AUSTIN (KXAN) — An Austin police officer’s actions were called “inexplicable” by the police chief after he drove to work above the legal limit and continued to drive a patrol car after finding out he still had alcohol in his system.
On Tuesday, Oct. 25, 2016, Officer Michael Cuellar arrived for his 5:45 a.m. to 3:45 p.m. shift at the East Substation at 812 Springdale Rd. After showing up at 5:34 a.m., the officer drove a patrol vehicle to Travis County Central Booking downtown to perform an Intoxilyzer Operator (IO) practice test on himself around 7:30 a.m., a requirement for maintaining his certification.
The test results indicated his blood alcohol concentration was 0.064. Cuellar then drove back to the substation and reported the test to his supervisor, Sergeant Steve Urias, who ordered Cuellar to go off duty until he was no longer under the influence. Sgt. Urias was suspended for 60 days, starting Tuesday, for not telling his commander and failing to follow reporting procedures.
Three days after the test, the BAC results were discovered by the Department of Public Safety and brought to the attention of APD Lt. Blake Johnson. The report prompted an internal investigation, according to a disciplinary memo from Interim Police Chief Brian Manley to the city’s director of Civil Service.
Officer Cuellar, a six-year veteran with the department, told investigators he drank about three glasses of vodka the evening before his shift, estimating each drink contained about six or seven ounces. Cuellar said he then drank two glasses of wine, with his last glass being at 10:15 p.m., 7 hours and 30 minutes before the start of his shift.
The officer said, before the investigation, he regularly drank a similar amount of alcohol four nights a week. Cuellar told investigators that before taking the test that Tuesday morning, he hesitated and questioned if he was “OK to take the test.” He also told officers that he had no reason to doubt the accuracy of the test.
The Austin Police Department’s scientific director determined that at 5:30 a.m., Cuellar’s alcohol concentration was at least 0.084, which is more than the legal limit to drive of 0.08. “All objectively reasonable conclusions agree his blood alcohol concentration rate would have been slightly higher at the time he left his home,” the memo states.
The department says Cuellar was up-to-date on his training and retraining on APD’s zero tolerance policy for driving while intoxicated. Official policy requires an indefinite suspension, effectively a firing, for first-time administrative DWI offenders.
Chief Manley says that Cuellar both driving to work while intoxicated and reporting to duty while above the legal limit warrant an indefinite suspension. Manley says the officer also exposed the department to “inordinate liability” by then driving to Central Booking while at least under the influence of an alcoholic beverage, in the event he was involved in a crash or critical incident.
The chief says Cuellar’s decision to drive back to the substation after seeing his test result was “unjustifiable” and “inexplicable.” Manley continued, “And rather notify a supervisor via telephone, he again endangered himself and the public that morning by driving and APD patrol vehicle.”
At a 4 p.m. press conference, Chief Manley said Cuellar, who has not had any significant issues in the past, will not face any criminal charges.
Cuellar has 10 days starting on Monday to decide whether he wants to appeal his firing. The department says he is appealing the ruling and will be represented by CLEAT.
Sgt. Urias, who has been with the city since 2009, agreed to waive his right to an appeal of his 60-day suspension, also accepted that he will not be able to take the lieutenant’s promotional exam for two years. Urias will also be on a one-year probation starting on the day he returns to duty. If he gets another violation during his probation, the sergeant will be fired without the right to appeal.