Archive for October 30th, 2004

“Xeroxed” DUI Symptoms

Saturday, October 30th, 2004

As any experienced DUI attorney knows, many police officers are considerably less than honest in their written DUI reports and in their testimony. One of the practices where this is most readily apparent is the use of what I’ve called "Xeroxed Symptoms". This is the tendency to "observe" exactly the same "symptoms" in every person the officer arrests for drunk driving.

With Officer Jones, for example, the suspect fumbles with his wallet when getting his driver’s license, leans against the car for support, and misses "R" in the alphabet recitation — in every case. Officer Smith, on the other hand, seems to only encounter citizens who weave on the highway, admit to having three martinis, and in the walk-and-turn test lose their balance on the third step back. If a criminal defendant did this, we would call it "signature" evidence. When a DUI officer does it, we call it "coincidence".

The phenomenon is so common that I described it in the original edition of my book, "Drunk Driving Defense", published 25 years ago (now in its 5th edition). "To determine whether xeroxed symptoms exist", I wrote, "counsel should include in his discovery motion a request for all reports made out by the officer in other DUI cases during a given period of time — for example, for 15 of the officer’s working days before and after the arrest". In later editions, I commented on the increasing use of computers by DUI officers to create reports — and on the tendency to "patch" text from one report into another.

These claims have, of course, been loudly and indignantly denied by prosecutors and law enforcement.

Well, imagine my surprise when a fellow DUI attorney, Cole Casey, forwarded a news article from the San Francisco Chronicle (October 13, 2004) a few days ago with the headlines "Suspicious Reports Ensnare Officers". The sub-headlines further declared, "False, repetitive statements filed in dozens of cases": "Seven times in the past three years, veteran Pittsburg (California) police officer James Hartley reported remarkably similar behavior by drunk driving suspects as they tried to walk a straight line." "Hartley wrote in his reports that each suspect "stumbled after the second step" but kept walking, then "flung" his arm or leg out for balance before turning around, staring at the officer and asking, "Now what?".

It wasn’t a coincidence. Hartley and Officer Javier Slagado — Officer of the Year in 2001 — admit filing dozens of falsified reports. "While it’s not clear whether the two men discussed the practice, authorities said they used old arrest reports as templates — often with few changes — rather than writing reports from scratch on drug and alcohol cases. "In some cases, prosecutors said, entire paragraphs appeared verbatim from one report to the next. Much of the redundant information involved field sobriety tests used to establish cause for an arrest and a blood or urine test…."

So what does an officer get for filing false reports, felonious perjury, and sending dozens of possibly innocent citizens to jail? Six months of watching TV at home for each.

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