SPD sergeant made ‘poor choices,’ but were they criminal?

A Seattle police sergeant who was arrested for driving under the influence and hit and run earlier this year was not charged by King County prosecutors, who say a blood sample showed no evidence of impairment.

City prosecutors disagree with the county’s decision and have decided to move forward with a case of their own.

Timothy J. Fountain, 43, was pulled over near the intersection of Western Avenue and Spring Street in February 2012 after a fellow officer with the Seattle Police Department witnessed him “commit a series of traffic violations.” According to court documents, the off-duty sergeant backed his unmarked patrol car into a metal street sign downtown and began to drive away.

Washington State Patrol troopers were summoned to assist in the investigation to avoid a conflict of interest.

The SPD officer who stopped Fountain reported that the sergeant had slurred speech, but the county prosecutor who reviewed video evidence in the case said the suspect spoke “clearly, coherently and without any noticeable slur.”

Fountain, who was reportedly out to dinner on the night of his arrest, denied drinking alcohol. He refused field sobriety tests, but blew .00 on a breathalyzer.

“We suspect drug impairment,” a trooper told dispatchers, who sent a drug recognition expert to the scene.

Fountain told troopers he took an appropriate amount of a prescribed medication for depression several hours earlier.

A blood sample subsequently taken at Harborview Medical Center supported his claim. An anti-depressant called Duloxetine was the only substance detected in his blood.

“The toxicologist will testify that the amount of Duloxetine in the defendant’s blood (0.0091 mg/L) is consistent with (and even slightly below) normal therapeutic levels and is consistent with the defendant’s claim to have taken it several hours earlier,” the county prosecutor wrote in a document that detailed the decision not to file charges.

“Although the defendant appeared a bit disheveled when he was stopped, the video does not show any obvious impairment,” the prosecutor wrote. “Here, despite the defendant’s seemingly odd behavior at the time of initial contact, we have no evidence to prove that he was under the influence of drugs or alcohol at the time of the collision.”

The prosecutor also declined to file hit and run charges against the defendant, saying he was stopped by police before he was able to report damage to the sign.

“The defendant was in an SPD vehicle and it seems unlikely that he would be able to hide the damage,” the prosecutor wrote. “This fact corroborates the defendant’s claim that he did intend to report as required by the statute.”

While state law requires a driver to stop immediately after hitting an occupied vehicle, the same is not true for accidents involving property only. The driver is allowed to leave the scene if they make “reasonable steps to identity the owner of the damaged property.”

The defense could have argued at trial that the officer knew the property belonged to the city and planned to notify his superiors.

Although the county prosecutor said the sergeant made “a series of poor choices,” they declined to file charges on June 11.

“From time to time, people in their cars strike other cars, strike streets signs, strike objects along the roadway,” said Ian Goodhew, a spokesperson with the King County Prosecutor’s Office. “What should his reaction have been at the time? Should it have been to turn the wrong way down the street? The answer is no. But does that make it criminal? No.”

The City Attorney’s Office disagrees.

After the Seattle Police Department asked them to examine the case again, the city charged Fountain with misdemeanor reckless driving and hit and run/property damage on Sept. 26. An SPD spokesperson could not comment on why the department asked city prosecutors to reexamine the case.

A spokesperson for the office said they disagree with the county’s analysis that there was insufficient evidence to support a hit and run conviction.

Citing the Seattle Municipal Code, which differs slightly from state law, the city alleges that Fountain failed to stop at the scene of the collision, or “as close thereto as possible,” and failed to leave a note on the property with his name and address.

City prosecutors levied the reckless driving charge because they believe Fountain acted with a “willful or wanton disregard for the safety of persons and/or property.”

Goodhew said the county would not have filed the reckless driving charge based on the facts of the case.

Fountain has waived arraignment on the city charges. A pretrial hearing is schedule for Nov. 11.

The Seattle Police Department transferred the 22-year veteran from his duties pending an investigation into his conduct, but he has since been sent back to his regular post with the Special Operations Bureau.

The incident happened just a year after he was commended for “distinguished” service to the police department.