A Chicago Cop Falsely Arrested Over 130 People for Drunk Driving. Anita Alvarez Didn’t Charge Him.
Alvarez’s office had to drop dozens of charges the officer brought. Why didn’t she prosecute him?
During the contest for Cook County state’s attorney, which has seen embattled incumbent Anita Alvarez’s record of fealty to the Chicago Police Department come under the microscope, one man’s name seems to have been all but forgotten amidst the list of cases where Alvarez has allegedly allowed dishonest police officers to escape charges: Richard Fiorito.
Alvarez has allowed officers accused of wrongdoing to wriggle free, while at the same time fervently prosecuting civilians accused of much lesser crimes.
But not everyone has forgotten. James Dean, Jr., still remembers his encounter with the corrupt officer that resulted in a years-long fight to clear his name over a trumped-up DUI charge.
It was in February 2007 that Dean had his run-in with Fiorito, a then-nine-year Chicago police veteran who wound up resigning in disgrace in 2011. Dean, who had been arrested earlier in the day for driving on a suspended license, had been released without charges and warned not to drive again. His car, however, was impounded and brought to the Town Hall police district in the Lakeview neighborhood. Dean says he was ready to return to home, but he then remembered that he had left his cell phone in his car. He got permission from the sergeant on duty to retrieve it.
As he was walking away from the car in the police station parking lot after getting his cell phone, Dean says he was accosted by an aggressive and belligerent Fiorito, who told him he couldn’t park where he was and demanded he move the car. Dean says he tried explaining to Fiorito that he hadn’t been responsible for the car’s location, but seeing there was no arguing with the police officer, who he says was “yelling and screaming,” he decided to comply. After moving the car to what he thought was a legal parking space, Dean says Fiorito came up behind him in his vehicle, switched on his police lights and continued to berate him.
“I just really thought at this point I was in the Twilight Zone,” says Dean. (Fiorito died in 2014.)
Not long after that, and only four minutes after leaving the police station, Dean says he was slapped with 17 tickets and a DUI charge by Fiorito — even though he had just been released by police and there had been no alcohol involved at any point.
“From there, my life changed irreparably,” says Dean.
What Dean didn’t know at the time was that his case wasn’t unique. In fact, his encounter was very similar to what Fiorito had done to many other Chicagoans. It soon came out that Fiorito had been arresting people on false DUI charges for six years as part of what critics believed was a scheme to gain overtime pay for court appearances.
It typically went like this: Fiorito would stop drivers, usually in the Lakeview area, on suspicion of driving drunk. He would then — though not always — conduct a sobriety test on the driver. Regardless of how they performed, Fiorito would record them as failing and charge them with a DUI, often making up details about their drunk driving. The accused, eager to avoid a DUI on their record, would enter a plea bargain and plead guilty to lesser charges.
Fiorito’s actions had the additional ignominy of being tinged with homophobia. Because he worked in Chicago’s “Boystown” neighborhood, a large share of Fiorito’s victims were in the LGBT community, and many accused him of using homophobic slurs while arresting them.
Between January 1, 2007 and June 6, 2008, Fiorito made a whopping 313 DUI arrests; in 2006, he made 230. Given that police officers typically work a 40-hour week, Fiorito was operating at a rate of nearly one DUI arrest per day. For this seemingly zealous devotion to keeping Chicago’s streets free of drunk drivers, Fiorito was honored by both Mothers Against Drunk Driving and the Alliance Against Intoxicated Motorists, which named him a “top cop.”
Fiorito was eventually taken off the streets and put on desk duty after dash cam footage emerged in 2009 contradicting Fiorito’s own police report about a different DUI charge. By the time he resigned, Fiorito stood accused of fabricating at least 40 DUI charges, and the Cook County state’s attorney’s office had to drop charges against more than 130 motorists arrested for drunk driving by Fiorito.
Dean was one of two drivers who refused to take the plea bargain and fought the DUI charge to the very end, maintaining he’d done nothing wrong. He eventually won $175,000 in damages from the city, as well as the cost of his legal fees. The other driver was Steve Lopez, a truck driver for whom a DUI could have been a career-killer.
“She’s not on the right side of the law”
The case is worth remembering now as Cook County state’s attorney Anita Alvarez fights for her political life. One of the chief criticisms lobbed at Alvarez by her opponents is her hesitancy to prosecute police officers who have violated the law. In case after case, Alvarez has allowed officers accused of wrongdoing to wriggle free, while at the same time fervently prosecuting civilians accused of much lesser crimes. The Robert Fiorito episode fits squarely in this pattern.
Despite the 40 witnesses accusing Fiorito of falsifying charges, and the video footage which showed Fiorito lying about one arrest, Alvarez refused to bring any charges against him. Her office claimed at the time to have been investigating the officer for a year, but one source told ChicagoPride.com it was really closer to one month. And in fact, Fiorito had been allowed to keep working as a police officer, making arrests and testifying under oath, even as civil rights lawsuits against him piled up.
Alvarez’s Chief of Staff Dan Kirk explained to reporters at the time that the state’s attorney’s office was declining to prosecute Fiorito because a number of witnesses had “severe credibility issues,” a statement Dean viewed as “a slap in my face.”
“Anita Alvarez, she’s part of the system,” says Dean. “She certainly proved to me that she’s not on the right side of the law.”
Though Dean no longer lives in Chicago, he’s been following the state’s attorney election, and is not enthusiastic about another Alvarez term.
“If she gets re-elected, then we’re just in for more of the same corruption,” he says.
Dean adds that he feels much more hopeful about Alvarez’s opponent, Kim Foxx, a former assistant state’s attorney who has advocated that cases involving police killings be handled by an independent prosecutor unaffiliated with the state’s attorney’s office.
“I’m hoping that Foxx gets elected, because she understands how the system has been used against particularly people of color,” he says. “Hopefully she can be a catalyst for change.”
Cook County voters will be casting their votes for state’s attorney on March 15. As they weigh up whether or not to give Anita Alvarez one more chance, perhaps they should mull over the various second chances she’s given to officers like Robert Fiorito.
6 Things DUI Cops Won’t Tell You
Photo By Charles Roberts from Plano, United States (Plano Police Motorcycle Officer) [CC BY 2.0]
This post used to say “5 Things DUI Cops Won’t Tell You”, however, new trends and created new issue in the field of DUI law. Despite law enforcement’s efforts to curb impaired driving, trends related to drug-influenced driving (“drugged driving”) have sprouted in the last four years. This has influenced the ways in which DUI officers have investigated their cases.
It’s sometimes hard to grasp how complex DUI (“Driving Under the Influence”) arrests can get. Most people don’t really know what it feels like to be at or above .08%. So it’s no wonder why most of my clients are mystified as to why they were pulled over, why the officer believed they were impaired, and how on earth they blew above .08% on the Breathalyzer.
Behind all the mysticism, however, there are some widely held beliefs about DUI investigations that simply catch everyone off-guard and dig themselves into deeper holes when dealing with DUI officers. Here are the top six things they won’t tell you:
1. “I only pulled you over for a traffic ticket…but now let’s see if you’ve been drinking.”
No matter what you believe, the police academy does not train officers to read your mind. So when they pull you over, it’s not because you did something that gave you away. They almost never do it because they have the legal right to investigate whether or not you’re impaired. Even though that may be what they believe (probably because it’s late and you’re driving out of a well-known commercial district known for dining and drinking), but frankly they just don’t know.
By far, almost every DUI police report references a normal traffic offense as the reason for pulling over the driver (i.e., weaving between lanes, failure to use a turn signal, speeding, failure to make a full and complete stop, expired registration tags, etc.). Notice none of those are for “suspicion of driving while impaired by alcohol or drugs”. They are free to suspect that’s the reason, but it’s more often the case that another violation is the doorway into their investigation.
There are a lot of reasons why that’s the case. If officers were to pull over more individuals because they suspected impaired driving, they would be torn apart in court by DUI lawyers who will question every objective observation the officer noted in pulling over the suspect. Not only that, there would be substantially more false-positives with DUI enforcement. Instead, it’s much easier to explain to the court or to the jury that the officer had no preconceived notions of the driver, only that they were driving too fast and it all started out as a simple traffic violation.
Therefore, their credibility is still intact. But follow someone for a long enough time and they are bound to commit a simple traffic offense. They won’t tell you that once they pull you over, they’re eager to find out of you’ve been drinking. Consider the time you are driving as being the biggest giveaway.
2. “I’m doing everything I can to smell your breath and look at your eyes.”
After you read over a thousand DUI police reports, it starts to look like the same report. The reason why? Because DUI patrol officers have done it over and over again—and they simply look for the stuff they’ve seen time and time again.
The moment the officer approaches the driver, it reads like a screenplay:
Officer: “License and registration, please.”
You: “Yes, officer. Give me just a second.”
Officer: “Just so you know, the reason I pulled you over is because you were driving 15 miles over the speed limit.”
You: “Oh, I see.”
Officer: *sniff*
Officer: “Sir, have you been drinking tonight?”
You: “Umm…”
That whole time the officer was going through the motions (presumably for a legitimate traffic violation), they were doing everything they could to see if your eyes were bloodshot or if they can get any hint of ethanol emitting from your breath. Once that’s done, the DUI game is on.
3. “You Will Fail the Field Sobriety Test”
Stand on one leg…hands stretched out to your sides…touch your nose…follow my finger…and so on. You’ve seen or heard of these tests in some way. One question: Do you know what you’re being tested on? It’s like taking a test in school and the teacher doesn’t tell you what it will take to get a good grade or a bad grade. It’s funny how many of us never think about that.
Well the sad truth is that many (if not all) DUI clients tell me that when it came time to do the field sobriety tests, they “passed” or they “did pretty good”. I always ask them, “How do you know?” The usual answer is that they remember the officer’s reaction to each test and simply internalized how they think they did.
By the time I get my hands on the police report, the officer marks them down for everything. You know what I’ve never seen in a report? “Mrs. Suspect performed pretty good on the field sobriety tests. After she was done, I decided not to give her a chemical test to determine her blood alcohol level.”
4. “I will not tell you that fear and nervousness will hurt your performance.”
It’s true. Here’s a quick example: Do you think you’re a good dancer? Good. I actually believe you. But what if everyone on the dance floor would suddenly stop dancing and surround you to watch you? Now it’s a different story. Some relish the attention and do even better. Many will stumble under the intimidating pressure.
Police know very well that their very presence makes you nervous. And the whole time you’re standing on one leg like a clown, over half of your attention is focused on what they’re thinking about you. This obviously would make you appear to be more impaired than you may actually be. If you’re only slightly impaired, you may now look very impaired. If you’re not impaired at all, you may have unknowingly passed the threshold of “exhibiting objective signs of motor impairment.” At that point, the officer is looking at their watch until they ask you those famous words…
5. “If you’re taking the wrong medicine, you could be toast.”
The question will appear very innocent: “Are you taking any medication?” Seems simple enough. The question is a valid one after all. If you take medication for seizures, the officer needs to know that because you will have to perform those field sobriety tests. Or maybe it’s pain medication for the leg pain you have–which of course will effect your performance since you have an injury. But what about those other medications? Surely that won’t be used against you after you are charged with DUI, will it?
Yes, it will. The combination of certain medications with alcohol could have magnifying effects on your ability to operate a motor vehicle. Sometimes the medication alone will be enough to impair someone if too much was taken or if there was a stronger-than-expected effect. Therefore, what you say will determine whether or not the officer believes you are DUI for alcohol, or DUI for alcohol and drugs!
6. “Blood test or Breath test… PS: I will NOT tell you which is better for you.”
Yes it’s true. After doing the math and looking at hundreds of cases, it’s sometimes better to do the breath test. Other times, it’s better to do the blood test. You can write a book on how and why one is “better” than the other depending on the circumstances. But based on those circumstances, the officer is under no obligation to tell you which of those tests would work out favorably for you at that particular moment.
The problem gets worse when clients ask the officer which of two tests they should take.
The most common DUI cop response is: “If you take the Breathalyzer, the results are what they are and that’s it. If you do the blood test, you can keep it as evidence and your lawyer can retest it after you go to court.” That information however, doesn’t really help you at all.
There have been countless instances where I wish the client did the breath test—and I can say the same exact thing for cases where the client should have taken the blood test. By the time they meet with me in my office, I will know whether they made the right choice. And even if they made the wrong choice, there are still several lawyer tools we will have at our disposal to make a difference.
Final Thoughts
Of all public service announcements that have caught people’s attention the last few years, DUI arrests and local enforcement is up there. Police agencies are stepping up their efforts and they have every incentive to do so. So it pays to know what kinds of pitfalls lay in wait for those of us who never would have expected to be on the side of the road trying to touch our noses.
One article may not provide you with all the answers. But you can at least be aware from now on that you could be making things worse if you don’t pay attention to some of the points mentioned above.
About the Author: Bart Kaspero is a criminal defense and civil rights attorney in Newport Beach, California. His practice caters to many professionals who face DUI’s, Drug charges, and other criminal investigations that require careful attention as well as litigation strategies to maneuver through the courtroom. He is a member of the National College of DUI Defense, Top 1% National Association of Distinguished Counsel, The National Trial Lawyers Top 100, and has earned the designation of “Rising Star” by Super Lawyers magazine from 2009 to 2016.
Disclaimer: this article and any other information provided through this website is for informational purposes only and shall not be construed as “legal advice”. Each case is individual in nature and a careful assessment of someone’s particular set of facts must be evaluated prior to acting on a sound legal strategy. For more information related to your own personal circumstances, you are encouraged to speak with a licensed attorney.
Aggressive Driving
Police officers, prosecutors and judges know that the vast majority of traffic accidents are caused by driving aggressively in some form, whether it results from excessive speed, erratic lane change, or simply cutting other drivers off. As a result, aggressive driving tickets tend to be fully prosecuted, and those convicted face stiff consequences.
Facing aggressive driving charges
The charge of “Aggressive Driving” (O.C.G.A. §40-6-397) in Atlanta serves as a catchall charge that can and will encompass any number of traffic violations. Ran a stoplight? That could be interpreted as driving aggressively. Tailgating is in there too. So is failing to yield or even passing a vehicle on the right side. Almost any time you find yourself violating any of the rules of the road, you could potentially be charged with this statute. The fact that it was designed to address many types of driving makes driving aggressively a difficult charge to defend.
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Criminal defense for aggressive driving charges
Almost all aggressive driving incidents start with another driver. Whether they cut you off or simply weren’t driving as they should, what begins as basic agitation can quickly escalate and have an impact on your driving. Before you ever get in the car, it’s best to remind yourself that you don’t have to get frustrated. Allow yourself plenty of time to move from place to place, and you’ll have a natural solution for this very common problem.
If you let frustrated driving get the best of you and are charged with aggressive driving, there are defenses available, however, it is critical that you are familiar with the court you are in and the possible options before going forward with your trial. Contact Attorney Erin Gerstenzang, an experienced aggressive driving lawyer, today to discuss.
