Road Worrier

Road Worrier: Firefighter stop may have saved erratic driver -- and it might cancel her DWI conviction

bsiceloff@newsobserver.comSeptember 23, 2013 

— It was dark and raining hard, but Dorothy Verkerk drove her Mercedes with the window open and headlights off.

Fortunately for everybody on the street that night in 2011, Verkerk’s erratic driving caught the attention of Chapel Hill Fire Department Lt. Gordon Shatley.

Verkerk has two reasons today to be especially grateful that Shatley stopped her car:

The firefighter may have prevented her from causing a crash and hurting herself or someone else. And his action that night might now help Verkerk avoid being punished for driving after she had done too much drinking.

It was a Chapel Hill police officer who actually arrested Verkerk that night on a charge of driving while intoxicated. But the N.C. Court of Appeals says Shatley’s stop may have been an illegal search and seizure that violated her constitutional rights. It has vacated Verkerk’s 2012 DWI conviction.

An Orange County judge will schedule new hearings to resolve complicated Fourth Amendment questions in the case. Verkerk, 54, a UNC-Chapel Hill art professor and former Chapel Hill Town Council member, could ultimately be convicted again of DWI. Or she could go free.

Firefighter’s decision

Shatley was in charge of a fire crew heading back to the station at 10:30 p.m. on May 27, 2011, after a call that turned out to be a false alarm. His fire truck followed Verkerk’s Mercedes as it veered back and forth across two lanes and the center turn lane.

He radioed police twice to report that he was following a driver who might be impaired. Then the Mercedes narrowly missed a passing bus. Still, police had not arrived.

“I had to make a decision,” Shatley, 44, a 20-year veteran of the fire department, told the Road Worrier. “Do we just let her keep driving down the road the way she was going, and risk something happening?”

Shatley flipped on his fire-truck siren and flashing red lights. He testified later that the Mercedes lurched to a stop at the side of the street. Sparks flew as the wheel rim scraped the curb.

“The first thing I said to her was, ‘Ma’am, are you OK?’” Shatley said. “She was really confused.”

Verkerk stumbled from her car. Shatley offered to have someone drive her home. She agreed at first, but then she drove off and left him standing in the street.

Police officers arrived a few minutes later, and Shatley spoke with them. They caught up with Verkerk and arrested her.

Her blood-alcohol breath test registered .23 percent. That’s a lot of alcohol, nearly triple the .08 level that establishes, under state law, that a driver is illegally impaired. Verkerk had been convicted of DWI previously, after a 2010 arrest, and in the May 2011 case she initially was charged with driving while her license was revoked.

Her lawyer, Matt Suczynski of Chapel Hill, sought to suppress the evidence police got from Shatley, citing her Fourth Amendment protection from illegal search and seizure. The argument was that the fire department officer acted as a government agent but did not have authority to enforce traffic laws.

Review ordered

Superior Court Judge Elaine Bushfan denied the defense motion. She accepted Verkerk’s DWI guilty plea while reserving her right to appeal on the Fourth Amendment claim.

The 51-page Court of Appeals ruling, issued Sept. 3, said Bushfan should have considered the issues more fully. The appeals court ordered a new hearing to determine whether Shatley had acted as a private citizen or as a government officer when he stopped Verkerk, whether the stop was illegal, and whether there was enough evidence gathered legally by police to justify the DWI arrest.

The Court of Appeals order has sparked worry among some firefighters here and across the country.

“We have people asking, ‘Am I not allowed to intercede when I see something like that?’” said Dan Jones, Chapel Hill’s fire chief since 1990. “As his supervisor, I commend his action. I think he did the right thing.”

Curt Varone, a lawyer, blogger and former deputy assistant fire chief in Providence, R.I., said the case raises two questions – with two different answers – about the proper behavior of a firefighter.

“From the criminal defense perspective, about whether it was an illegal search and seizure, you come up with one answer,” Varone said. “But if you have a victim killed by a drunk driver, and a firefighter had an opportunity to pull the drunk driver over but chose not to do that, that leads you to a different way of looking at this problem.

“Could that firefighter be held guilty of negligence? Is there a duty to protect citizens in that way?”

Suczynski said Verkerk is “very grateful” to the Chapel Hill Fire Department.

“I’ve always felt, and Ms. Verkerk felt the same way, the firefighter’s actions were proper from an ethical and moral standpoint,” Suczynski said. “I think he did what’s right from a societal standard.”

But, Suczynski said, “to be held criminally liable from something a fire department should not be allowed to do is wrong. The fire department shouldn’t be allowed to execute a traffic stop. They aren’t trained law enforcement officers.”

Shatley said he would never try to do the job of a traffic cop.

“I think you look out for your neighbor and you look out for the innocent,” Shatley said. “That night I personally feel we did what any citizen would have done.”

Siceloff: 919-829-4527 or bruce.siceloff@newsobserver.com; blogs.newsobserver.com/crosstown On Twitter @Road_Worrier

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