The arresting officer's testimony will consist of observations and opinions. Unlike in many other cases, however, these two become blurred in a drunk driving case: subconsciously or otherwise, the officer is seeing and reporting incidents in terms of intoxication. A suspect will not exhibit normal nervousness, he will "fumble" through his wallet; he will not trip, he will "stagger." Thus, the qualifications of the officer become even more critical than in most criminal cases.
Before trial, of course, the defense attorney should find out everything possible about the arresting officer or officers. Counsel should be aware of the officer's strengths and special skills, if for no other reason than to avoid examination in that area. And counsel should be familiar with any potential weaknesses which can be developed on the stand. If the client is only the fifth person the officer has arrested for drunk driving, this fact and its significance should be thoroughly developed for the jury. If the officer appears uncertain about the operation of the breath-testing device used, his or her lack of training and experience in this area can be brought out in a manner that will cast doubt not only on the validity of the blood-alcohol results but upon the officer's expertise generally.
Information about the officer's qualifications must be obtained before trial. Without this information, counsel faces the dangers of violating the cardinal rule: never ask a question to which you do not already know the answer. While some of this information can be procured through formal and informal discovery procedures, counsel should not overlook the obvious course of simply asking the officer during casual conversation outside of the courtroom. Approached in a nonconfrontational manner, most officers will react in accordance with human nature — they enjoy talking about themselves as much as the next person.
The most critical area where the officer's qualifications must be carefully examined is in the prosecution on the issue of whether the client was "under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug." Where drugs are involved, relatively few traffic or patrol officers are very knowledgeable about specific symptomology. But even where alcohol intoxication is the issue, the officer's expertise should not be assumed. True, the courts generally permit even a lay witness to testify as to whether an individual was "drunk," and this has been extended to "under the influence." But this goes to the admissibility of' the opinion — not the weight. And it is the weight that the jury will give the officer's opinion that is critical.
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