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?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 California Driver’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 exit his/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 asked him/her ?how much? he/she ?had to drink and? he/she ?stated, “ —- .” ?? I explained and demonstrated several FST’s to? Name , which? he/she could 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 the blood/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. ?

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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How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation 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 I told him to? How many steps out? How did he turn? How many steps back? Which of the 18 steps were off the line? Where did they land? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test? ?Etc. 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 it look like? How many times was it given? Did “onset” of nystagmus occur before 45 degrees? At what degree? Was the white of the eye visible at the extreme range of the eye? Was there “distinct nystagmus” at this extreme? And what about all these observations in the left eye? And maybe two or three other field sobriety tests: Rhomberg (” modified position of attention”), one-leg-stand , finger-to-nose , reverse count, or others. 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 breath 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. 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 “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. What about the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details? Second, how can the officer recall 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. ?He can’t simply testify by reading his report. But here the law permits him an “out”: He is permitted to “refresh his recollection” by reading the report after he is asked a question. Then he can testify with a newly “refreshed” independent memory. ?In reality, of course, he is simply testifying to what is 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 or his speech not slurred. In other words, in trial the officer 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, there is no way for him to “refresh his memory” about things — things pointing to innocence — 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. ?

When the police administer a breathalyzer, the suspect’s breath sample is analyzed — and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in? California v. Trombetta ruled that there is no right to this. (See ” Why Do Police Destroy the Evidence in DUI Cases ?”.) Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California’s Vehicle Code Section 23614 is an example: (a) ….a person who chooses to submit to a breath test? shall? be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later… (b) The person? shall ?also be advised that, because no breath sample is retained, the person? will ?be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample? shall ?be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added] Sounds fair. Except officers don’t like handling a suspect’s urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is routinely checked off — and ignored.) So what can a defendant do if this legal right is violated? Well, the statute clearly says ” shall” ?advise and collect: it is mandatory, not optional. It would seem to follow that there would be some legal sanction for a willful refusal to follow this law. ?Under Miranda , for example, a failure to advise a suspect of his rights results in the suppression of any statements. ?Thus, the only meaningful remedy would be suppression of the breath test. Wrong. Remember: This is a DUI case we’re dealing with. If you look closely, another little provision at the end of California’s statute adds the following: (d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested. Cute, no? The law gives you a “right”, and then makes it unenforceable. It is, as we lawyers say, “a right without a remedy”. And, of course, since there are no consequences for ignoring this advisement of the right to an independent test, most officers continue to ignore the law. Practically speaking, then, officers do not have to follow the law and advise the suspect of his right to an independent test. There are some court decisions, however, which seem to say that? interfering ?with attempts by the arrested person to have blood drawn may be grounds for suppression of the breath test. See, e.g.,? In re Martin , 58 Cal.2d 509. And many states will suppress breath test results if the police refuse to permit the suspect to obtain a blood sample. In? State v. George , 754 P.2d 460, for example, the Kansas court ruled that breath results should have been suppressed where the arresting officer refused a suspect’s request for an independent test because of the time required to transport him to a hospital and find a physician. Yet another example of ” The DUI Exception to the Constitution “. ? ?

We learned the suspect has 4 prior drunk driving offenses. He was arrested and taken to the hospital for neck injuries. See all stories on this topic

The arrest of a Heartland woman on suspicion of driving under the influence was an easy call for Omaha Police. Officers say the suspect drew attention to …

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