Wednesday, February 5, 2003

Locals sue Portland chief over accident

Published in the Current and the American Journal

Kimberly McLellan of Gorham and Kevin Hardy of Scarborough are planning to sue Portland Police Chief Michael Chitwood under the state’s Liquor Liability Act after the vehicles they were in were involved in an accident caused by an allegedly drunk police officer.

They will also sue the City of Portland and the Portland Police Department.

Lawyers for the two will file notices of claim this week. Hardy and McLellan were the drivers and only occupants of the other two vehicles involved in a three-car crash at about 10 p.m. Dec. 17. Lt. Ted Ross, a Portland officer who lives in Cape Elizabeth, was driving home from an open-bar holiday party hosted by Chitwood, and a subsequent stop at a Portland bar with two other senior police officers, when he hit a truck
driven by Hardy, pushing Hardy’s truck into McLellan’s Land Rover.

Ross was not arrested for driving under the influence at the time, but rather was transported to the hospital for treatment of a head injury received in the crash.

A search warrant served on Maine Medical Center Jan. 27 indicated that Ross’ blood alcohol level at the time of his admission to the hospital was 0.253 percent, more than three times the legal limit. The district attorney’s office announced last week it was seeking charges against Ross, but none had been filed as of Tuesday, when it transferred the case to the state attorney general’s office for further action.

Ross’ attorney, Michael Cunniff, said Ross had not yet been charged, and he will ask the attorney general “to make a decision as quickly as possible.”

Assistant Attorney General William Stokes said he had received and accepted the case, and would review it to determine “what charges if any may be filed.”

Cunniff questioned the usefulness and validity of the hospital’s diagnostic blood test for law enforcement purposes and said officers did not have reason to suspect Ross was drunk following the accident.

“Because there was no evidence of alcohol impairment, the officers would have released anyone” who was in the position Ross found himself in Dec. 17, Cunniff said.

Mark Randall, an attorney with the Daniel G. Lilley Law Offices in Portland, the firm handling the case against the police department, said filing a notice of claim gives McLellan and Hardy two years from the date of the accident to file a lawsuit.

The specifics of the lawsuit are not yet determined, Randall said. An investigation is ongoing, which includes looking into whether Ross has any past history of incidents like this one, and how police handled those, Randall said.

He said he expects the city and police department parts of the suit to relate to Ross’s conduct while operating a city-owned vehicle, the unmarked police cruiser assigned to him at the time of the incident.

According to court documents, Ross initially told police and rescue workers that he was reaching for a cell phone. Use of cell phones while driving city vehicles is prohibited by city policy. Ross also told emergency workers he was not wearing a seat belt at the time of the accident.

Cunniff said Ross admitted to wearing a seat belt and attempting to use his cellphone, and said Ross may have violated city policies.

Randall expects the liquor liability portion of the suit to name people who served alcohol to Ross, “including Michael Chitwood.”

Randall said Hardy and McLellan are not speaking to the media now, but Randall did remark upon their “amazement” that police officers and rescue workers at the scene “did not even talk to them prior to Ross being placed in an ambulance and being removed.”

Hardy and McLellan refused ambulance transport to a hospital, but both were taken by friends to Portland emergency rooms that evening and were treated and released, according to Randall.

Both are “undergoing medical treatment” to determine the extent of their injuries. Neither has been hospitalized.

Randall dismissed public claims by, among others, District Attorney Stephanie Anderson, that blood could mask the smell of alcohol.

Court documents indicate that Ross was “bleeding profusely” from a forehead wound caused when he hit his head on the rear-view mirror.

The idea that blood could have covered up the smell of alcohol is “fanciful,” Randall said. Officers often tell investigators that they can smell alcohol at some distance from a car. “They can smell alcohol in the most unusual circumstances,” Randall said.

Randall said the officers should not have ignored the smell of alcohol he is sure was present at the accident scene. “I’ve heard of selective hearing. This is the first time I’ve ever heard of selective smelling,” he said.

Cunniff said the evidence from the Portland police investigation, including more than 20 interviews, some of which were cited in court documents, indicates “the people who were on the scene did not detect any evidence of alcohol.” Further, “he wasn’t impaired.”

Ross is on paid administrative leave, the usual status assigned to officers who are under investigation, Cunniff said. Chitwood and Portland City Attorney Gary Wood did not return phone calls by press time.