DEFENDING DUI’s UNDER THE NEW LAW: THE NUTS & BOLTS OF DEFENDING A DUI CASE
By Stephen Hayne
Washington Association of Criminal Defense Lawyers
Cross of Cop Checklist
- REPORT
- Have made many stops before/since def.
- Purpose to make record of details
- Include everything important
- Reviewed prior to the trial
- Had to refer to it many times on direct
- Couldn’t recall many specifics without it
- Have ticketed many people before/since
- Have written many reports
- Monthly average of tickets
- Monthly average of DUI citations
- Name of person ticketed before client
- Have never been wrong
- Have sometimes mixed up facts of one case with another
- PROFESSIONAL WITNESS
- Trained how to testify at academy
- Lots of practice
- Never testified DUI defendant not under influence
- Never testified for a defendant in a DUI case
- No medical degree
- Based opinion on observations of def that night
- BIAS
- Do you drink
- Drive after drinking
- Agree not inherently unsafe
- Ever in accident involving drunk driver
- In middle of night – you look for drunk drivers
- When first noticed client, suspicious might be drunk driver
- Often see people do what client did who have had zero to drink
- DRIVING
- Sped up to catch client
- How fast did you go
- Your speed not necessarily dangerous, was it
- Client’s speed constant
- Proper lane travel
- Signaled
- Responded properly to emergency lights
- Parked safely
- No problem:
- placing car in park
- setting brake
- opening window
- producing license
- understanding requests
- undoing seat belt
- getting wallet out
- putting wallet away
- opening door
- stepping out of car
- closing door
- Didn’t appear unsteady on feet
- No problem walking to shoulder
- SETTING FST SCENE
- Parked your car at angle behind client’s
- Had client move to shoulder because traffic dangerous
- How wide was shoulder
- Gravel/guard rail at shoulder’s edge
- Traffic continued to pass in adjacent lane
- Left emergency lights on
- Left headlights on/bright
- Did client face towards or away from traffic (if toward: blinded by headlights – if away: no warning as cars whizzed by)
- Cop’s experience with FST’s:
- First performed at academy
- Hundreds of times since
- First time in middle of day
- In well-lit room
- When well-rested
- When relaxed
- No traffic whizzing by
- No traffic whizzing by
- Comfortable temperature
- Didn’t do as well first time as now
- Got better with practice
- Back to FST scene
- Middle of your work day
- Well after defendant’s normal bedtime
- Dark
- Numerous moving shadows/distractions
- Cold/wind
- At least some slope
- Gravel/debris collects on shoulder
- Don’t know how long since last swept
- Bystanders/other officers
- Chatter from police radio
- Distractions from passing cars
- What FST’s actually measure:
- Intended to measure general balance, coordination and ability to follow instructions
- Use same tests for everyone
- The tests do not vary depending on differences in:
- Age
- Physical condition
- Illness
- Fatigue
- Suitability of the FST site
- Nervousness
- Whether overweight
- Type of shoes
- Type of clothing
- Most people nervous when stopped
- Normal for people to make physical and mental mistakes when nervous
- Don’t know what was going through client’s mind during these tests
- No objective way to measure level of nervousness of client
- INDIVIDUAL TESTS
- ABC’s
- Didn’t ask when client last performed
- Don’t know if last week or in third grade
- Didn’t give client chance to practice
- Didn’t give client second chance
- Did you take notes at the scene
- Where are notes now
- RHOMBERG/BALANCE
- Looking for numerous symptoms
- Ability to understand and follow instructions
- Ability to maintain balance
- Client did:
- Put heels together
- Hold arms at side
- Tilt head back
- Close eyes
- Did not tell client not to sway
- Did not tell him to stop swaying
- Afterwards, didn’t tell him he swayed and let him try again
- Not normal to keep arms at side while balancing, is it
- FINGER TO NOSE
- Again looking for several things
- Ability to understand and follow instructions
- Ability to tough tip of nose with finger tip
- In fact, client did follow those instructions up to very end
- You didn’t give client second chance
- HEEL TO TOE
- Looking for numerous mistakes:
- Ability to understand and follow directions
- In fact, client did [list all he did correctly]
- Imaginary line
- Some people have difficulty with balance even when sober
- Didn’t allow client to practice
- Didn’t note distance between heel and toe
- So to you, ½” is same as 3”
- Unnatural to do test without raising arms
- NO BASIS FOR COMPARING CLIENT’S PERFORMANCE
- Had never met client before that night
- Have never heard or seen him:
- Speak
- Walk
- Stand
- Do balance tests
- Agree alcohol effects people differently
- Effect of alcohol can depend on:
- Amount of rest person had
- What person’s had to eat
- Individual metabolism
- Tolerance
- Drinking habits
- What a person is drinking
- Over what period of time
- You don’t know any of those things about my client
- No knowledge of what’s “normal” for client
- Odor doesn’t tell how much a person’s had to drink
- Odor doesn’t tell you whether person affected
- Watery-bloodshot eyes doesn’t mean person intoxicated
- Pupils affected by intoxication
- Normally slow to react if significant amount of alcohol in system
- Didn’t measure pupil reaction did you
- NO PROBABLE CAUSE UNTIL AFTER TEST
- Didn’t arrest until end of tests
- Must arrest when have probable cause
- PC means “reasonable grounds”
- So didn’t conclude had reasonable grounds [after each field sobriety test]
- There was still question in your own mind until very end
- MIRANDA RIGHTS UNDERSTOOD/242 RIGHTS
- Read Miranda rights to def
- Read 242 rights to jury
- Satisfied client understood
- Didn’t express any confusion
- Readily agreed to answer questions
- Readily agreed to take breath test
- Fully cooperated/did not request attorney
- NO FST’S AT STATION
- How long with client in total
- Ever out of your sight prior to breath test
- Never went to bathroom
- In no particular hurry
- Agree FST conditions much better at station
- Didn’t have client do same FST’s at station
- CONTINUOUS OBSERVATION
- Kept client under continuous observation prior to DM Required by WAC
- To make sure client doesn’t put anything in mouth or belch
- Must enter data
- Using the Keyboard
- RADIO FREQUENCE INTERFERENCE
- DM located in middle of police station
- Officers free to come in and out
- No sign warning keep walkie talkie’s off
- Police transmitter located in building
- Parking for patrol cars nearby
- Microwave
- Computers
- Copiers
- Police radios
- CONCLUSION
- Fully cooperative throughout
- Didn’t note any unusual actions
- Didn’t note any unusual statements
- Didn’t ask client why he hit fog line
- If putting in tape, etc, would have less significance than not paying attention
- Didn’t do follow up investigation per client’s explanation
- Didn’t talk to client’s witnesses
- Didn’t talk to bartender, etc
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