The Chicago Police Department’s Internal Affairs Division is investigating whether the third-highest ranking member of the Chicago Fire Department received favored treatment after crashing his city-owned SUV near Lake Shore Drive in Lincoln Park.
Sally Daly, a spokeswoman for the Cook County state’s attorney’s office, disclosed the existence of an Internal Affairs investigation after revealing that former Deputy Fire Commissioner John McNicholas would not be charged with DUI — even though he had a blood-alcohol level nearly twice the legal limit nearly four hours after the April 20 crash.
The Breathalyzer was administered by the Chicago Fire Department’s Internal Affairs Bureau. Chicago Police officers were on the scene of the crash on LaSalle Street just off Lake Shore Drive for about two hours but never administered a field sobriety test.
Unlike Illinois State Police, Chicago Police officers do not carry Breathalyzers in their squad cars. If a Breathalyzer is administered, it has to be done at the district station. That was not done in McNicholas’ case.
“We reviewed the case based upon the referral from the Chicago Police Department, and the facts of the incident do not meet the legal elements of a felony DUI [prior convictions, great bodily harm that occurred in the incident],” Daly wrote in an email to the Chicago Sun-Times.
“We informed CPD of this [Monday]. It is within their discretion to charge the defendant with a misdemeanor DUI. As for allegations that he received favored treatment, we have been advised that CPD’s internal affairs unit is investigating these allegations. We have not yet heard from IAD as to whether they believe there is evidence based upon that investigation to review for any potential criminal charges.”
Chicago Police Department spokesman Anthony Guglielmi had no immediate comment about the Internal Affairs investigation. Nor would he say whether McNicholas would be charged with misdemeanor DUI.
McNicholas was ticketed for negligent driving. He could not be reached for comment.
Last month, Guglielmi would not confirm that police officers on the scene of the crash failed to administer tests to McNicholas much less explain why.
He maintained that if officers gave McNicholas a pass, “I can assure you that, if that is the case, they’ll be in trouble with [Police Supt. Eddie] Johnson. Johnson won’t tolerate that.”
The crash that sent City Hall scrambling into an all-too-familiar damage-control mode happened about 12:50 a.m. on Wednesday, April 20.
McNicholas was driving his Chicago Fire Department SUV west on LaSalle Drive just off Lake Shore when another vehicle cut him off, police said. The SUV swerved to avoid a collision, went over a curb and struck a utility pole. No one was hurt, but the vehicle was heavily damaged.
Instead of calling 911 and having the conversation recorded, sources said McNicholas called a “black phone” at the 911 center that is not recorded.
The call taker immediately noticed that the deputy commissioner sounded as if he had been drinking and followed protocol by dispatching a battalion chief and deputy district chief along with police officers, sources said.
McNicholas was well known to the call takers. His father once served as a Fire Alarm office supervisor. His son is a police officer.
When a Breathalyzer was administered at 4:32 a.m. at Fire Department headquarters, McNicholas had a blood-alcohol level of 0.154 — nearly twice the legal limit, officials have said.
The Fire Department has as close to a zero-tolerance policy as it can get. Any department member whose blood-alcohol level exceeds 0.02 — which is possible after just one or two cocktails — is considered “under the influence” of alcohol.
That’s why McNicholas, who resigned as deputy commissioner after the crash, agreed to a “full separation” from the Chicago Fire Department after taking the Breathalyzer that is mandatory after all accidents involving Fire Department vehicles.
The state standard for charging a motorist with DUI is 0.08. Since police officers on the scene never tested McNicholas for that standard, he has not been charged with DUI.
The failure by police officers to administer either a field sobriety test or a Breathalyzer to McNicholas has raised questions about whether McNicholas was given preferential treatment by police.
It comes at a time when Johnson is struggling to regain public trust shattered by the video of white Police Officer Jason Van Dyke pumping 16 rounds into the body of black teenager Laquan McDonald.
Mayor Rahm Emanuel has acknowledged that there is a code of silence in the Police Department as evidenced by some of Van Dyke’s fellow officers having tailored their stories to match his. They claimed McDonald was aggressively moving toward Van Dyke with a knife in his hand when he was walking away or already on the ground.
Internal Affairs will attempt to determine whether that code of silence extends to the Fire Department.
“It’s pretty much standard practice,” said a source familiar with police handling of accidents involving firefighters and paramedics. “As long as nobody’s hurt, they let the [fire] department handle its own business.”