Cops, like all employees, can be good, bad, or somewhere in the middle. However, it would be difficult to argue that there are many employment positions out there that require the same degree of care, competency and honesty as law enforcement. Sometimes an arresting officer is just a good person who made a bad judgement call. Other times, the officer abused their position. There are serious consequences when a police officer’s misconduct affects a DUI case. Police misconduct in DUI cases is very much real and happens more often than enforcement departments admit or that the public is aware of. In early 2019, amidst public call for police accountability, California enacted a transparency law, which essentially makes police misconduct records available to the public.
After the law was enacted, the Modesto Bee dove into newly released records and found numerous accounts of police misconduct. The documents detailed a lot of dishonesty. Of the records that the outlet uncovered, what it found as probably the most egregious misconduct, was that of an officer who had previously received commendations and public praise for his DUI enforcement efforts. Unfortunately, his elevated DUI numbers were the product of misconduct.
Footage did not match his written reports, which included that he observed signs of intoxication when none were present on the footage and relying on an “odor of alcohol” when the suspect’s BAC turned out to 0.00 percent. The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist and arrested them without probable cause.” Additionally, an internal affairs review of his record concluded that the officer’s conduct was “often rude, belittling, abrupt and arrogant.”
All too often, this type of misconduct is chalked up to as an overzealous pursuit of justice on the officers’ part. Sometimes misconduct isn’t so egregious as what the Modesto Bee’s uncovered but can just be incompetently handling cases. The Modesto Bee’s efforts are only a small glimpse into misconduct in DUI Cases. Unfortunately, misconduct is not an anomaly and virtually every department struggles to address police misconduct within. Because of transparency laws like those in California and other states, law enforcement is coming to grips with the fact that they can’t keep turning a blind eye to bad policing.
Some examples of police misconduct, include:
- Invalid Investigatory Stop: A police officer must have reasonable suspicion that a crime occurred to stop your vehicle. This means that the officer must be able to show he or she had a supported reason for stopping you other than mere suspicion. Generally speaking, traffic violations and equipment failures (i.e., a blown-out taillight), are examples of proper reasons for a stop. However, it is misconduct for an officer to stop without any reason, or, since many officers know this, to fabricate the reason for the stop in their police report.
- Invalid Arrest: Likewise, a police officer must have probable cause that a driver was DUI before they can be arrested. Probable cause means that the officer has reasonable and trustworthy facts that the driver is DUI. It is misconduct for an officer to arrest without probable cause, or, since many officers also know this, to fabricate the reasons for the arrest.
- Out-Of-Uniform, Unmarked Vehicle Stop: In some states, off-duty police officers who are neither in uniform nor in a marked vehicle cannot conduct traffic stops. In those states that prohibit out-of-uniform, unmarked police vehicle stops, doing so is misconduct and evidence obtained from such a stop can be suppressed.
- Improper Administration and Recording of Field Sobriety Tests: There are several standardized field sobriety tests that an arresting officer can use to determine the sobriety of a driver. That officer must understand and properly administer the test, as well as, properly evaluate the results in order for his conclusion regarding intoxication or impairment to be supported. Improper administration of the field sobriety test may invalidate the test and cast reasonable doubt. It should go without saying that intentional or negligent misrepresentation of the driver’s performance is also misconduct.
- Improper Administration of Breathalyzers and Blood Test: Most states require that an officer strictly follow an approved methodof administering breathalyzers and blood tests. Whether a driver is submitting to the optional pre-arrest breathalyzer test, or the required post-arrest chemical tests (that can be either a breath test or a blood test), intentional deviations or mistakes made during this process are considered misconduct and can result in suppression of the results.
- Hostile Attitude: Though certainly not always the case, some officers struggle to be civil to suspects, defendants and attorneys. Often, video footage, like those required in the type of transparency laws that California has enacted, expose the hostile attitude often taken by officers against drivers suspected of drunk driving. Often the hostile attitude is the result of the officer’s preconceived notion that the driver is drunk even though the officer has nothing to base their opinion on.
- Failure to Document: Speaking of transparency laws, there is absolutely no excuse for the lack of a video footage or other documentation of police interactions with drivers in those departments who employ it. Logic would dictate that documentation and video footage would only assist and corroborate an officer’s observation. So why is it that the footage is often left out? Sometimes, video footage that is supposed to be available isn’t because it has gone missing, exists as a corrupted digital file, or the equipment wasn’t working. Would it have corroborated what the officer wrote in his or her report, or would it have shown something else, perhaps misconduct?
Fighting for your rights does not, in and of itself, mean that you are fighting against the officer. However, if an officer fails to follow normal department protocols, whether intentionally or not, your attorney should expose the misconduct and possibly get the a DUI dismissed or at the least to persuade the prosecutor to reduce the charges or penalties.