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Article updated: 11/4/2013 5:31 PM

South Elgin cop reprimanded after referring attorney in DUI bust

By Harry Hitzeman

A South Elgin police officer who recommended an attorney to a woman whose son the officer had arrested on a DUI charge a night earlier was given a reprimand, but no suspension or dock in pay.

Another defense attorney involved in the case says Officer Brian Kmieciak's punishment should have been more severe.

"His behavior is exactly the kind of behavior that causes the public to distrust police," attorney Garrett Malcolm said.

South Elgin Police Chief Chris Merritt said Kmieciak's violation of department policy after making a September 2012 DUI arrest was a one-time occurrence.

"I gave him a reprimand for his conduct, for violating one of our rules and regulations," Merritt said, explaining that officers are not allowed to recommend any professional or commercial service while executing their official duties.

"He realized it was a mistake. Officers know it's not proper behavior," Merritt said. "This is an isolated incident. We looked into it very thoroughly. We took appropriate action against the officer."

Kmieciak's actions came to light in a Kane County court hearing last week. The arrestee, Travis Eubanks, 23, of South Elgin, sought to undo the guilty plea made in October 2012, the first court appearance after his arrest.

Kathleen Colton, one of the attorneys handling Eubanks' case, argued that Eubanks felt intimidated that Kmieciak recommended his mother hire attorney Todd Cohen and therefore the guilty plea was not made voluntarily.

Eubanks' mother, Margaret, testified she talked to Kmieciak in the police parking lot. He gave her a pen with Cohen's name and law firm's name on it, saying he would hire Cohen if he was in Travis' shoes, the woman testified.

Kmieciak also said the Eubanks' family attorney, Malcolm, was "rude and unprofessional."

Cohen did not return phone messages.

Prosecutors did not object to Eubanks' testimony, but in the end, Judge Thomas Stanfa denied Eubanks' motion to vacate his guilty plea.

Malcolm credited Merritt for taking action against Kmieciak, but believes the punishment should have been harsher because there is a clear conflict of interest in recommending a defense attorney to an arrestee. "I've never seen it before," Malcolm said. "That's why we were so upset about it."

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