CHARLESTON, West Virginia (AP) – A man accused of passing gas and fanning it toward a police officer is no longer being charged.

The Kanawha County prosecutor’s office requested that the charge of battery be dropped against 34-year-old Jose Cruz.

According to a criminal complaint, Cruz passed gas and made a fanning motion toward patrolman T.E. Parsons after being taken to the police station for a breathalyzer test. Cruz denies fanning the gas and says his request to use a restroom when first arriving at the station was denied.

An assistant says Magistrate Jack Pauley signed a motion to dismiss the charge Thursday.

Cruz, who was arrested Tuesday, still faces driving under the influence and other charges.