Archive for March, 2008

Why Cops Can Only Testify to Incriminating Evidence in DUI Trials

Saturday, March 15th, 2008

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation conducted months earlier?

When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations. Was the driving erratic, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driver’s breath, and how strong? Could it have come from the passenger? Was the driver’s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as “Where are you going? What time is it? Have you been drinking? What? When? Where? How much?” Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.

Then there are the DUI field sobriety tests. How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before he was told to? How many steps out? Did he turn as instructed? How many steps back? Which, if any, of the 18 steps were off the line? Where did each step land relative to the line? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?

And the other three or four drunk driving field tests….In the horizontal gaze nystagmus test (“Follow my pen with your eyes without moving your head”), was there “smooth pursuit” of the right eyeball? What did the pupil movement look like? How many eye passes were there? Did “onset” of nystagmus occur before 45 degrees? At what degree? Was the white of the eye visible at the extreme range of deviation? Was there “distinct nystagmus” at this extreme? And what about all these same observations in the left eye?

And maybe two or three other field sobriety tests. And then the arrest and the breath test at the station: What was the procedure used to administer the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspect’s two samples? And so on….

In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath, and probably after dozens of other arrests in the meantime.

How does he do it?

Well, typically the officer sits down an hour or two after the arrest and writes out a “DUI arrest report”. This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the other hand — the “gun hand” — be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problems….

First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are 18 steps — 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps and exactly where each landed in relation to the line, at what angle and whether heel-to-toe?

And this is just one test. And what about the other tests, and the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall three or four months later in trial everything that happened? He can’t just read from the report: He has to testify to what he knows — that is, to what he independently remembers happened.

But here the law permits him an “out”: He can “refresh his recollection” by reading the report after he is asked a question. Then he can testify with a newly “refreshed” memory — in reality, however, this is a game and he is just reciting what he just read in the report. In most trials, the officer has also “refreshed his recollection” just before testifying, and/or does so repeatedly during his testimony.

Problem: The report only contains incriminating facts.

The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendant’s guilt. He did not bother to record facts which pointed to the defendant’s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot. In other words, in trial he is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, he simply cannot testify about things that happened but which are not in the report. And there will be little if anything in that report which will give the other side of the story.

Put another way, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendant’s innocence.


The National College for DUI Defense

Tuesday, March 11th, 2008

Until a few years ago, attorneys attempting to defend a client against drunk driving charges were general practitioners who had little, if any, understanding of the nature of the offense. They were unfamiliar with such DUI investigatory methods as field sobriety tests, and there was an almost complete lack of seminars on how to defend these clients. Most importantly, defense lawyers were completely ignorant about the complexities of forensic alcohol analysis — whether of blood, breath or urine. How does this breathalyzer work? What is infrared analysis? Gas chromatography? How is alcohol metabolized in the human body? What is Widmark’s formula? Hematocrit? What is retrograde extrapolation and how does it work? Are there  physiological variables in alcohol metabolism between individuals? What medical conditions can effect a breath reading and how? How does radio frequency interference affect a breat test? What happens if blood samples ferment or coagulate?

Chemical analysis of blood, breath or urine involved knowledge of such highly technical fields as physiology, organic chemistry, physics, biophysics, electrical engineering — subjects far beyond the experience and training of lawyers.

Then a few years ago twelve of the most prominent DUI defense attorneys in the country met in a hotel conference room at Chicago’s O’Hare Airport. Over the following three days they hammered out plans for a new professional organization: The National College for DUI Defense. They created this as a non-profit organization dedicated to improving the quality of the DUI Defense Bar, primarily through providing educational seminars. An important secondary purpose of the organization was to address the problem of insularity in the profession — the isolation of lawyers; the College would be a medium through which attorneys across the country could share information, ideas and experiences.

I am proud to say that I was one of those twelve original founders, and have since served as Dean and on its Board of Regents. For each of us, the College was a true labor of love.

The first national seminar was held at Harvard Law School. It was an intense 3-day series of lectures, demonstrations and workshops, featuring a faculty of 22 of the top lawyers, scientists and forensic toxicologists in the field. The experiment was a huge success, and has been repeated every July at Harvard for the past 14 years. In fact, the College’s governing Board of Regents soon expanded this educational effort by creating an annual 2-day seminar in the winter as well. This proved another resounding success: in the recent session held in Las Vegas in October, 2007, there were over 600 lawyers attending from all over the country.

The National College for DUI Defense also created an internet website, along with an email discussion group where attorneys nationwide could share information and ideas. There are currently hundreds of members across the country using this forum — and discovering that what one lawyer in Texas has found effective in dealing with field sobriety tests can be helpful to another in Oregon.

Having provided the means to develop greater skills in this demanding field, the College next addressed the need to recognize those lawyers who had achieved the highest levels of competence. Within recent years, they began certifying attorneys as specialists in DUI defense. In order to be Board-certified, an applicant must satisfy demanding requirements of practice and trial experience, as well as pass intensive written and oral examinations. Subsequently, the College’s accreditation process was recognized by the American Bar Association for a new legal specialty: DUI Defense. After considerable study, the A.B.A. went further and recognized the National College for DUI Defense as the sole organization authorized to certify attorneys as specialists in this new field.

The College maintains its headquarters in Montgomery, Alabama, and currently has a membership of over 900 attorneys.


Catheter Forced Up Penis After DUI Arrest

Wednesday, March 5th, 2008

I don’t think the following story needs any commentary from me:

Tube Inserted Into Man Who Refused to Give Urine Sample

Kelso, Wa.  March 4  –  When a man who was suspected of drunken driving in Longview refused to give blood and urine samples he was taken to a hospital.

His lawyer says he was held down kicking and screaming for a blood draw. And a tube was inserted into his bladder to withdraw the urine.

He sued Cowlitz County. A settlement was reached Friday in which he was paid $15,000, without authorities admitting they did anything wrong…

Welcome to "The War on Drunk Driving".


“The Federal DUI Immunity Act of 1998″

Wednesday, March 5th, 2008

My last two posts, concerning the notorious lack of convictions for drunk driving when a cop, prosecutor or judge is involved, has triggered a flood of email…wanting to know about “The Federal DUI Immunity Act of 1998″.

Hmmm…Sorry, folks, that was just my attempt at humor.  Or perhaps sarcasm.  Or maybe anger.


“Do As I Say, Not As I Do” (redux)

Tuesday, March 4th, 2008

Apparently, Utah does not subscribe to the provisions of the Federal DUI Immunity Act of 1998 that I mentioned in yesterday’s post….or at least not as to DUIs committed by heads of the Highway Patrol’s DUI Enforcement Unit. 


Former Head of UHP’s DUI Unit Ends Appeal of Alcohol-Related Conviction 

West Jordan, UT.  Mar 3  – The former commander of the Utah Highway Patrol’s DUI enforcement team on Monday pleaded guilty — for the second time — to alcohol-related reckless driving for crashing his police cruiser in 2006…

Swain crashed his cruiser into a concrete barrier on Bangerter Highway near 400 West at 2:20 a.m. on June 23, 2006…

Later, after Swain’s arrest, an intoxilyzer measured his blood-alcohol level at 0.11 percent, which exceeds Utah’s legal limit of 0.08 percent.

Hmmm…He pled guilty to reckless driving rather than to drunk driving?  With a 0.11% blood-alcohol level?  Maybe Utah has a modified version of the DUI Immunity Act.