Archive for July, 2010

Pre-Written DUI Arrest Reports: A Smoking Gun

Friday, July 9th, 2010

 Earlier this week I posted about the increasing practice of police officers in DUI investigations to write arrest reports before the arrest — in fact, before the suspect is even seen driving.  This has gotten to the point that computer templates are increasingly used: the officer simply inputs the suspect’s name, address, etc., and prints out a form DUI report with symptoms such as erratic driving, slurred speech, alcoholic breath and impaired balance already entered.

This is bad enough, as the reports are supposedly signed under oath and subject to perjury charges.  But it becomes particularly serious when you realize that very few officers can remember the details of a given case when testifying months later.  In almost all cases, the officers read their own reports before taking the stand — and then testify essentially to what they read in the report.  And in DUI cases, they are increasingly testifying based upon a fictional "xeroxed" case.

For example, California defense attorney Jon W. Woolsey got a court order requiring the California Highway Patrol to turn over any templates or forms used by the officer who arrested his client for DUI.  The following is the template that was used:


FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated.  I asked Name if he/she understood each test completely and he/she stated that he did.  All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris.  The weather was cool, clear/cloudy, and daylight/dark.    

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees.  Name’s eyes showed vertical gaze nystagmus.        


2)One leg stand:
Name lifted his/her right/left foot and dropped it immediately on the count of 1000.  

3)Romberg:Name estimated 30 seconds in 0000 seconds.  Name body swayed in a circular motion 1 to 2 inches from center of mass. 

4)Finger Count:I explained the test to Name 

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test.  I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.


Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.


First Observations:

On 0-00-07 I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer nnn.  I was traveling


Observations After Stop:
I contacted the driver and advised him/her the reason for the stop.  As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath.  I noticed that the driver had red watery eyes, as well as slow and slurred speech.  I asked the driver for his/her driver’s license, which he/she provided me.  I identified the driver using his/her CaliforniaDriver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “.”  I asked the driver to exithis/her vehicle and meet me at the right front of my patrol vehicle.  I noticed that as the driver walked he had an unsteady gate.  As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person.  I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes.  I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and askedhim/her how much he/she had to drink and he/she stated, “—-.”  I explained and demonstrated several FST’s to Name, which he/shecould not complete as explained and demonstrated.  

Arrest:
  Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle.  I placed Name under arrest for 23152 (a) CVC at 0000 hours.  I advised Name of implied consent and he/she chose theblood/breath test.  I booked Name into the Sonoma County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the Sonoma County District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____



Basically, the report tells the officer what he should have seen — not what he actually saw.   And as any honest cop will tell you, drunk driving cases rarely follow such a neat, pre-described script.  But it is convenient.  And avoids messy complications – like the actual facts.   

One size fits all.

 

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Police Writing DUI Arrest Reports…Before the Arrest

Sunday, July 4th, 2010

In recent years, there has been a growing trend among law enforcement to use pre-written arrest reports in drunk driving cases. In other words, they are writing out a batch of phony reports — including "observed" driving symptoms, slurred speech, failed field sobriety tests, admissions of drinking — and then just filling in the names, dates, etc., when they actually make an arrest.

Saves a lot of time.

In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the "facts" already entered, with blanks to fill in for name, date, etc.  And this has been going on for some time now, as the following news story from a few years ago shows:
 

DUI Suspects May Go Free Due To Questionable Arrest Reports

Orlando, FL. November 16 — 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff’s deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It’s the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates. One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it’s there whether the suspect’s blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn’t smell right," said DUI defense attorney Stu Hyman. "It’s a sad state of affairs when somebody hasn’t even committed the offense yet, but the report has already been written." 9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written. "Why is it that everyone is swaying three to five inches? Why isn’t it two to eight? Why not one to seven inches?" questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff’s office has computer DUI templates. The deputy testified, "I’ve been told people use them. I just choose not to."


None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures "xeroxed symptoms". This has been going on for a long time.  Years ago, I used to get a court order for copies of an arresting officer’s DUI reports for the previous 30 days; the symptoms often proved remarkably similar.  When the reports became an embarrassment, the Orange County (California) D.A.’s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.
 

 

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