Why The Police Did No Wrong Regarding the Mel Gibson Drunk-Driving Arrest Report: If They Did Omit Gibson's Anti-Semitic Remarks, That Was Only Proper

By JONNA SPILBOR

Thursday, Aug. 03, 2006

Last week, as the world now knows, Oscar-winning actor and "Passion of the Christ" director and producer Mel Gibson was arrested and charged with driving under the influence of alcohol (DUI). Gibson is reported to have hurled a string of highly offensive comments at the officers who stopped him during the early morning hours of July 28, as he was speeding along a California highway, near his home in Malibu. He has since apologized, blamed his alcoholism, and sought treatment.

According to a report published by the website TMZ.com, Gibson went on a "rampage" when he was arrested, spewing - among other remarks -- a slew of anti-Semitic epithets, accusing the "Jews" of being responsible for "all the wars of the world," and referring to members of the religion as "F***ing Jews." The statements were repellent: indefensible, hateful, and embarrassing. No one should defend them, and I certain will not.

But worse yet, in the opinion of some, is what appears to have been the wholesale omission of these inflammatory statements from the original police report. That omission has sparked a flurry of accusations against the Los Angeles Sheriff's Department, with critics claiming that the agency attempted to conceal the less-than-flattering details of Gibson's arrest in order to protect this public figure from public scorn, and possible career consequences. According to critics, only when the full report surfaced, was the LASD's bad behavior revealed.

Was it really bad behavior? Were these omissions a failed cover-up, as many have suggested, or just plain old common sense on the part of police officers?

I've been a criminal defense attorney for thirteen years - ten of them, exclusively in Southern California -- and based on my experience, I side with the Department on this one.

The Police Are Right: Gibson's Statements Were Irrelevant to His Offense

From a purely legal standpoint, the decision to include or exclude Gibson's religious slurs in the original police report turned on one question: In the arresting officer's professional opinion, did Gibson's statements either inculpate or exculpate him from the crime for which he was charged, namely DUI?

My guess is that they did neither.

Make no mistake, there are several types of statements made every day by motorists who are stopped for suspected DUI, and some of these are indeed useful for purposes of prosecuting the offenders. But many are not - in light of the breathalyzer and field sobriety tests that will form the core of the case. Whether the suspect was driving a vehicle with a blood-alcohol level of .08 or higher (the legal limit in California) is obviously the key to the offense.

According to reports, Gibson was driving 87 mph in a 45-mph zone on Pacific Coast Highway; a bottle of tequila was found in his car; and he failed both a field sobriety test, and a breathalyzer given at the scene.

The breathalyzer and sobriety tests surely are more reliable than, say, the suspect's own account of his evening: He'll typically round the number of drinks he's had down to the nearest single digit, and exaggerate the amount of time since his last alcoholic beverage (usually rounding back to the previous calendar day).

Granted, there are defenses to the results of these tests - contending they may have been inaccurate due to compromised measuring equipment, or some other factor. (Such defenses make DUI a notoriously hard crime to actually prove.) But if the tests are thrown out, a conviction is basically rendered impossible: Suspects aren't convicted based on remarks alone.

What do DUI arrestees typically say? Perhaps the "stand-up-comedian" suspect will attempt to wow the crowd with one or two unfunny jokes -- usually to lighten the mood after his right finger has awkwardly slid off the tip of his nose and into his left eye six or eight consecutive times during the field sobriety tests.

But only when all else fails, in my experience, will the defendant sling a few choice, four-letter words at the arresting officers. Indeed, Gibson apparently was already under arrest and in the police car when he let forth his tirade. His particular four-letter words were in the context of slurs - and that's despicable. But is it relevant to the offense?

The truth is that nothing the defendant says really can matter, when the breathalyzer test, and the reasonably objective field sobriety tests, are speaking volumes. Granted, it may be true that a belligerent driver is more likely a drunk driver, but alcohol influences people differently, and some drinkers get quiet and morose - surely, that shouldn't count in their favor. Moreover, being arrested for DUI when one is not, in fact, drunk may make some people understandably irate.

Under California law, neither the breathalyzer or field sobriety tests are compulsory. And perhaps in a case where the defendant refused to take either, his statements might become relevant. But this was not that case.

The Police's Decision to Omit the Statements: Cover-Up, or Just Common Sense?

If we, as a society, trust the police with the discretion to "protect and serve," shouldn't we also trust them with the discretion to know when not to kick up dust?

Let's face it, if John Q. Public were pulled over on Pacific Coast Highway, and said to the police something as asinine, ignorant, ugly, and biased as, "The Jews are responsible for all the wars of world," it might very well have been ignored as the drunken ramblings of an idiot. But when a star like Mel Gibson says it, suddenly it's supposed to have credence? Why give comments like these a life they don't deserve?

I'd like to think the apparent decision to leave Gibson's derogatory comments out of the arrest report was less a cover-up, and more an instance of someone using common sense.

The Sliding Scales of Justice: What Punishment Should Gibson Receive?

That said, let us not lose sight of the other elephant in the room. DUI - while a misdemeanor in California, unless it happens repeatedly -- is one of the most dangerous behaviors on the books. If his ability was indeed impaired, Gibson could have killed himself, or any number of other people sharing the road that night. A moving vehicle can be even more deadly than a loaded gun.

That's why we try to punish DUI harshly. Which leads to an interesting question: Should Gibson's DUI be punished especially harshly because he's a public figure? I think the answer is, arguably, yes.

Whenever a celebrity gets arrested for DUI, the judges, prosecutors and even defense attorneys have a chance to do something unusual: Change public perceptions, as well as punish the offender.

A typical sentence for a first time DUI offender in California consists of a fine (usually around $1,300 bucks), participation in an alcohol program (like Alcoholics Anonymous), suspension of one's driving privileges, and 48 hours in county jail. In most jurisdictions, including California, the defendant never need actually show his face in court.

The super-wealthy Gibson won't even sneeze at shelling out $1,300 (or lawyers' fees). He's already enrolled in alcohol rehab on his own, and he can hire a chauffeur. As for the 48 hours in jail, this really boils down to a couple of hours on a Saturday, followed by a night in your own bed, and another couple of hours the next day. Big deal.

So what kind of punishment might actually get through to Gibson - and serve the public at the same time?

As part of Gibson's plea agreement - and I assume he will plead guilty, as his public statements seem to concede the offense -- he could agree to make a donation to a drug and alcohol rehabilitation facility, or to a program educating kids never to get behind the wheel drunk. Or better yet, he could agree to spend time talking to kids about his own terrible experience, and despicable behavior.

Just as Gibson is capable of capturing the attention of a worldwide audience with his movies, he is also capable of giving back in profound ways. A smart judge will make sure that Gibson's sentence both affects him, and affects others, too.


Jonna M. Spilbor an attorney and legal analyst on "Kendall's Court", airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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