The third-highest ranking member of the Chicago Fire Department has resignedafter failing a Breathalyzer test, but questions linger about why he has not been charged with driving under the influence.
Chicago Fire Department officials on Thursday night released a statement confirming that CFD Deputy Commissioner John McNicholas failed a sobriety test after a crash early Wednesday.
“The investigation thus far has found that McNicholas was operating his city vehicle outside of department policy, and that following a mandatory breathalyzer test that morning, McNicholas was driving under the influence of alcohol,” CFD spokesman Larry Langford said in a statement. “Yesterday, McNicholas opted to resign his position as Deputy Fire Commissioner and has since agreed to full separation from the fire department.”
Langford confirmed McNicholas also was issued a citation from police for negligent driving.
But sources tell the Chicago Sun-Times that McNicholas is unlikely to be charged with driving under the influence because the test was not administered by police responding to the crash. McNicholas was instead administered the test by the internal affairs division of the fire department … and police are not allowed to use a fire department test because it is measured on a different standard.
Chicago Police spokesman Anthony Guglielmi on Thursday confirmed that McNicholas was ticketed for negligent driving, but he said the investigation remains open. He did not comment on whether police administered the field sobriety test and said he could not comment on any pending charges.
Police said initially that no citations or charges had been issued just after the crash, but police and fire officials were conducting a joint and active investigation.
McNicholas tendered his resignation to department Commissioner Jose A. Santiago on Wednesday and is “fully cooperative with the Internal Affairs Division,” Langford said.
According to the fire department’s last chance policy, which is in their contract, anyone caught for an alcohol or drug offense can be placed on a type of probation where they are tested randomly for alcohol or drugs for a year. If they test negative during that period, their probation is lifted.
McNicholas will not be given that opportunity, sources said. But McNicholas will still receive a pension for his 36-year career with the fire department.
The Chicago Police Department struggled Friday to explain why the third-highest ranking member of the Chicago Fire Department was neither tested for alcohol in his system nor charged with drunken driving after crashing his city-owned SUV this week near Lake Shore Drive in Lincoln Park.
The Chicago Fire Department concluded that John McNicholas was under the influence of alcohol at the time of the accident. But the breathalyzer test was administered hours after the crash happened, at fire department headquarters at 35th and State, by the Chicago Fire Department’s Internal Affairs Bureau.
Chicago Police officers were on the scene of the accident on LaSalle Drive just off Lake Shore Drive for up to two hours but never administered a field sobriety test or breathalyzer test, sources said. Four squad cars were dispatched to the scene and were there from 30 minutes to two hours.
The failure to administer those tests raises questions about whether McNicholas was given preferential treatment by police and comes at a time when the Chicago Police Department is working to restore its battered image and trust with the public.
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.
Both tests were important, but there are two different standards.
The fire department has as close to a zero-tolerance policy as it can get. Any department member whose blood-alcohol level exceeds .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 Wednesday, agreed to a full separation from the Chicago Fire Department after taking the test that is mandatory after all accidents involving fire department vehicles.
The state standard for charging a motorist with DUI is .08. Since police officers on the scene never tested McNicholas for that standard, he is not expected to be charged with DUI.
On Friday, Chicago Police Department spokesman Anthony Guglielmi insisted that the police investigation of the accident involving McNicholas was still open and that police were conferring with prosecutors about possible charges. So far, McNicholas has been ticketed only for negligent driving. He would not confirm that police officers who were on the scene of the accident failed to administer tests to McNicholas — much less explain why.
If officers gave McNicholas a pass, “I can assure you that, if that is the case, they’ll be in trouble.”
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 noticed immediately 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. As for its part of the investigation, the Chicago Fire Department appears to have handled the investigation by the book.
McNicholas did not return to his career service rank of battalion chief. Nor was he eligible for the last-chance policy included in the firefighters’ contract that allows members with drug or alcohol problems to keep their jobs if they submit to and pass random drug and alcohol testing over a one-year period.