes, speech, odor of alcohol on their breath, admission to drinking, etc. Officer's observations after conducting balance and coordination exercises, often referred to as sobriety exercises, such as the 9 step walk the line exercise, and also a one legged stand. The report would end with a report on whether a breath or blood test was failed or refused. There was also no report of whether a search warrant was issued if he refused a breath or blood test. Search warrants are a common practice throughout Texas when a person refuses a chemical test. Why was there no report of any of this information for Officer Gebert? Officer Gebert is certainly entitled to the same presumption of innocence as every citizen is guaranteed. But why is he being treated differently by his own police department?
The law for DWI is the same for police officers and it is for citizens. The police department internal affairs investigation will require Officer Gebert to submit to a breath or blood test in order to keep his job, regardless of whether he refused a breath or blood test in the criminal investigation. Officer Gebert will also be requested to answer questions as part of the police internal affairs investigation after receiving warnings under the 1967 U.S. Supreme Court ruling in Garrity v. New Jersey. Failure to comply cannot be the sole basis for termination, but refusing to comply can lead to unfavorable inferences that can lead to termination. As a board certified DWI lawyer, I've represented many police officers accused of DWI. These officers tell me that they always feel compelled to comply with chemical testing and answering questions regardless of the fact that they have the same 5th amendment right as citizens to remain silent, and not answers question or take a breath or blood test.
There is no doubt that police officers face an intense amount of stress in their jobs. It is not uncommon for police officers to turn to alcohol to cope with this stress. I make no rush to judgment on this officer's unfortunate situation. There are clearly no facts released by the Pearland Police Department that would allow anyone to reach a conclusion that he is guilty of DWI. This is simply a blanket allegation at this point with no specific and articulate detail to support the allegation. Keep in mind that intoxication is an incredibly subjective opinion of the arresting officer. It is not uncommon for an officer to be mistaken in his/her opinion regarding intoxication. In fact, it happens everyday. Police tools such as sobriety exercises can cause sober people to "score" the subjective "clues". Breath and blood testing are not perfect, and errors are common.
The law allows persons to consume alcohol and then drive so long as they don't drink so much alcohol that they become legally intoxicated. It would certainly violate Pearland Police Department policy for an officer to have consumed alcohol before driving a patrol car while in uniform. It is important to note that a violation of a police department policy is not necessarily a crime, nor does a policy violation make Officer Gebert automatically guilty of DWI.
Whatever the facts turn out to be, it is important that Officer Gebert be treated fairly and afforded the same protections as normal citizens. No more, no less.