Prosecutor mum on charging Ahlers; defense attorney questions decisions by 'young, eager' cop

·9 min read

EVANSVILLE, Ind. — As of Thursday, charges have not been filed against the Vanderburgh County Council's attorney, who was arrested June 26 on suspicion of drunken driving.

Evansville police arrested Jeffrey W. Ahlers, 60, following a traffic stop. And Vanderburgh County Sheriff Dave Wedding said he removed Ahlers' mugshot and arrest information from the sheriff's office website soon afterward.

The Courier & Press has sent several questions and requests for comment to the Vanderburgh County Prosecutor's office in the 11 days since the arrest. A spokeswoman for the office forwarded those to Prosecutor Nick Hermann, but he didn't respond.

The office had previously said it couldn't comment on Ahlers' stop without talking to Hermann, who was then vacationing in Europe.

Jeffrey Ahlers arrest: A Southern Indiana sheriff says he removed attorney's mugshot, arrest info from website

No one in the prosecutor's office has explained why charges haven't been filed. Attorney Scott Danks, who represents Ahlers, said the reason is because his client is innocent.

Even though Ahlers reportedly failed multiple field sobriety tests, his blood alcohol level was later found to be 0.077, just under Indiana's legal limit of 0.08.

"I've heard nothing from (the prosecutor's office) whatsoever, which would be an indication to me they're not going to do anything," said. "Nor should they."

What happened?

According to an affidavit filed in the case, Ahlers was pulled over just after midnight June 26 on Evansville's Southeast Side. The arresting officer said he initiated the traffic stop when Ahlers took a wide turn and ran a red light.

The officer smelled alcohol as he approached Ahlers' vehicle, the affidavit states. The attorney voluntarily consented to perform the field sobriety tests, both of which he failed.

He also consented to a chemical breath test. But it would be more than 80 minutes before he received one.

Under Indiana law, police breathalyzer tests can only be administered by a certified officer. So Ahlers was taken to the Vanderburgh County jail to meet with a "certified breath test operator."

But he didn't go there right away.

EPD requested a jail transport van at 12:40 a.m., 23 minutes after the initial stop, police reports state. That van arrived eight minutes after that, but it soon got a call to pick up two more arrestees on Evansville's West Side off North Wabash Avenue — a several-minute drive away.

By the time Ahlers arrived at the jail, one hour and 14 minutes had elapsed since the initial stop.

When Ahlers' took the breath test between 1:45 and 1:50 a.m., the police report listed his blood-alcohol content as 0.077 percent.

Previously: Vanderburgh County leaders largely mum on sheriff scrubbing attorney's arrest info

According to police and studies, blood alcohol content typically decreases by 0.015 percent per hour.

The EPD did not respond to questions about why Ahlers spent nearly 50 minutes in a van before being tested. But EPD spokeswoman Officer Taylor Merriss previously told the Courier & Press that it's not out of the norm for similar periods of time to elapse between a traffic stop and a chemical breath test.

"Between conducting a traffic stop, performing field sobriety tests, requesting and waiting for the wagon to arrive for transport ... it could very well be 90 minutes," she said.

3-4 beers, a mixed drink: Ahlers' story

Representing Ahlers, Danks gave the first public airing of Ahlers' version of events the night he was stopped.

Ahlers says he did not run a red light — and he said so to the officer who stopped him, Danks said. When the officer said he smelled alcohol, Danks said, Ahlers asked to be tested on the scene.

"He said, 'I'm a lawyer, but I'm not a criminal defense lawyer — but don't you have one of those portable alcohol-test things that you can give me?'" Danks said. "He asked for it."

The officer allegedly told Ahlers he did have the equipment to test him on the spot. But he wouldn't do it.

"(The officer) said, 'I don't care what (the portable breathalyzer) says because they're not admissible in court because they're not accurate,'" Danks said. "Well, they are pretty accurate, but because they're not calibrated regularly, it's true they're not admissible in court. But they always give that as a screening tool."

The officer told Ahlers he was taking him to jail "anyway," Danks said, where he could take an intoxilyzer test.

"We believe (Ahlers') alcohol content would have been lower at (the scene of the stop)," Danks said. "This is bull**** about this wait. An hour-and-a-half wait and the cop says, 'Yeah, it goes down 0.015 percent per hour.'

"That's true — if it's going down. But under (Ahlers') scenario, and what he had told the police officer, is that he had had like three or four beers over an extended period of time. And within about 15 minutes of him getting pulled over, he had had a mixed drink."

Ahlers' blood-alcohol content was on its way up, not down, when he was stopped, Danks claimed. This is known as the "rising blood alcohol content defense," a tactic employed by criminal defense attorneys, according to the American Prosecutors Research Institute.

The absorption rate of alcohol has been extensively studied over decades.

Results published in the journal of Clinical and Experimental Research found that alcohol concentrations in men who consumed beer peaked within about 60 minutes. Mixed drinks yielded a peak blood-alcohol content within about 36 minutes, with a margin of error of about 10 minutes.

Danks claims that testing Ahlers 90 minutes after he was stopped had the effect of catching Ahlers at his "absolute maximum" level of intoxication.

"And he was still under the (legal) limit," Danks said.

Most studies say the effects of alcohol peak within 30 minutes to a maximum of 90 minutes. A study published by the Journal of Forensic Science found that blood-alcohol concentrations peaked about 40 minutes after test subjects consumed mixed drinks and a meal.

What does Indiana law say?

Wedding, who scrubbed Ahlers' arrest info from the jail website, said it is the right of the sheriff's office to control what content is posted.

And the sheriff sees the timing issue differently than Ahlers' lawyer. If Ahlers had been taken straight to the Vanderburgh County jail by the EPD, Wedding declared, he likely would have tested above 0.08 percent.

Either way, Indiana law specifies that any driver who fails field sobriety tests can be charged with driving while intoxicated, even if they pass a chemical test administered after the fact.

Avoiding DUI: How long does alcohol stay in your system? That depends on several factors.

Prosecutors can rely on testimony from the arresting officer and his or her observations of slurred speech, confusion and failed field sobriety tests to convict a driver on a charge of operating while intoxicated.

Vanderburgh County elected officials have had little to say about the news that Wedding removed Ahlers' mugshot and charge information from his jail's website following the man's arrest on suspicion of drunken driving.

But Danks think it was poetic justice.

"I can't tell you why (Ahlers') mugshot was taken down," the defense attorney said. "I didn't talk to anybody about having that done. I don't think that (Ahlers) talked to anybody about having that done.

"But it was done, and I'd like to think that somebody thought, 'This is total BS, and this guy's mugshot should have never been taken, should have never been posted, and I want to try to fix a wrong.'"

Some may call it favoritism, Danks said, "but hopefully they would do that with anybody."

About those field sobriety tests

It's no wonder Ahlers didn't pass the field sobriety tests he was given at the scene, Danks said. "Nobody on the planet can pass" them, he insisted.

"I do six triathalons a year. I do not drink alcohol or use substances. I cannot pass a field sobriety test. I sure as hell can't pass it at midnight, after I've been going all day long."

Danks challenged anyone to pass "the easy" field sobriety test.

"Try to stand on one leg and count 1,000-one, 1,000-two, 1,000-three and go to 30 without raising your arms," he said. "Just lift up one leg so your toe's about four inches off the ground — doesn't have to be high — and stand on your one leg and count to 30 without raising your arms.

"I made it to nine. And that was 11 o'clock in the morning. And I'm cold sober."

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Ahlers "thought he did pretty well" on the field sobriety tests, Danks said. But the probable cause affidavit stated that the County Council attorney had problems with the "one leg stand test."

"Ahlers swayed during the test, used his arms to balance, and put his foot down three times," the affidavit stated.

Ahlers reportedly didn't do well in the "walk and turn test," either. And, the arresting officer said Ahlers' eye movements indicated intoxication.

"During the instructions phase, Ahlers was unable to balance in the starting position," the affidavit stated. "Ahlers also began the test before being told to begin. Ahlers stepped off line on the fifth, sixth, seventh, eighth, and ninth steps on the second pass, missed heel-to-toe on the fifth, sixth, seventh, eighth, and ninth steps on the second pass, and turned improperly by failing to pivot on his front foot."

Danks doesn't see evidence of impairment.

"The cop says, 'Well, we've got these different points, so technically he flunked it,'" he said. "And he says (Ahlers') eyes were glassy and bloodshot. I had to look at that mugshot. His eyes are as clear as my eyes are right now."

So why, then, did Ahlers get pulled over? Danks cited third-shift police officers who are likely low on the seniority totem pole.

"These are young guys and they're eager to do their jobs and make arrests, and they're more aggressive," he said.

EPD stands by its arrest of Ahlers and the officer's contention that Ahlers was illegally intoxicated behind the wheel.

"At the time of the stop and after he completed field sobriety tests, he exhibited signs of impairment resulting in his arrest," Merriss said. "Regardless of toxicity, you can still be impaired and arrested even if the result is below 0.08 percent."

Danks doesn't buy it.

"(Ahlers) is the only person I've ever known that's been arrested for being responsible and driving legally."

Houston Harwood can be contacted at walter.harwood@courierpress.com with story ideas and questions.

This article originally appeared on Evansville Courier & Press: Have charges been filed in the Jeffrey Ahlers case?