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Woman refuses sobriety test, deputy gives her 'face-plant' to pavement

One bloody scrape trailed from her left eye to the corner of her mouth, where it met a wide bruise on her chin. More blood-red patches marred her nose, forehead and the skin between her eyes.

Bobbie L. Mael of Lockport says in legal papers that her arms and legs were bruised, too, and she suffered a concussion when an Erie County Sheriff's deputy threw her face first onto the Transit Road parking lot she had pulled into because she felt sick.

He was insisting she get out of her auto to take a field sobriety test.

She didn't want to.

"A person is compelled to follow the lawful orders of a police officer," Deputy Lee Richard said when Mael's lawyers deposed him later.

Mael filed her lawsuit against Richard and Erie County Sheriff Timothy B. Howard in 2013, months after the encounter in northern Erie County early Christmas morning 2012. But the pictures of her bloodied face entered the public realm just  days ago, when presented as evidence in her lawyer's request for Richard's personnel file.

The lawyer, Jon Louis Wilson of Lockport, wants to know more about Richard's training and whether he has been disciplined in the past for excessive force. Wilson said his request is justified because of the deputy's answers during a deposition.

When deposed, Richard acknowledged drivers can refuse to take a field sobriety test, though they can face penalties later for their refusal.

But the deputy then said he ordered the woman out of her car because he expected her to take a field sobriety test anyway.

"I am not able to compel a person to perform field sobriety tests," Richard said in the deposition. "I can ask them if they wish to perform them, and I can ask a person to step out of their vehicle. It is a lawful command by a police officer."

So why, her lawyer asked, did the deputy tell Mael to get out of her car?

"My intention was to perform field sobriety tests," Richard answered.

Richard did not contend that Mael mouthed off to him or threatened him before he pulled her from the driver's seat. He agreed she said she was sick and wanted to be left alone. But she tried to prevent him from opening the car door, he said, and she didn't follow his various commands when she was outside the vehicle.

One command was to put her hands behind her back so she could be handcuffed.

How could Mael take a field sobriety test in handcuffs? Mael's lawyer asked.

Richard explained there was a chance Mael would calm down once cuffed. Then he could persuade the driver to take the test, he said.

Motorists who refuse a field sobriety test can face a Vehicle and Traffic Law violation that could lead to a $150 fine and up to 15 days in jail, said a spokesman for the State Department of Motor Vehicles. Drivers who refuse the blood-alcohol analysis that usually comes after a driving-while-intoxicated arrest can have their license revoked, the DMV said.

Obtaining the personnel records of police officers in New York is another legal wrangle. Unlike many other states, a New York law says the records used to assess an officer's fitness for promotion are to remain private. State lawmakers justified the law by arguing that officers called to testify in criminal trials would be forced to fend off questions about their disciplinary histories if their personnel files were publicly available.

"Personnel files of members of law enforcement are given special protection under the law," said one of Sheriff Howard's top aides, Administrative Services Chief John W. Greenan. "The personnel file will not be released without a signed judicial order."

A hearing on Wilson's request is scheduled for Sept. 12 before State Supreme Court Justice E. Jeannette Ogden. If granted, the judge would review the papers on her own to see if they hold information relevant to the lawsuit.

Mael was 57 when pitched from the driver's seat to the pavement. Richard, who was 26, admitted that her swift transition was rough enough to draw blood.

"From her sitting in the driver's side seat to you pulling her out and getting her stood up against the left rear driver's side door, there was another event that transpired, was there not?" asked Wilson, Mael's lawyer.

"You'll have to be more specific," Richard said.

"Well, didn't she do a face-plant on the pavement, didn't you take her to the ground, to use you words from the criminal trial?"

"Yes," the deputy answered.

"Was that intended to have a calming effect?"

"That was intended to control the individual," Richard said.

Did Richard notice Mael was injured?

"Just a cut to the head," he said.

"Just a cut?"

"That's all I could observe."

Mael was treated at Erie County Medical Center, where her injuries were photographed. She was eventually found guilty of driving while intoxicated, obstructing governmental administration and resisting arrest, according to the Erie County District Attorney's Office. She was sentenced to 120 days in jail, and her driving privileges were revoked for six months.

As Mael began her sentence, she sent an appeal to animal rescuers to take the dozens of animals that were in her care as executive director of the Eastern Niagara Animal Welfare Alliance. The appeal eventually reached the Niagara SPCA, which found some 50 dogs and cats in two homes she owned.

In their response to the lawsuit so far, lawyers for Erie County say, among other things, that Mael's own actions caused or contributed to any losses she suffered as a result of her encounter with Richard.

Greenan, meanwhile, called Mael's lawsuit a "desperate attempt."

"Thanks to Deputy Richard, the streets were safer that evening," he said.

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