I’ve read a lot of commentary about the recent million-dollar verdict against a Colorado State Trooper for arresting a judge for DUI — most of it outraged. Let’s take a closer look….

Judge wins $1 million verdict against State Patrol trooper

Denver Post, October 29. A federal jury on Friday awarded a municipal judge from southern Colorado a $1 million verdict against a Colorado State Patrol trooper who arrested the judge on a drunken-driving charge in 2001.

The jury found the trooper did not have probable cause to arrest John S. Wilder for drunken driving and prohibited use of a weapon, and that he violated the judge’s civil rights. Jurors also found that Cpl. Kevin P. Turner was not entitled to qualified immunity.

Wilder, of Monte Vista, said he had offered to settle the lawsuit without a monetary award if arrest procedures were modified, an offer he said was refused…. When Wilder’s blood-alcohol content was tested, it was well below the limit that Colorado law defines as driving while impaired and the charges were dropped. The judge sued….

The initial reaction, of course, will be that this is a classic example of the courts running amuck, that the Trooper was just doing his job and got railroaded because the guy was a judge, that cops will stop arresting drunk drivers if they’re afraid of getting sued. But not so fast….. In this country, it’s a violation of a citizen’s civil rights to be arrested without probable cause to believe that he has committed a crime. So what was the probable cause to arrest the judge?

The case began on a November evening in 2001 when Turner stopped Wilder, a municipal judge in Monte Vista, for speeding. The trooper said Wilder’s breath smelled of alcohol and he had watery, pinkish eyes. The judge admitted he had consumed a glass of wine 10 minutes before being pulled over, according to court documents.

The trooper also saw an open, airline-size bottle of wine in the car, which was legal at the time. The judge told the officer he had a license to carry a concealed weapon and that there was a handgun in the car. Wilder initially refused a roadside sobriety test and was arrested. Because it is a misdemeanor in Colorado to have a gun while drunk, the judge also was charged with prohibited use of a weapon.

So, the Trooper’s evidence that the judge was intoxicated consisted of:

1. Watery, pinkish eyes; 2. Alcohol on the breath; and 3. The judge said he had a glass of wine 10 minutes earlier.

Is this sufficient to reasonably believe that he was inebriated? Of course not. You would expect an older person to have "watery, pinkish eyes", especially late at night. Alcohol on the breath tells us nothing but that there has probably been some consumption of alcohol at an earlier time. The statement about a glass of wine means little, other than explaining the odor of alcohol, and will hardly render someone intoxicated (in any event, the minimal alcohol involved had insufficient time to be absorbed into the blood stream). And, of course, the absence of field sobriety tests is immaterial: the judge not only had every right to decline the test, he probably realized from listening to DUI cases in his courtroom how unreliable these "tests" really are (see my earlier post, "Field Sobriety Tests: Designed for Failure?").

But what about the handgun? Easy: There is no probable cause to arrest if the gun’s possessor is not drunk — and watery eyes with an odor of alcohol is not "drunk". I’d say there was nothing anywhere near probable cause to arrest the judge, and the Trooper darned well knew it — but he also knew he had himself a bonafide trophy judge. I also find it interesting that the judge was not interested in the money: he offered to drop the lawsuit "if arrest procedures were modified". A million bucks seems a bit steep, but maybe some officers will get the message: you are not above the law. And if you don’t want to get sued, don’t arrest people who haven’t committed a crime.