SEP 30 1994 XX XX XX RE: Complaint Number Dear Mr.

XX This letter constitutes the Department of Justice's Letter of Findings with respect to the complaint you filed with our office against the Atascadero Police Department of Atascadero, California, under Title II of the Americans with Disabilities Act (ADA) of 1990. Title II, which became effective on January 26, 1992, prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governmental entities, such as the Atascadero Police Department. You allege that on XX , you were "pulled over" by a police officer for allegedly driving while intoxicated. You were arrested and "booked" for driving under the influence. You allege that, because of your disabilities, which include nerve damage to your lower body and a speech impairment, and the fact that you were denied a proper sobriety test, the police officer thought you were driving under the influence. You also assert that the police officer, XX , who had pulled you over and arrested you on XXX , filed a multi-million dollar civil suit against you after you filed your complaint with our office in an effort to intimidate and harass you. We are required to investigate complaints, make findings of fact and conclusions of law, and attempt to negotiate voluntary compliance if a violation is found. Where voluntary compliance cannot be achieved, formal enforcement action may be initiated. The Title II regulation also provides for the use of alternative means of dispute resolution, where appropriate, including settlement negotiations and conciliation.

cc: Records, CRS, chrono, Wolfson, Kaltenborn, Payne, Keenan:dhj T. 9/30/94 udd\wolfson\XXX2.LOF

01-00205 -2Legal Standards Under the Department of Justice's Title II regulation, no qualified individual with a disability shall be subjected to discrimination by any public entity (28 C.F.R. 35.130(a)). Section 35.130(b)(7) also states that a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. Section 35.134 of the regulation states that no private or public entity shall coerce, intimidate, threaten, or interfere With any individual in the exercise or enjoyment of any right granted or protected by the ADA. Facts and Analysis The evidence that we reviewed shows that on the evening of XX XX pulled you over because he observed that you were driving your automobile in a reckless manner. The officer, noting that your breath smelled of alcohol, that you were slurring your words, that your eyes were bloodshot, and that you staggered when you walked, in addition to noting the way you had been driving, had probable cause to suspect that you were driving while intoxicated. The records reflect that he proceeded to ask you a series of questions, including whether you had been drinking, how much alcohol you had, and what you had eaten. You told him that you had consumed four beers. The officer then proceeded to conduct two sobriety tests to evaluate whether you were indeed intoxicated. By your own admission, you failed both tests and XX consequently arrested you. You allege that these tests discriminated against you because

your disabilities predisposed you to fail them. However, at this point the officer had cause to arrest you for driving under the influence. The documents submitted to us by the Atascadero Police Department further show that you were taken to the Atascadero Police Station where you were offered a chemical test to test your blood-alcohol count (bac). If you felt that you had been mistakenly arrested on the basis that your disabilities caused you to appear drunk, then this became a crucial test for you to take because it could definitively prove that your bac was below the .08 legal intoxication level. However, after initially agreeing to a breathalyzer test, the records reflect that you twice refused to take this test. You allege that you wanted to take a blood test, instead of the breathalyzer, but that you were only offered the breathalyzer. You assert that it was for this reason that you refused to take this test. The police maintain that you were offered the alternative tests. Your allegation 01-00206 -3that the police did not offer you a choice of chemical tests, if proven, might raise a question as to whether State law was violated, but it does not amount to a violation of Title II. Moreover, you did not raise the allegation that the police failed to offer you a choice of chemical tests in the San Luis Obispo Municipal Court, where your attorney appeared on XX , and which would have been the proper place to challenge the procedure of your arrest. Your behavior at the time you were stopped gave the officer reasonable cause for arresting you for driving under the influence and, without any test results to refute that you were drunk, there is no way to substantiate that you were discriminated against on the basis of your disability. With respect to your allegation that Officer XX filed his civil lawsuit against you in order to intimidate and harass you for filing your complaint with our office, we do not find this to be the case after reviewing the lawsuit. The lawsuit focuses on allegations that you invaded Officer XX privacy, by illegally obtaining credit reports on him, that you had hired a private investigator to conduct surveillance on him, and that you took actions such as finding out about his own record of traffic violations and publicizing what you uncovered. Furthermore, the suit was filed on XX , which is before

the time that we informed the Atascadero Police Department that we had received a complaint from you. You have subsequently informed us that Officer XX suit against you was dismissed by the Federal District Court. Conclusion Without reaching the issue of whether you are an individual with a disability as that term is used in the ADA, we have determined that the Atascadero Police Department acted in a nondiscriminatory manner with respect to your allegations. The preponderance of the evidence shows that the Atascadero Police Department legitimately had reason to arrest you for driving under the influence and that Officer XX did not file his civil suit to retaliate against you for filing a complaint with our office. Thus, the Atascadero Police Department is not in violation of Title II of the ADA. This conclusion is based on a review of the Police Department's policies, procedures, records and documents. Based on our findings that the Atascadero Police Department did not violate Title II of the ADA with regard to the allegations raised in your complaint, we are closing our file in this matter as of the date of this letter. If you are dissatisfied with our determination, you may file a private complaint in the appropriate United States District Court under Title II of the ADA. 01-00207 -4You should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy.

Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division cc: Mary Redus Gayle Atascadero City Attorney

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