Bowling Green City Commissioner Brian “Slim” Nash’s arrest last week on a charge of alcohol intoxication generated considerable public attention – some of it focusing on a question of whether the events surrounding the arrest should have resulted in the more serious charge of operating a motor vehicle while under the influence.
In the arrest citation from the Thursday night incident, Warren County Sheriff’s Deputy Brian Wise noted that he observed Nash, 49, walk out of Southern Kentucky Performing Arts Center toward his vehicle in an intoxicated state, get into the vehicle and start the engine.
Kentucky law forbids a person to “operate or be in physical control of a motor vehicle” while under the influence of alcohol or any other substance that impairs a person’s ability to drive, but the statutes outlining the state’s DUI laws offer no elaboration on what that phrase exactly means.
On Friday, when media outlets published reports on Nash’s arrest and the Warren County Sheriff’s Office posted a news release on its Facebook page, many online commenters asked why Nash was not charged with DUI if the vehicle had been started. Later in the day, Sheriff Brett Hightower wrote in a post on the WCSO’s Facebook page that he had similar questions about the specific charge against Nash upon being notified early Friday that the commissioner had been booked into Warren County Regional Jail in Bowling Green.
Hightower wrote that he met with Wise on Friday and was given the deputy’s discretionary reasoning for the charge of alcohol intoxication in a public place.
“In light of what transpired and reviewing this incident, I am most confident that there would be different charges if this same scenario happened again,” Hightower wrote in the Facebook post Friday.
On Tuesday, Hightower told the Daily News that he is attempting to determine whether any video footage exists of the incident for him to review. Speaking in general terms, Hightower said officers have some discretion on whether to bring a DUI charge, depending on whether a vehicle is moving while the operator is impaired.
“There’s decision-making that goes on daily in law enforcement and it’s important you have people there making good, wise decisions, and there’s not a clear-cut rule on every single one of them,” Hightower said. “Every agency could be slightly different, but from my perspective, with as dangerous as driving under the influence is, if you’re operating a motor vehicle under the influence of alcohol, the law is clear.”
Alan Simpson, Nash’s attorney, said that when law enforcement officers make a decision to charge someone with a crime, they should take into account what can be proved in court beyond a reasonable doubt.
“The officer made the appropriate decision in this case,” Simpson said. “He’s an experienced enough officer to use that discretion, which I believe he properly exercised ... officers make decisions based on their training and experience, and in this particular case I would have to respectfully disagree with the sheriff’s statement and say this officer exercised proper discretion and did the right thing.”
Attorney Brian Lowder, who has defended DUI cases but is not involved in the Nash case, said courts consider a number of factors when a DUI case involving a defendant in a non-moving vehicle appears on the docket.
In those scenarios, courts have to determine whether the person was actually operating the vehicle. A sleeping driver in a parked car with the heat running on a cold night, for instance, presents more legal questions than a driver weaving around the road and traveling the wrong way on a one-way street.
“You look at circumstances such as whether or not the person was asleep or awake in the vehicle, whether the car is running, the location of the vehicle and the circumstances of how that vehicle arrived at that location and the intent of the person behind the wheel,” Lowder said. “Those are some of the factors courts look at to determine whether there was probable cause the person was operating the motor vehicle.”
Nash pleaded guilty to the alcohol intoxication charge in a court appearance Tuesday. He was ordered to pay a $25 fine and court costs by Warren District Judge Sam Potter.
Nash was arrested in 2013 on suspicion of DUI, at a time when he was not on the city commission. The case remained active in Warren District Court after he was elected to the commission in 2016, and it was resolved in 2017 with a dismissal of the DUI charge and a guilty plea to a count of improper turning, for which Nash was fined $100.
Nash has served on the city commission in two stints. He first served eight years before losing his seat in 2012, then returned to the commission in 2016 and was reelected in 2018.