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UPDATE: West Allis sergeant, officer suspended for violating department policy in OWI investigation

Updated: 5:00 p.m. on August 13, 2018

WEST ALLIS, Wis. (CBS 58) --  CBS 58 Investigates learned a sergeant and an officer were suspended after an internal investigation.

On Monday, CBS 58 Investigates obtained the West Allis Police Department's internal investigation report. That investigation found the sergeant and the officer violated multiple department policies and procedures during the OWI crash investigation.

The sergeant was suspended for five days without pay. The officer was suspended for seven days without pay. Neither officer had any prior suspensions.

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Posted: 10:45 p.m. on August 10, 2018

WEST ALLIS (CBS 58) -- New video sheds light on what went wrong in an fatal OWI investigation, that led to the suspect getting off without charges.

The crash happened at 92nd and Lapham in West Allis on January 30, 2018. A 51-year-old woman rear-ended one car, then continued across the intersection and slammed in to a second car. That second car and the suspect’s car then smashed into a building. The driver of the second car, 78-year-old Kathleen Deischel, died a day later from her injuries.

CBS 58 Investigates reported in July that errors forced the District Attorney’s Office to not file charges. Now CBS 58 Investigates obtained hours of police body camera video from the investigation.

CBS 58 is not naming or showing the suspect because she is not charged with a crime.

Video shows the suspect, a then 51-year-old West Allis woman, at the hospital after her arrest. She is given a blood test and a breathalyzer test.

The suspect initially denied drinking, but after blowing a 0.24, three times the legal limit, she came clean. She admitted first to have a couple drinks ultimately admitted to having multiple drinks and shots throughout the day.

“Why did you drive?” an officer asks the suspect.

“Because I was stupid and wanted cigarettes,” the suspect responds.

It seems like a straight forward case, but the suspect isn’t facing charges. Prosecutors say they can’t use the evidence collected because police made mistakes before the arrest.

WAPD OWI ERROR WEB EXTRA from CBS 58 News on Vimeo.

The problems started at the scene. The suspect was driving this black jeep and slammed in to this tan Camery, killing the driver. The officer who interviewed the suspect on scene repeatedly said she didn’t seem drunk.

“She’s walking fine, she’s talking fine,” the officer is heard saying on body camera video.

The officer even tells a sergeant he doesn’t have probable cause to get a blood test.

“So you have nothing?” the sergeant asks.

“She’s walking fine, talking fine, all I smell on her is perfume,” the officer says. “ The only thing she took, I asked her when’s the last time you drank, she said three days ago. She really doesn’t drink that much.”

Deputy District attorney Kent Lovern  says it’s statements like this that destroy the case.

They talked among themselves about the situation, that she was not intoxicated,” Lovern said. “After that they couldn't order her to do things. They had to get her consent to do things.”

Police did ask the woman to do a voluntary blood test.

“Yay? Nay?” the sergeant asks the officer.

“She said no because she’s worried about her dogs,” the officer said.

So officers decide to take the suspect home so she can let her dogs out then ask again for the voluntary test.

Back at her home, the suspect still refuses to consent to any tests. So the officer orders her to do field sobriety tests

 “They did not have reasonable suspicion to engage her in field sobriety tests,” Lovern said. “They had to ask her permission and she did not give permission."

Lovern says it doesn’t matter that the suspect failed those tests. None of those tests or anything that happened after the arrest can be used in court.

Back on scene, after learning the woman was in fact intoxicated, other officers question why field sobriety tests weren’t done right away, just based on the severity of the crash.

“That’s why I say do the fields,” one officer says on body camera video. “We all miss s***.”

West Allis Police Deputy Chief Robert Fletecher tells CBS 58 an internal investigation was conducted and officers were disciplined and re-trained.

In a statement he says the department made policy changes and now, more experienced officers will handle drivers during investigations of serious and fatal crashes.

Benjamin Wagner, an attorney for the victim’s family, declined to comment on the investigation, but did say, “We are fighting for the victim’s family to achieve justice in every way we can in the civil justice system.”

CBS 58 Investigates did file an open records request for the internal investigation in order to find out what discipline was issued. We’re still waiting for those records.

Here is Deputy Chief Fletcher’s full statement on the crash:

"You have inquired into the status of a fatal crash that occurred at S. 92nd St. and W. Lapham St. on January 30th, 2018. This crash resulted in the death of Kathleen C. Deischel. On the date of the crash, the West Allis Police Department arrested a 52 year old West Allis woman for operating a motor vehicle while intoxicated. The case was referred to the Milwaukee County District Attorney’s office for review and determination regarding the filing of criminal charges.

Ultimately, the Milwaukee DA’s office did not issue charges against the suspect. It was determined that during the course of the investigation errors were made by the West Allis Police Department. Based upon the errors, the Milwaukee DA’s office did not believe the evidentiary blood test results obtained would be admissible in court. Lacking the blood test result, the District Attorney’s office did not believe the case could be proved beyond a reasonable and therefore did not file criminal charges.

Based upon the decision and reasoning of the DA’s office, the West Allis Police Department conducted an internal investigation into the actions of the investigating officer and supervisor involved in the OWI investigation. The investigation did not find any willful wrong doing or bad intent on the part of the involved WAPD members. The investigation did find the OWI investigation was not conducted thoroughly and properly.

The West Allis Police Department is committed to providing the best possible service to the community. As part of this service, the WAPD is committed to aggressively enforcing the laws against intoxicated driving in the State of Wisconsin. This is evidenced by the fact that in 2016 the WAPD arrested over 700 individuals for OWI and in 2017 arrested 693 individuals.

As a result of the internal investigation, the West Allis Police Department instituted policy changes, provided additional training to the involved officer and discipline was imposed. The purpose of this corrective action is to help ensure the errors which occurred on January 30th are not repeated and that individuals violating OWI laws are held accountable for their actions."

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