Both Sides of the Law: Milwaukee police often face minimal punishment for driving drunk

Editors note: This report was originally published on Oct. 25, 2011.

This is part two of a three-part series. Read part one and part three.

Milwaukee police Officer Andrew Wagner was driving drunk when he struck Luisa Villa on the freeway.

Villa was standing beside a disabled car, trying to help the driver, when Wagner's pickup truck plowed into her, according to the accident report. She was pinned between the two vehicles as they collided, then thrown into the median. She landed on the ground, unconscious.

At least one witness thought she was dead.

But Villa, then 20, survived. She left the hospital with a walker and stitches across her face.

"I made it to the couch and didn't move for six weeks," she said.

That's longer than Wagner was off the job, according to his personnel record. He was suspended from the Police Department for 10 days.

Wagner, who was off-duty when the crash occurred, is not an anomaly. At least 35 members of Milwaukee's police force have been disciplined by the department after being arrested for driving drunk off-duty since they were hired, a two-year Journal Sentinel investigation found.

They are among 93 officers who have been sanctioned after the department concluded they violated state laws or local ordinances ranging from shoplifting to sexual assault, according to the newspaper's review, the first of its kind involving the Milwaukee police.

INTERACTIVE DATABASE: Search officers and their case histories

Wisconsin is the only state in which first-offense drunken driving is usually a traffic violation rather than a crime. Numerous attempts to change that in the Legislature have never gotten off the ground in a state where so many people drink socially and the Tavern League is a political force.

Even so, one drunken-driving conviction is enough to get someone fired from Milwaukee's largest cab company. A second offense — which rises to the level of a misdemeanor https://projects.jsonline.com/database/archive/flowchart1.html results in a lifetime ban from the commercial driver's license needed to work as a truck driver.

But Milwaukee cops caught drunk behind the wheel continue to be responsible for stopping drunken drivers and enforcing other laws, even if they've been convicted more than once.

That's not the case in many departments around the country. And it tells the community the police don't take drunken driving seriously, advocates say.

"It puts people's lives and livelihoods at risk," said John Vose, state spokesman for Mothers Against Drunk Driving. "When someone in law enforcement drives drunk, that just makes it all the more difficult for us to send the message that drinking and driving is wrong."

Wagner is one of 10 officers whose intoxicated driving has crossed the line into potentially criminal conduct by injuring someone in a crash, having a gun in the car, having a child as a passenger or getting busted more than once, the newspaper found. Just four of them were convicted of crimes.

Wagner, whose blood-alcohol level was more than double the legal limit, initially was charged with two misdemeanors in connection with the 2004 crash that injured Villa. As part of a plea agreement, the criminal charges were dismissed. Instead, Wagner, then 25, was ticketed for first-offense drunken driving — the same outcome he would have faced if he had simply been pulled over rather than causing a crash with injuries. He was fined $300, according to court records.

Villa can understand that Wagner was driving drunk in the first place. He was young, she said, and in Wisconsin, driving drunk is practically a rite of passage.

But the fact that Wagner didn't go to jail bothers Villa. She suspects he got a break because of his job with the Police Department.

"I know they tend to take care of their own," she said.

Wagner did not respond to a request for comment.

INVESTIGATING AN OFFICER: A look at the complaint and review process

Milwaukee County District Attorney John Chisholm declined to discuss Wagner's case or the reasons behind the plea deal. In a written statement, Chief Deputy District Attorney Kent Lovern pointed out that Wagner paid more than $22,000 in restitution.

Court records show Wagner's insurance company actually made the payment to Villa.

Milwaukee Police Chief Edward Flynn also refused to be interviewed by the Journal Sentinel. But in a video presentation to officers, the audio portion of which was obtained by the newspaper, he said drunken driving is "as much a threat to officer safety as any other issue."

"Anybody who is a police officer who drives drunk puts their life in danger and the life of the public in danger," he said during the speech.

The video was shown to officers about a month after a Journal Sentinel reporter shared the newspaper's findings with a police spokeswoman and asked for an interview with the chief. In the video, Flynn said he was surprised by how often Milwaukee police drive drunk and acknowledged the department had not been dealing with the problem effectively.

"This is an issue of concern everywhere, but when you couple that issue with what is frankly acknowledged — too often humorously — with a culture of drinking in Wisconsin, you have a recipe for serious problems," he said.

Despite the prevalence of alcohol-related problems within the department, very few people have been referred to the employee assistance program, which provides counseling, Flynn said.

"We refer about one-fifth the numbers that the Fire Department refers," he said.

An employee committee was working to develop a new program that includes education, support and discipline for officers with alcohol-related problems, he said. Training began earlier this month.

That's a step in the right direction, said Nina Emerson, director of the Resource Center on Impaired Driving at the University of Wisconsin Law School. Early intervention can reduce both drunken driving and domestic violence, which is often fueled by drinking, she said. And it can help change a culture that doesn't take impaired driving seriously.

"It's such a huge problem in this state," she said. "We should all know better."

That goes double for law enforcement, said Milwaukee County Sheriff David A. Clarke Jr.

It's a clear conflict for someone who has driven drunk to pull over other drivers for the same offense, according to Clarke, who said he is getting backlash from the union because he won't allow a twice-convicted deputy to go out on patrol.

"If I'm going to hold the public's feet to the fire in terms of drunken driving, how can I not hold my officers' feet to the fire?" he asked. "It's dangerous behavior."

It's even worse if an officer has racked up multiple offenses or lied about it, he said.

Alcohol abuse on record

Milwaukee police Officer Jason E. Rodriguez, hired as a police aide in 1997 at age 18, has a history of alcohol abuse and dishonesty, according to court records and summaries of internal investigations.

In June 1998, he was ticketed for underage drinking at Summerfest, according to a summary. Rodriguez told his supervisor he was merely holding a beer for a friend who was in the restroom. But the Milwaukee County sheriff's sergeants who ticketed him said Rodriguez admitted drinking "one or two beers."

He was suspended for one day for drinking and another five days for lying.

Rodriguez's first drunken-driving offense occurred less than six months later, court records show. But police documents do not reflect the incident, which occurred Dec. 24, 1998. It is not listed on Rodriguez's personnel record.

Rodriguez became a recruit officer in 2000, when he was 21.

Fourteen months later, Rodriguez was charged with second-offense drunken driving and obstruction, both misdemeanors, after he reported his car stolen in Madison.

According to the criminal complaint:

Rodriguez told Madison police Officer Jimmy Minton he had parked his Jeep on the street around 4 or 5 a.m. Nov. 10, 2001, and walked several blocks to a gas station for directions. When Rodriguez came back about half an hour later, he found the Jeep had been struck by another vehicle, he told Minton.

The evidence didn't support Rodriguez's story.

The Jeep's rear quarter panel, bumper and tailgate were damaged, a tire was bent and a taillight was broken. But there was no debris nearby. Instead of paint from another vehicle, there were wood chips embedded in the Jeep. Tire damage also indicated the Jeep had been driven after the wreck.

"Officer Minton concluded that Mr. Rodriguez had in fact collided with another object and was attempting to cover up a hit-and-run violation," the complaint says.

Rodriguez denied he had been drinking, but a preliminary breath test put his blood-alcohol level at 0.12. At that time, Wisconsin's legal limit for driving was 0.10. It has since been lowered to 0.08.

As the result of a plea agreement with Dane County prosecutors, Rodriguez pleaded no contest to the misdemeanor charge of second-offense drunken driving and was ticketed for a less serious obstruction charge — a county ordinance violation rather than a crime. He was sentenced to 15 days in jail and fined $800. His driver's license was revoked for a year.

Rodriguez did not respond to a certified letter seeking comment for this story. He attended a chemical dependency program for two months, according to a letter in his court file.

Then-Chief Arthur Jones fired Rodriguez, who appealed to the Fire and Police Commission. At his appeal hearing in November 2002, Rodriguez testified that the incident had made him realize he was an alcoholic. He acknowledged he had embarrassed himself, his family and the department. Rodriguez also testified that he had quit drinking.

The commission overturned Rodriguez's firing and reduced his punishment to a 70-day suspension. Commissioners agreed to reduce it to a 40-day suspension if he attended Alcoholics Anonymous weekly for 12 weeks and continued treatment for two years.

Rodriguez's personnel record shows he has since received three awards.

In 2005, he received a merit award for arresting two gang leaders. In 2009, his anti-gang unit received a service award. In 2010, Rodriguez received a meritorious service award for developing a strategy to bust a burglary ring.

Commercial crackdown

In 2005, the state got tough on truckers who drive drunk. A second drunken-driving offense since then — even with a low blood-alcohol level and no crash — means someone can never again qualify for a commercial driver's license, according to Sgt. Paul Wolfe of the Wisconsin State Patrol.

"You're done," he said.

The penalty applies regardless of whether the person was driving a big rig or a personal car at the time.

No state law or department policy lays out similar sanctions for Milwaukee police.

States such as Alaska, Idaho and Tennessee prevent people with recent drunken-driving convictions from becoming police officers.

Not Wisconsin.

Joseph Zawikowski's history of problems with alcohol, which included one conviction for drunken driving and two for underage drinking, wasn't an issue here. In 2004, at age 24, he was hired as a Milwaukee police recruit.

Less than a year later, Zawikowski was arrested for drunken driving again.

The drunken off-duty cop approached a security guard in the parking lot of Wheaton Franciscan Health Care-St. Francis and asked for help finding a woman named Stephanie, according to a summary of the internal investigation and court transcripts. Zawikowski's strange behavior alarmed the guard, who thought Zawikowski was impersonating an officer.

"He, in effect, threatened the guard by telling him he was a Milwaukee Police Department employee, and he better not take any action," Assistant District Attorney Nancy Ettenheim said in court.

The security guard called police, and they pulled over Zawikowski's car a few blocks away.

He could barely stand and couldn't spell his own last name, according to the transcripts. Officers didn't ask him to do any field sobriety tests — such as walking heel-to-toe - because they were afraid he might hurt himself, records say.

Zawikowski's blood-alcohol level was 0.215, nearly three times the legal limit.

He pleaded guilty to second-offense drunken driving, a misdemeanor.

During his sentencing hearing in January 2006, Ettenheim said Zawikowski never should have been hired as a police officer.

"When I look at his record . . . the Police Department should have been on notice that he was a very poor candidate for employment in the first place," she said.

The shame and embarrassment over his conviction will never go away, Zawikowski said in an interview with the Journal Sentinel.

"Unfortunately, that's what it took for me to get my life together, but at least it is now," he said.

The tickets for underage drinking and for his first drunken-driving offense, when he was 19, were not a big deal at the time, he said.

"Obviously I was very immature," he said.

Zawikowski tried to stop drinking — or at least to stop mixing drinking with driving — after the first time he was caught driving drunk, but the stresses of his new job as a police officer and the murder of his uncle around the same time were too much, he said.

He remembers virtually none of the events leading up to his arrest.

"When I came to, I was in the back of a squad car, and that's when it hit me: How did I get to that point? How did I let this happen? There's no one else left to blame except for yourself. I just couldn't believe it."

Zawikowski was sentenced to 60 days in jail, which he served on house arrest, he said. His sentence was reduced to 45 days for good behavior.

He fully expected to be fired from the Police Department, but said he is extremely grateful he wasn't. Instead, he was suspended for 16 days, according to his personnel record. He has not been disciplined since.

"I did feel a lot of guilt, that here are all these other guys going out there working really hard, and I kind of ruined the good work out there. I feel like I let the department down and myself," he said.

He also knew he needed to get treatment.

"I learned that I really can't handle it, so I live a different lifestyle now," said Zawikowski, 31. "I have purchased a house, gotten married. I live a totally different life. . . . I don't know what else would have caused me to change."

Today, he works on bicycle patrol in District 7.

Lieutenant got a break

In the internal video in July, Flynn asserted that he had recently cracked down on drunken driving and "generally increased the discipline dramatically to three and four and even six weeks' discipline."

But in 2008, Flynn suspended Lt. Jason Smith for just 11 days for driving drunk with his loaded, department-issued gun in the car and refusing a breath test, according to Smith's personnel record and a summary of the internal investigation.

According to the summary:

Another driver called Brown Deer police after spotting Smith's Mazda swerving, changing speeds and driving over a median into a snowbank around 9 p.m. Feb. 27, 2008. The caller said Smith drove out of the snowbank and parked behind a strip mall.

When officers arrived and asked what he was doing there, Smith answered: "Taking a piss, and I'm Lt. Smith with the Milwaukee police."

Smith's speech was slurred and he smelled of alcohol. He failed field sobriety tests.

The Brown Deer officers asked Smith twice if he was armed, and both times he said no. But when police searched his car, they found his gun on the passenger floorboard, leaning against the center console. It would have been easy to reach while he was driving, the internal affairs investigator concluded.

Smith refused a breath test on the scene, so he was taken to Columbia St. Mary's Milwaukee. There, he also refused a blood test. When officers informed Smith that his blood would be drawn whether he consented or not, he did not resist. His blood-alcohol level was 0.13.

Smith later gave internal investigators this account:

He had worked more than 24 hours with only about half an hour of sleep. When he left work, one of the officers under his command stopped him and asked for his help with some personal problems. The two went to a tavern, where Smith had at least four drinks.

While he was drinking, his gun was holstered to his belt. When he got back in the car to drive home, he took it off.

On the way, he got lost and figured he must have fallen asleep while driving. He stopped behind the buildings to try to figure out where he was, but didn't remember urinating there.

He told the Brown Deer officers he wasn't armed because he didn't have his gun on him while he was standing in the alley — it was in the car. He refused the alcohol tests because he thought it was in his best legal interest.

"In the end, Lieutenant Smith stated that it was an error in judgment to drink and drive after not having enough sleep and that he accepts responsibility for all of his actions," the summary says.

Refusing an alcohol test is a traffic violation that can result in a one-year driver's license suspension.

Being armed while drunk is a misdemeanor with a maximum jail term of nine months.

But Smith wasn't convicted of either offense.

The Milwaukee County district attorney's office asked Kenosha County Assistant District Attorney Richard Ginkowski to act as a special prosecutor in the case.

"My primary goal is how do I best and most quickly protect public safety," Ginkowski said in an interview. "Drunken driving is bad in the first place, but, you know, it can happen to anybody."

Ginkowski was more concerned with the fact that Smith had a gun.

"If he had been doing something inappropriate with his gun, he should have been prosecuted and should not have continued as a police officer," Ginkowski said.

Not all prosecutors agree with that approach.

For example, Milwaukee police Officer Robert Waldoch got a deferred-prosecution deal from Ohio prosecutors in 1999 after he fired at least seven shots near downtown Cleveland and jumped into a river to try to escape police, according to a summary of the internal investigation. Waldoch later told investigators he drank "three or four" beers but wasn't drunk, the summary says. Authorities did not do a blood-alcohol test.

Waldoch was suspended for five days and remains on the force, according to his personnel record. He did not respond to an email requesting an interview.

Ginkowski said he surely would have charged someone like Waldoch outright in hopes of having him removed from the job.

Smith, though, "wasn't waving his gun around" and didn't fire it, Ginkowski said. He had a positive record with the department and didn't lie to investigators. Smith also accepted responsibility for his actions by pleading no contest to first-offense drunken driving in Municipal Court, Ginkowski said.

As a result, he offered Smith a deferred-prosecution agreement that required him to get treatment, avoid breaking the law for a year and comply with discipline handed down by the Police Department, according to records.

In exchange, Ginkowski did not file the firearms charge.

Smith got another break when the Brown Deer village prosecutor, Rebecca Boyle, dismissed Smith's ticket for refusing the breath and blood tests.

Smith's personnel record lists two commendations.

In 1991, he received a commendation for arresting five suspects in an attempted robbery.

In 1996, Smith received another award, this one for recovering a sawed-off shotgun and connecting it to suspects in a string of armed robberies.

Smith did not respond to a certified letter seeking comment for this story. As a result of the drunken-driving conviction, he was fined $779, according to the summary. His driver's license was revoked for 61/2 months.

Smith successfully completed the deferred-prosecution deal. There is no other discipline on his record.

If Smith had been a driver for American United Taxi Cab Co. in Milwaukee, he would have been let go after the incident.

"Drunken driving, we do not accept at all," said Mike Richlin, general manager of the cab company. "There's no question, even on a first offense."

As a Milwaukee cop, though, the outcome for Smith wasn't nearly as dire. In August, Flynn promoted him to captain.

In the video presentation to officers, Flynn didn't address the potential danger of mixing guns and alcohol.

But he did talk about it during a Milwaukee Common Council committee meeting in May. At the time, the new law allowing Wisconsin residents to carry concealed weapons was being debated in the state Legislature.

At the meeting, Flynn said citizens with recent drunken-driving convictions shouldn't be allowed to carry guns.

"Obviously," he said, "the state has an interest that if you're in the position to carry a firearm lawfully, you do so not under the influence of any substances."