Article posted: 10/29/2013 9:09 PM

South Elgin DUI guilty plea stands despite officer's policy violation

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A South Elgin cop who arrested a 22-year-old man in September 2012 on DUI charges violated departmental policy when he recommended to the man's mom that her son use a certain defense attorney.

Officer Bryan Kmieciak gave the mother of Travis Eubanks a pen with defense attorney Todd Cohen's name on it, she testified Tuesday.

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"He held the pen by the tip and said 'Here is an attorney that I recommend," said Margaret Eubanks, who went to the police station to get an insurance card to retrieve her SUV when she encountered Kmieciak in the parking lot. "He said if I were in Travis' situation, he would talk to this attorney."

She replied that the family usually uses attorney Garrett Malcolm, but Kmieciak discouraged it, saying Malcolm was "rude and unprofessional," she testified.

Her testimony came during a hearing in which Travis Eubanks asked a judge to undo his DUI guilty plea and set the case back to square one.

Eubanks, of the 300 block of Juniper Court, hired Malcolm in the DUI case. Eubanks testified he felt fear of retribution, so he pleaded guilty at his first court appearance on Oct. 1, 2012.

"I was afraid I'd get in trouble for no reason," he said.

Defense attorney Kathleen Colton argued the case because Malcolm also was called as a witness. "It's clear what occurred here," Colton said. "The officer was trying to steer Mr. (Travis) Eubanks, through his parents, to an attorney."

In the end, Judge Thomas Stanfa sided with Kane County prosecutors, who did not call any witnesses in the hearing.

"People are nervous when they come to court. If it turns into paranoia, that's something different. But it's not an objective standard," Stanfa said, noting that he clearly explained Eubanks all of his rights.

Eubanks, now 23, testified that he visited Cohen shortly after his arrest, but felt uncomfortable when Cohen said he was "good friends" with Kmieciak and played on the same softball team as him.

Eubanks pleaded guilty to misdemeanor DUI on Oct. 2, 2012, was fined $1,635, ordered to attend a victim impact panel, and given 100 days of an alcohol monitoring bracelet in exchange for prosecutors lifting the suspension on his license.

Malcolm also testified that Eubanks was "unusually jumpy" at the court appearance last October. Malcolm acknowledged he could have stopped his client and didn't review a DVD of the arrest or the officer's report until after the guilty plea.

"You have no substance," argued Kane County Assistant State's Attorney Joe Cullen, who noted Eubanks' blood alcohol concentration was .16, which is twice the legal limit. "It all comes down to he was afraid in some vague way because a police officer gave his mother a pen with an attorney's name on it and said he was a good attorney."

Cohen did not return a phone message. Kmieciak was at the hearing and declined to comment afterward.

South Elgin Police Chief Chris Merritt said the department policy prohibits what Kmieciak did.

Merritt declined to comment on what, if any, disciplinary action was taken against Kmieciak.

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