City faces possible lawsuit over DUII case made by Officer Dave Cox, who is under investigation

The ongoing investigation into Corvallis Police Officer Dave Cox at least in part concerns the DUII arrest earlier this year of a Corvallis man who was completely sober.

Cox has been on administrative leave since Sept.14 while the department investigates potential policy violations, according to Lt. Dave Henslee. The department has remained silent about the specific reasons for the investigation, but Henslee confirmed that one factor was Cox’s arrest of a man whose blood alcohol level proved to be 0.00 percent and who also tested negative for drugs.

An attorney representing the man arrested by Cox filed a tort claim notice — formally putting the city on notice of the possibility that it might be sued over the matter — two weeks before Cox was placed on leave.

“My client should never have had to go through this,” Dan Rayfield, the man’s attorney, said. “We filed a tort claim notice saying, ‘Hey, there’s going to be an issue here.’ ”

That notice was sent to the city of Corvallis on Aug. 30.

Cox has been widely recognized for the number of DUII arrests he has made. Of the 35 DUII arrests made by Corvallis police in the month of May this year, 27 were made by Cox.

However, six of the 27 people arrested by Cox that month had blood alcohol levels under the legal limit and were not found to have been using drugs. And about one-quarter of the people he arrested were either not prosecuted by the District Attorney’s Office, or had charges dismissed by the court.

But all of those people still have the DUII arrests on their records. State law says arrests for motor vehicle violations cannot be removed from a driver’s record — even if the individual was never actually charged or convicted.

“An arrest for traffic is not expungeable,” said Corvallis defense attorney Jennifer Nash. So when innocent people are arrested, she said, “There is actual damage.”

Arrest records are accessed every time a law enforcement officer stops someone, for any reason. Employers see those records when screening prospective employees, and an arrest for DUII, whether unfounded or not, can have a negative effect.

Rayfield’s client was arrested one night when he went to pick up his wife and some friends at Tailgater’s bar. When he got to the parking lot, his wife sent him a text message saying she and her friends had moved to nearby Clodfelter’s. The man pulled around the corner, parked his car and got out.

Cox followed and pulled in behind him.

“I identified myself and asked why he had driven such a short distance,” Cox wrote in his arrest report.

The man explained the situation. Cox wrote in his report that he couldn’t smell alcohol on the man’s breath. But Cox did note that the man’s “eyes were extremely watery, bloodshot and glassy.” Cox wrote that the man “was moving and talking very slowly and was slurring his words,” and his “pupils were dilated and he had a dazed look on his face.”

Cox asked how much he had been drinking and how much marijuana he had smoked. The man said he had not had any alcohol and that he had never in his life smoked marijuana. He opened his mouth and stuck out his tongue at Cox’s request.

“I could see a light green coating on (his) tongue,” Cox reported, “and he had several raised and enlarged taste buds on the back of his tongue.”

The man had been chewing green gum and had a cold, according to Rayfield.

“I asked (him) to be honest with me and I asked him how much marijuana he had smoked,” Cox reported.

Once again, the man said he had never smoked marijuana or cigarettes.

“I asked why he has several raised and enlarged taste buds on the back of his tongue if he does not smoke anything and he said he does not know.”

The man agreed to a field sobriety test and a breathylizer test, which registered 0.00. He also submitted urine for a drug test, the results of which showed a trace amount of codeine from cold medicine the man had a couple of days before his arrest but no marijuana or other drugs.

Even though the man was not intoxicated, Cox described the man’s eyes as “extremely watery, bloodshot and glassy” and said he was moving and talking slowly and was slurring his words and that he had a dazed look on his face.

Twenty-two of the 27 DUII arrest reports filed in May by Cox repeated the same observations, almost word for word. In four others the only difference in the description by Cox was the drivers were “moving and talking quickly,” and were arrested for DUII drugs.

Rayfield said his client’s experience showed Cox’s mentality toward DUII arrests.

“I believe the mindset is, ‘We may arrest one innocent person, but we have 10 other guilty people that aren’t on the streets driving drunk,’” Rayfield said. “I think that’s a personal Cox policy.”

Henslee vehemently denied the police department had such a policy.

“Our goal is the protection of everybody’s civil liberties,” he said. “We report to and respond to the people in this town — they are our bosses. We work for them.”