By Andrew Binion of the Kitsap Sun

POULSBO — A Kitsap County sheriff's sergeant suspected of drunken driving in October was not arrested or charged with a crime, despite being found sitting behind the wheel of his personal vehicle, keys in hand, smelling of alcohol, covered in vomit and admitting to a Poulsbo police officer that he was drunk and had just driven himself home.

No outside law enforcement agency was called to the home of Sheriff's Sgt. Jim Porter to investigate the incident the night of Oct. 16, when Poulsbo Officer Jennifer Corn found Porter parked in his driveway, outside Poulsbo city limits, after receiving reports of a possible drunken driver leaving Regal Cinemas on Edvard Street.

After hearing details of the case, an experienced DUI defense attorney said it was "ridiculous" that no arrest occurred.

In her report of the encounter, Corn wrote that she had known Porter for about 18 years. Porter is a 23-year veteran of the office and was promoted to sergeant in 2003.

Fellow Sheriff's Sgt. Scott Dickson and Poulsbo Chief Al Townsend were called to the scene. Townsend later said Corn's actions were appropriate given the circumstances.

From a review of Corn's report and her body camera footage, obtained from the city by the Kitsap Sun through a public records request, it does not appear Corn asked Porter to perform voluntary field sobriety tests, did not ask him to take a voluntary field Breathalyzer, did not look in his car and did not ask whether he had taken any medications.

In fact, Corn is heard struggling with how to react and how to contain Porter, who did not follow her directions and told her to go away. Corn claimed that she did not know it was Porter until she saw him, dazed in his Jeep.

"I would like to pretend like this never happened, but I can't," Corn says in the footage, adding that she hoped there was nothing that would legally "stick."

Corn did ask if he were drunk and whether he had driven, to which Porter replied "yeah" and "yes," which is audible on Corn's body camera footage.

Earlier that evening, at 9:25 p.m., another Poulsbo officer had contacted Porter in the parking lot of the movie theater. An employee called 911 to report a highly intoxicated man sitting in his car and had waved off a suggestion from theater customers that he not drive.

Porter refused to show the officer his identification. He also refused an offer of a ride home or a call for a cab, but Officer Danielle Branes — who has since resigned from the department for unrelated reasons — determined the car was owned by a James Porter.

In her body camera footage, which shows Porter in the Jeep, Branes says she can smell alcohol and later describes Porter as "totally wasted." Branes told Porter he was not in trouble but admonished him not to drive and suggested he toss his keys in the back of the vehicle. She asked theater employees to call 911 if Porter drove away, according to her report, and then left.

At about 11:10 p.m., a theater employee called 911 to say the Jeep had left, and Corn wrote in her report that considering the level of intoxication — as reported by Branes — she was concerned and drove the route to the registered owner's house off Clear Creek Road "to ensure he did not crash somewhere." Porter lives about 5 miles from the theater, outside city limits.

When Corn arrived at Porter's house, along with Reserve Officer Joshua Krebs, who was riding with her, she recognized an older model Sheriff's Office car parked at his house, which is when Corn wrote that she realized it was Porter. Corn is married to a Kitsap sheriff's deputy and is a former reserve deputy for the office.

"I just came to make sure you made it home, but seeing you in the vehicle I had to check on you," Corn says in the video. "I'm wishing I hadn't, but now I'm stuck."

"You are not stuck," Porter says to Corn.

"I am, because somebody saw you drive out of there," Corn says.

Both Corn and Krebs wrote that Porter had apparently vomited on himself.

When Townsend arrived, and she began to explain to him the situation, Corn told Townsend she was turning off her camera. She turned it back on twice, but footage released to the Sun by the city did not show any discussion she had with Townsend or Dickson.

Corn wrote that Dickson arrived, called the theater and spoke with a manager. The manager reported to Dickson — according to Corn — that she did not see Porter drive the vehicle, only the vehicle leaving. An employee at the theater refused to allow the Sun to speak to the manager, referring all press inquiries to the company's corporate headquarters.

"There was no probable cause for (Porter's) arrest," Corn wrote. A Public Records Act request for Sheriff's Office documents involving the incident is pending.

Earlier that month, Oct. 5, Porter rear-ended a car that was stopped to turn left off Clear Creek Road at about 8 a.m. The two men in the car that Porter struck were not injured. Another Kitsap County sheriff's sergeant investigated the crash, which left Porter's patrol car badly damaged. Porter told Sgt. Michael Merrill he had come around a bend and the sun was in his eyes, according to documents released by the office.

Porter was placed on paid administrative leave Oct. 17, a day after Corn's stop.

Kylie Purves, Poulsbo city prosecutor, did not file charges against Porter, saying in an email to the Sun that after reviewing the evidence and considering possible defenses, she did not believe an "objective and reasonable fact-finder would convict."

Chief District Court Prosecutor Kevin Kelly said the investigation that was provided for review did not include information about field sobriety tests and other evidence gathered from drunken driving cases.

"We were kind of stuck," Kelly said, who reviewed the case personally along with another veteran deputy prosecutor. "There wasn't any of the evidence we typically get from a DUI investigation, because none was done here."

Kelly said attorneys reviewed the case for drunken driving charges, rather than "physical control" of the vehicle, as Kelly said there is an affirmative defense against "physical control" charges that is allowed in court for when a vehicle is "safely" off the roadway. Also, the keys were not in the ignition, which Kelly said was critical. Kelly said he reviewed the video but could not clearly hear whether Porter admitted to driving. Kelly also said attorneys discussed the fact that those admissions were made without Porter being advised of his rights.

"We wanted to make sure we made a fair and appropriate decision that we would make regardless if the person is a law enforcement officer or Joe Q. Public," Kelly said, adding, "We just didn't feel like we had enough."

Porter returned to work Nov. 11, according to a statement from the Sheriff's Office, after the office received word no criminal charges would be filed.

Sheriff Gary Simpson said Tuesday that an internal affairs investigation is due in the coming weeks, along with possible discipline for Porter. He said he has not inserted himself into the process and is not familiar with details as he does not want to unduly influence the investigation.

He also said supervisors in the office know to avoid situations that could be construed as a conflict and know when to call in another agency to assist.

"We don't ever want to go down that road," Simpson said of having to answer questions from the public about preferential treatment of deputies, and added that he had faith in Townsend's judgment.

"If Al Townsend felt there was a problem here, if things are not going the way they should go, I know he would be calling my cellphone and saying, 'What do you want to do?'" Simpson said.

Townsend wrote Wednesday in response to email questions that he was not aware Porter had admitted to driving drunk but wrote that calling the Washington State Patrol was suggested to Dickson at the scene. Since it was outside the city limits, Townsend said the scene was turned over to Dickson.

Townsend agreed with Corn's determination that there was no probable cause to further investigate — as officers had no witnesses who saw Porter actually drive the Jeep. He wrote that turning off body cameras is allowed by policy so officers can discuss enforcement actions and options and is a common practice.

Townsend also wrote that Corn was placed in a difficult situation and did the best she could, that Poulsbo police do not arrest people under similar circumstances and that he was not aware of anyone in Kitsap County being charged under similar circumstances during the past 15 years.

"If so, I would certainly be interested in hearing about it," Townsend wrote.

"Her (Corn's) decision to call out her supervisors and the KCSO supervisor only go to reinforce that she made no effort to provide any special treatment to Porter, and in fact, suggests that he was treated with more scrutiny than an average citizen would be," Townsend wrote.

Two former prosecutors who are now defense attorneys, and say they have been involved in thousands of drunken driving cases, said they have personally had cases where people were arrested and prosecuted under similar circumstances as Porter. Both said he could have been arrested on suspicion of "physical control" of the vehicle, which is essentially the same as drunken driving, but does not require proof that a person drove, only that they had control of the car.

Attorney Linda Callahan, who defends people accused of drunken driving in several Puget Sound counties, including Kitsap, said it was "ridiculous" that Porter was not arrested by Corn.

"I would think she is derelict in her duty for not," Callahan said. "I defend these people, I'm not going to be leading the race to get this guy convicted, he needs help, but this is a case of the blue wall. They protect each other."

Both Callahan and attorney Ryan Witt, who practices in Kitsap and Pierce counties, said they have had clients arrested on suspicion of physical control who didn't have keys in the ignition and with no witnesses to say they were driving.

Simpson said it was too easy for defense attorneys to reach the conclusion that Porter received preferential treatment.

"If it was their client, they would have the totally opposite opinion," Simpson said, noting that the attorneys did not have all the facts in the case. "They have nothing to lose from making those comments."

Witt said, however, the bare facts of the case led him to the conclusion that Porter could have been arrested, and he and Callahan said that the Washington State Patrol should have been called and completed an independent investigation.

"They arrest people who they didn't see driving every day," Witt said.