When Daytona Beach Shores police stoppedColton Phillipsin his truck with the engine running in the parking lot of the Biggins Gentlemen's Club on Aug. 28, they determined he was too intoxicated to drive.
They arrested Phillips, whose probation sentence for cocaine trafficking made it illegal for him to drink alcohol or go into a bar.
But Phillips never went to jail. Police body camera video also shows that he was not asked to take a breathalyzer test.
Instead, Phillips was released on his own recognizance. Thenone of the officers gave him a ride home.
Daytona Beach Shores Public Safety Director Stephan Dembinsky, in a News-Journal interview, called the decision to not take Phillips to jail unusual.
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“Do I wish they had taken him to jail? Yes,” Dembinsky said. “But I don't think they could have been able to get a (drunken driving) conviction.”
Things could have gone very differently for Phillips, said Craig Trocino, director of the Miami Law Innocence Clinic at the University of Miami School of Law.
Besides the probation violation, officers could have more fully investigated whether a charge of driving under the influence was warranted against Phillips, Trocino said. But the probation violation itself was enough for police to take Phillips to jail, he said.
“A probation violation is arrestable and non-bondable,” Trocino said. “You can hold somebody on a probation violation without a bond. But they let him go home. They not only let him go home, they drove him home.”
Flem Whited, a Daytona Beach attorney who specializes in DUI defense, said he believes police had enough information to charge Phillips with DUI. Whited was not provided the name of the person involved but rather a description of what took place.
“There’s absolutely no doubt that he is in actual physical control ofthat motor vehicle,” Whited said. “They don’t have to see the person driving it.”
While the decision not to take Phillips to jail or charge him with DUI may have been questionable, it did not appear to have anything to do with the prominence of his father, Tim Phillips, owner of P&S Paving and a member of the CEO Business Alliance.
Body camera video shows that Colton Phillips only toldthe officers his father's name, and pointed out that his company paved Daytona International Speedway,after the officers had decided not to take him to jail or arrest him for drunken driving.
At a Sept. 29 hearing before Circuit Judge Dennis Craig, both Phillips and his defense attorneyAaron Delgado declined comment. Craig set a Nov. 15 hearing to consider the case again.
'He would be absolutely DUI'
Police officers were checking the tags of vehicles in the parking lot of Biggins Gentleman's Club at 2324 S. Atlantic Ave. when they ran Phillips' tag and it came back withhis probation status. Apolice report saysthe time was about 12:27 a.m. on Aug. 28.
Body camera video shows officers approaching Phillips as he was slowly backing up his truck in the Bigginsparking lot.
Daytona Beach Shores Public Safety Officer Laura Diedesch asked Phillips to roll the window down and then asked him to put the pickup in park and step out and talk to her. She then asked Phillips to turn off the pickup's engine.
“What’s going on?” Phillips asked.
“Keep your hands out of your pockets, Ok?.” Diedesch said. “So you’re on probation, right?
“Yeah, I am,” Phillips said.
The police officers repeatedly told Phillips to take his hands out of his pockets, body camera video shows.
“Keep your hands out of your pockets. I understand you might be a little bit intoxicated so that might be a little bit hard for you to understand,” Diedesch said at one point.
She asked Phillips what were the conditions of his probation. When he hesitated, she told him she already knew, and repeatedthe question.
“I’m not supposed to be drinking,” Phillips said.
“You’re not supposed to be drinking. You’re also not supposed to be at bars,” Diedesch said.” “Keep your hands out of your pockets. Thank you.”
She toldPhillips that he was being detained and to remain with the other police officer while she talkedto abar employee.
“Get his name and date of birth,” Diedesch said to the other officer.
Diedesch walkedup to a bar employee.
“Was he inside?” she asked.
The bar employeetoldher yes.
“He had one beer and we cut him off,” the man said. He added thatPhillips did not cause any problems and had leaned against a pool table while looking at text messages.
Diedesch called her supervisor and explained the situation.
“I was gonna ROR (release Phillips on his own recognizance) if you’re OK with that. He'stwisted though and probably shouldn’t drive anyway,” Diedesch said. “He was going to drive. If he would pull out, he would be absolutely DUI."
'God forbid you kill yourself'
She then walked back to Phillips and the two other officers. She explained to Phillips that he would be arrested but not physically detained and his probation violation would be reported to his probation officer.
“This is unacceptable. And you're about to drink and drive. I know you've been drinking, OK? God forbid you kill yourself or someone else,” Diedesch said.
She told Phillips he would get a ride home.
“And I'm going to give you a ride home," Diedesch said. "After I get all the information I need for your arrest paperwork. You understand? Does that sound fair instead of going to jail for DUI and for violating your trafficking cocaine offense?"
She asked Officer Jack Ransomto get Phillips information for the charging affidavit and she walked back to Biggins to speak with the employee. Officer Enrique Rosario went with her.
“This is not a traditional way we handle things," Diedesch told Rosario. "But it's making the best of what could be a messy situation.”
Diedesch returned a call from the News-Journal but saidto send any questions to her via the department's public information officer. The News-Journal emailed questions but no one responded.
Dembinsky told The News-Journalhe didn't know what Diedeschmeant by a "messy situation," but it may be that she didn't think she had enough to make a DUIarrest.
“No officer likes to make bad arrests,” Dembinsky said.He calledDiedesch a good officer.
'Look up who my dad is'
Back to the Biggins parking lot on Aug. 28, Officer Jack Ransombegangathering information from Phillips.
“What do you do for work?” Ransomasked.
“Pave roads," Phillips said. "Look up who my dad is.”
"Who'syour dad?" Ransom asked.
"He paved most, he paved the (expletive)," Phillips said.
“What’s his name?” Ransom asked.
“Tim Phillips,” Colton Phillips said.
“No way, for real?” Ransom replied.
“Yeah” Phillips said.
“P&S Paving?” Ransom said.
"Yeah, he paved the speedway,” Phillips said, referring to the 2010 repaving of Daytona International Speedway.
“My girl was just at your place in Bunnell yesterday,” Ransom replied, referring to a ranch Tim Phillips owns in Flagler County.
“You work for P&S?” Ransom said. "You work for them, your dad?"
“I work with them, yeah. That’s my dad, you know,” Phillips said.
“Your dad is a very wealthy man,” Ransomsaid.
A manager from Biggins then parked Phillips' truck, and it was decided that Ransom would give Phillips a ride home. The officer followedPhillips to his pickup truck to get his phone and his keys.
'Man, you [...] slammed those Stellas'
Once at the truck, Ransom shinedhis flashlight inside, looking around in the front and back passenger compartments of the crew cab.
Ransom foundan open 12-packof Stella Artoisbeeron the floor in the back.
“Man, you (expletive)slammed those Stellas,”Ransom said.
As they walked to Ransom’s police SUV, he asked againabout the beer.
“How many of them Stellas you drink, the whole case?”
Phillips’ response is unintelligible.
When Ransom dropped Phillips off at his home, Phillips asked if he could have someone get his truck for him.
“Go get it in the morning, just go walk there and get it in the morning, all right?” Ransom said.
'Too twisted to drive'
Daytona Beach Shores Public Safety Director Dembinsky said officers decided not to charge Phillips with DUI because they didn’t see him drive on a street, so they did not have a reason, such as an errant driving pattern, to stop him for DUI.
“The only way they could have arrested him was if they had let him get out onto A1A,” he said.
According to the body camera video, the officers believed Phillips was intoxicated.
“They determined that he‘s too twisted to drive,” Dembinsky said. “They talked to the sergeant and decided to give him a courtesy drive.”
But Trocino said police did not need probable cause to stop Phillips on suspicion of driving while intoxicated since they already had probable cause to stop him for a probation violation and take him to jail.
He added thatpolice did not need to see Phillips driving on a road to charge him with driving under the influence. He said Florida statutes state that it is illegal to be under the influence of alcohol while driving or while being in actual physical control of the vehicle.
“Physical control does not mean that you have to physically be driving,” Trocino said. “It can mean that you’re sitting in your car in a parking lot with the keys in your pocket or with the car started or with the keys in the ignition and the car off. The theory on that is that you're in actual physical control. You can make that decision to start the car and drive under the influence.”
Whited, the DUI attorney, agreed an intoxicatedperson behind the wheel of a running truck isin physical control of that vehicle andcanbe charged with DUI.
The attorney added that he's heard of cases of other law enforcement agencies giving intoxicated people courtesy rides homes from special events. He said when police give intoxicated people rides home rather than arrest themthey expose themselves to liability.
Volusia County Sheriff Mike Chitwood gave the Daytona Beach Shores officers credit in Phillips' case for keeping their body cameras running during the encounter. He said the officers used discretion and made a judgement call, but it’s not the one he would have made.
“I would have locked him up for DUI and violated his probation for being out there," Chitwood said. "They kept their body cameras running so Idon't think they did anything nefarious."
He said the Sheriff’s Office only gives courtesy rides to witnesses, victims or citizens in distress. The fact that Phillips was on probation for cocaine traffickingshowed hehad already received a break, Chitwood said.
