N.J. township officer didn’t know driver was drunk when gave her keys

Police officers are trained to detect the smell of alcohol on a driver's breath, and to observe a person's conduct, as well as surrounding circumstances in determining intoxication. But in the recent New Jersey Superior Court case of Luna v. Estate of Gonzalez, a Lakewood Township officer let a drunken woman take the keys of a car after he arrested the driver, resulting in a crash that killed her and injured the passengers.

Group taking bathroom break spotted by policeman

After a late night of socializing and drinking, five friends stopped at a stadium parking lot at 6:30 in the morning in order to relieve themselves. The officer noticed the car in the parking lot with the occupants outside the car, some of them drinking beer, and called to report the public drinking. The officer never activated his mobile video recorder.

Language barrier at time of arrest

The men driving the car were Spanish-speaking and did not understand English very well, but several of the female passengers were able to translate. The officer learned that neither man had a valid driver's license, and that one had an active warrant for his arrest. He was also told that none of the women had driver's licenses.

The officer in his notes said that the women did not appear intoxicated, but that he had not "reached any conclusions about their sobriety." The English-speaking translator said she would call to get another person to come and get the car. The officer then gave the woman the keys to the car, and told her not to drive. He did not administer any field sobriety tests, nor did he get any identification.

Car driven off at high speed and crashes

After the police officer left, the woman to whom he entrusted the car keys drove off with the passengers, reached 66 m.p.h in a 33 m.p.h zone, lost control of the vehicle and hit a light pole, killing herself and severely injuring the passengers. She was found with an open bottle of beer between her legs.

A postmortem toxicology exam showed her blood alcohol level to be .092, and the passengers testified that the driver was visibly intoxicated when the officer gave her the keys. The others involved testified that she was "walking and talking as usual," and that her behavior toward the officer in the parking lot was good and not indicative of her drunkenness. However, none of the parties could say that she was sober.

Officer's conduct did not "shock the conscience"

The passengers also claimed that the officer was grossly negligent and reckless in allowing the woman to drive the vehicle, possibly in violation of the passengers' civil rights. The appeals court cited several cases where police had impounded cars and arrested intoxicated drivers, then let intoxicated passengers walk home, resulting in injuries and, in one case, rape. These cases were distinguishable from this one, and the court found that the officer's conduct was not so egregious or shocking that it deprived the passengers of their due process rights.

The police officer was at least negligent in entrusting the keys to the woman with no driver's license whose identity he had not verified. Police are immune from liability if they enforce the laws in good faith, but that can be a close question, as it was in this case. An experienced attorney can identify potentially responsible parties in an injury case so they are not let off the hook.