Officer charged in drunken driving case

INDIANAPOLIS (WISH) - Questions are being raised in another case of an IMPD officer alleged to have been driving drunk in his patrol car. A mistake required two breathalyzer tests to be administered to the officer, with results that could potentially jeopardize the case.

Morton Gallagher, a 21-year veteran of the Indianapolis Metropolitan Police Department, was arrested on April 13 near his home on the south side of Indianapolis. This came after BMV employees reported noticing the smell of alcohol on Gallagher’s breath, then watching him get into an IMPD patrol car, according to court documents.

After a period of time not locating Gallagher, court documents say, officers happened upon him near his home - in his IMPD vehicle, wearing his IMPD uniform, according to the police report – in the 600 block of Meadows Edge Lane.

Court document show officers noticed Gallagher smelled of alcohol and was unbalanced while trying to stand and walk. The IMPD case report says because Gallagher appeared drunk, the sergeant in charge of the IMPD DUI unit, Michael Duke, was called in. The police report says he too suspected Gallagher had been drinking.

According to the police report, Gallagher was then brought to the Southport Police Department. He was given a three-part field sobriety test, which according to the report, he failed. Then he was read his rights and he consented, the report says, to a breath analysis.

Police reports show the first breath test registered Gallagher with .11 blood-alchohol content, above the .08 legal limit for driving. So Duke headed with Gallagher from Southport PD to lockup.

But then Duke, according to the police report, realized he forgot to check officer Gallagher's mouth for foreign objects, as is required in Indiana before a breath test. So Duke took Gallagher back to Southport, to the same breath test unit, and gave him a second test. This time, Gallagher was .07, under the legal limit for driving.

But that doesn’t rule out charges, said Marion County Deputy Prosecutor Brad Banks.

"Just because you're at a .07, doesn't mean you weren't intoxicated,” he said. “So we file cases all the time where people are .06 or .07.”

He said a court will decide whether the first breath test is admissible, but his office is moving forward with the case. He also said he doesn't think Duke was trying to cover anything up.

"They're certainly human. He realized it was potentially a mistake quickly. He actually spoke to me the night of the arrest, very disappointed in himself," Banks said of Duke.

He said because sobriety testing is very technical, mistakes occur with "some regularity" and are usually challenged in court. He said sometimes prosecutors win, sometimes they don't. In this case, he said he believes the breath test problem is not "insurmountable."

Gallagher faces charges of operating a vehicle while intoxicated and operating a vehicle with a blood-alcohol concentration between .08 and .15. A pre-trial hearing is set for May 23.

IMPD'S new no tolerance alcohol policy means Gallagher will face discipline from the department no matter what happens in court. Gallagher is suspended from IMPD pending the outcome of the case.