ALJDEC decisions subject to certification as final

2024-117-POST · Peace Officers Standards and Training · 2025-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding the Denial of Peace Officer Certification to:

Edward Carnes,

Respondent.

No. 2024-117-POST

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: March 4, 2025.

APPEARANCES: The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Joseph E. Dylo. Respondent Edward Carnes was represented by Steven Serbalik.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Peace Officer Standards and Training Board Exhibits 1 through 7 and Respondent’s Exhibit A through C.

_____________________________________________________________________

FINDINGS OF FACT

On March 18, 2023, at approximately 1:13 AM, off-duty Chandler Police Department (CPD) Officer Adam Farrow observed the driver of a grey Toyota Camry, Sergeant Edward Carnes #8714 (Respondent), who was off duty at the time, asleep at the wheel in a lane of traffic.

Officer Farrow reported Respondent to the Queen Creek Police Department (QCPD) at approximately 1:16 AM, and while Officer Farrow was on the phone with 911, the Respondent drove away. Officer Farrow followed the vehicle; he observed and reported that the vehicle was drifting in the traffic lane, crossing the lane lines, and nearly hitting curbs.

QCPD stopped Respondent, who parked his vehicle with one wheel on the curb. Respondent displayed further signs of impairment, so QCPD conducted a driving under the influence (DUI) investigation, performing a Standardized Field Sobriety Test (SFST) with Respondent’s consent.

Respondent’s performance in the SFST indicated that he was intoxicated: the officer observed six clues of impairment and vertical gaze nystagmus Respondent declined to take a preliminary breath test.

QCPD arrested Respondent for DUI at approximately 1:57 AM.

At approximately 3:26 AM, QCPD served Respondent with a search warrant, and a phlebotomist took blood from Respondent at approximately 3:26 AM.

Respondent’s blood specimen showed it to contain 0.157 +/- 0.008 grams of ethyl alcohol per 100 milliliters of blood (g/100 mL) at a level of confidence greater than 99.73%.

On November 8, 2023, Respondent plead guilty to a violation of Arizona Revised Statutes (A.R.S.) § 28-1381(A)(1), driving while impaired to the slightest degree.

Respondent’s actions were heard by the Phoenix Police Disciplinary Review Board, which recommended to the Chief of Police that Respondent be suspended for 80 hours. The Chief ultimately suspended Respondent for 120 hours.

Mike Deltenre, Compliance Specialist for the Arizona Peace Officer Standards and Training Board (Board), investigated the incident described above, and at the June 19, 2024, Board meeting, he recommended initiating proceedings.

The Board voted to initiate proceedings.

On January 13, 2025, the Board issued a Notice of Hearing, setting this matter for hearing on March 4 and 5, 2025, at the Arizona Office of Administrative Hearings.

At the hearing Mike Deltenre testified for the Board. Phoenix Police Commander David Christopher Cedar II, Cottonwood Chief of Police Brian Freudenthal, and Respondent testified for Respondent.

Mr. Deltenre testified in support of his investigation and Respondent’s eligibility for certification discipline before the Board. Mr. Deltenre testified that police officers are held to a higher minimum standard when it comes to obeying laws, such as criminal traffic laws, and when officers violate those laws, they jeopardize the public trust in that officer, the agency that the officer represents, and law enforcement overall. He testified that a single incident by an officer is enough to warrant discipline for creating that jeopardy.

Respondent did not contest the facts of the incident. He testified that the week leading to the incent he did not get much sleep because of the World Baseball Classic, which required him to work double shifts. On March 17, 2023, he woke up at 4:00 AM to attend his quarterly rifle qualification; that evening he drove to a Buffalo Wild Wings, where he intended to leave his vehicle until the following day. From there, he took an Uber to a party. Respondent had a few plans for getting home, but he planned on taking an Uber home. He did not remember why he returned for his vehicle that night. After the incident, Respondent realized he may have had an issue with alcohol, and he took immediate steps to get better. He got counseling, stopped drinking, started going to AA meetings, did random urine analysis, and took full accountability for what happened. He testified that he plead guilty to a lesser charge and did not think that the Board would take action on his certification. Respondent credibly expressed remorse for his actions.

Cmdr. Cedar testified that he and Respondent were not friends outside of work; however, he had known Respondent for approximately 17 years, since Cmdr. Cedar began his career at the South Mountain precinct in Phoenix. In recent years, Cmdr. Cedar had Respondent in his chain of command, including as Respondent’s direct supervisor when Cmdr. Cedar was a lieutenant. Cmdr. Cedar testified that Respondent was a good colleague, a hard worker, and a reliable officer. He testified that Respondent had always been empathetic and compassionate in his work, which impressed Cmdr. Cedar. After the incident, Respondent properly reported what occurred, and he demonstrated remorse and took full responsibility. Respondent took the incident in stride and tried to use it as an opportunity to help his peers and subordinates learn from his mistake. Cmdr. Cedar supported not removing Respondent from his detail. Cmdr. Cedar agreed that a DUI is a significant infraction, but overall, he did not believe that Respondent should be further disciplined.

Prior to taking his current role Chief Freudenthal was a commander for the Phoenix Police Department. Chief Freudenthal testified that Respondent was an excellent sergeant, and after the incident Respondent immediately took full responsibility and was remorseful for what occurred. Respondent was placed on leave, and Chief Freudenthal would regularly check in on Respondent, who consistently demonstrated behavior of someone who wanted to move past his mistake in a positive way. Respondent changed his off-duty lifestyle beyond what was expected of him. Because of Respondent’s performance and behavior in response to the incident, Chief Freudenthal not only decided to not remove Respondent from his unit, even though he had done so in other instances, he worked to keep Respondent. Chief Freudenthal testified that the disciplinary review board recommended an 80 hour suspension, which the Phoenix Chief of Police increased to 120 hours, but 240 hours is the normal suspension for a DUI. Chief Freudenthal testified that although incidents like Respondent’s may diminish public trust in law enforcement, he did not believe Respondent should be further disciplined.

Respondent also submitted eleven letters of recommendation, which supported his quality and character as an individual and officer and which supported not further disciplining Respondent.

CONCLUSIONS OF LAW

This matter lies within the Board’s jurisdiction.

The Board bears the burden of proof to establish cause to discipline Respondent’s peace officer certification by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Under A.A.C. R13-4-109(A)(12), the Board may “[d]eny certified status or suspend or revoke the certified status of a peace officer for . . . [e]ngaging in any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.”

On September 15, 2021, the Board’s DUI Subcommittee (Subcommittee) met and established a standard for cases to be heard by the Board for discipline. The Subcommittee determined that a BAC of 0.15 g/100 mL, an extreme DUI, was an appropriate threshold absent other aggravating factors. The Committee also discussed that the criminal outcome should not be determinative when a BAC of 0.15 g/100 mL or above is scientifically proven.

Respondent argued that 0.157 +/- 0.008 g/100 mL means his blood alcohol level (BAC) could have been as low as .149 g/100 mL, which is below the threshold set by the Board. However, Respondent’s BAC could also have been as high as 0.165 g/100 mL. Neither party provided statistical analysis or expert testimony regarding the results.

Here, the burden of proof is a preponderance of evidence, and while it is possible that Respondent’s BAC was below 0.15 g/100 mL, it is far more likely than not that Respondent’s BAC was 0.15 g/100 mL or above.

Respondent argued that his BAC may have been increasing between the time he was driving and when his blood was drawn, which would have resulted in a higher BAC compared to when he was driving. However, Respondent’s BAC could also have been decreasing between the time he was driving and when his blood was drawn, leading to a lower BAC compared to when he was driving.

Respondent did not provide judicially noticeable resources or expert testimony regarding how a body processes alcohol and how BAC changes over time to support his argument. Additionally, Respondent had the opportunity to take a preliminary breath test prior to his arrest, and he could have consented to a blood draw earlier. Fundamentally, the record is devoid of evidence to support which direction Respondent’s BAC was moving at the time of the test. Therefore, the preponderance of the evidence supports that Respondent’s BAC was 0.15 g/100 mL or above.

Respondent argued that he plead guilty to a violation of Arizona Revised Statutes (A.R.S.) § 28-1381(A)(1), driving while impaired to the slightest degree, and was not convicted of an extreme DUI. Accordingly, he believed that his certification would not be disciplined.

As stated by the Board at its September 15, 2021, meeting, criminal prosecution is not the benchmark for discipline: the BAC is the benchmark for discipline. Criminal prosecutions, and guilty pleas in particular, have a multitude of material factors that are irrelevant for the purposes of certification discipline. An argument that a guilty plea to a lesser offense should impact certification discipline is not compelling.

In this case, the Board demonstrated by a preponderance of the evidence that Respondent engaged in conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession. Specifically, on March 18, 2023, Respondent drove dangerously, fell asleep behind the wheel of his vehicle in traffic, and drove under the influence of alcohol with a BAC at or above 0.15 g/100 mL.

The Board did not argue that there were any aggravating factors.

Respondent and his witnesses credibly testified to multiple mitigating factors which deserve consideration. Respondent credibly testified that he did not intend to drive on the night of the incident. Respondent recognized and took responsibility for his mistake. He did not attempt to shift blame at any point following the incident. He consistently demonstrated remorse and shame. He voluntarily stopped drinking, started to attend meetings, and provided voluntary drug and alcohol testing. Respondent made the most of the incident, encouraging other officers to learn from his mistake.

Respondent’s witnesses, the outcome of his disciplinary proceeding, and his letters of recommendation, speak highly to his character and behavior before and after the incident.

Based on the foregoing, the Board established cause to discipline Respondent’s peace officer certification pursuant to A.A.C. R13-4-109(A)(12).

Done this day, March 24, 2025.

/s/ Samuel Fox

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Matt Giordano, Director

Peace Officers Standards and Training

Joseph E. Dylo

Arizona Attorney General’s Office

[email redacted]

Jack G. Lane

Peace Officers Standards and Training Board

2643 East University Drive

Phoenix, AZ 85034

Steven J. Serbalik PLC

[email redacted]

By: OAH Staff