“The Suspect’s Speech Was Slurred”
Posted by Lawrence Taylor on July 6th, 2006As with the odor of alcohol on the breath, few police reports will fail to include an observation by the arresting officer that the arrestee exhibited "slurred speech". (See my earlier post, "Alcohol on the Breath: Evidence of DUI?"). The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and we tend to "hear" what we expect to hear. And hearing it supplies the officer with corroboration of his suspicions. Even assuming the honesty of the officer that the defendant?s speech was slurred, there is little evidence that this is symptomatic of intoxication.
Impairment of speech is, for example, a common — and sober — reaction to the stress, fear and nervousness that a police investigation would be expected to engender; fatigue is another well-known cause. Skeptical? Consider the following excerpt from Discover magazine:
Bartenders, police officers and hospital workers routinely identify drunks by their slurred speech. Several investigative groups judged the captain of the Exxon Valdez oil tanker to be intoxicated based solely on the sound of his voice in his radio transmissions. But a team led by Harry Holien, a phonetician at the University of Florida, has found that even self-proclaimed experts are pretty bad at estimating people?s alcohol levels by the way they talk.
Hollien asked clinicians who treat chemical dependency, along with a group of everyday people, to listen to recordings made by volunteers when they were sober, then mildly intoxicated, legally impaired, and finally, completely smashed. Listeners consistently overestimated the drunkeness of mildly intoxicated subjects. Conversely, they underestimated the alcohol levels of those who were most inebriated. Professionals were little better at perceiving the truth than the ordinary Joes….
He thinks his research could encourage police to be more wary of making snap judgments: Mild drinkers might come under needless suspicion.
Saunders, "News of Science, Medicine and Technology: Straight Talk", 21(1) Discover (Oct. 2000).
It makes me sick to see the routine cookie cutter police reports and DS-367 form where everyone demonstrates slurred speech, red, watery eyes, etc. Question: Has anyone had any luck challenging the FSTs in a 1538.5? I just lost one where my client supposedly failed walk-turn, HGN, and one leg stand. No PAS was given, and he blew .12 on the Alcotest. The court wouldn’t let me make foundational challenges as to the methodology and reliability of the FSTs since “they’ve been used for years.” I still pointed out flaws in the cops administration of the FSTs, his knowledge of them, and even his recording of the results. Yet, I still lost. (Although I was able to knock out two of the three factors which he relied on to make the stop in the first place, a Pyrrhic victory of sorts.) How can a sucessful FST challenge at a 1538.5 be mounted?
This motion may be more appropriate to a 402 motion in limine than a 1538.5 motion to suppress, Nelson, but whatever works….
The California Evidence Code provides no grounds for admissibility called “It’s always been done that way”. The simple fact is that the proponent of the evidence — the prosecutor — has the burden of laying a foundation: You do not have the burden of showing there is no foundation.
Having said the obvious, you and I both know the political/judicial realities of life in the California trenches. You’ve probably got an ex-D.A. on the bench, or one who wants MADD’s approval come election time, and so you get rulings like “It’s always been done this way, counselor” or the fallback cliche “That goes to the weight, not the admissibility”. The only remedy is to make sure the record is clear, and hope the appellate justices understand the issues and apply the law. And yes, I well know how frustrating it all is….