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In many cases, the prosecution will not even lay a foundation of training and experience before going into questions concerning the defendant's condition — unless the officer's qualifications are especially noteworthy. If no such foundational questioning takes place, defense counsel should immediately see a red flag. The prosecutor may well be avoiding the subject because the officer is a "rookie" or relatively inexperienced in this field. It is also possible that a very clever prosecutor is setting the defense attorney up for a very embarrassing cross-examination as to the qualifications of an exceptionally experienced officer. Again, the background of the arresting officer should be investigated before trial.
In addition to the normal areas of inquiry such as academy training, numbers of DUI arrests, and field training, the officer can be asked questions of a type normally directed to experts in any field. The officer is, after all, being held up as an expert, and it is largely his or her opinions upon which the jury will render a verdict. Thus, the officer should be asked whether he or she has read specific texts or articles recognized in the area, what courses in physiology biochemistry the officer has taken, what experiments in human reaction under various levels of intoxication the officer has performed or observed, how many times the officer has qualified in court as an expert on the biochemical effects of alcohol or drugs on the human body, and so on. While this will not keep the officer's opinion out, it will take the shine off of it.
As a part of formal discovery procedures, counsel should attempt to obtain any training manuals or materials used by the law enforcement agency. It is surprising what some of these manuals state, written as they are in the belief that they will be confidential. And, properly presented during cross-examination, juries find them fascinating. Consider, for example, the following excerpts from a series of "training bulletins" issued to its officers in 1985 by the City of Irvine (California) Police Department:
Field Sobriety Tests . . . . Here the focus should not be on whether the suspect passes or fails. Avoid such categories since there are no predetermined criteria for passing or failing.
Yet, in the majority of DUI cases the officer will testify that the defendant "failed" the "walk-the-line," "finger-to-nose," or other tests.
Always try to obtain a written alphabet. Oral alphabets are of relatively little value, since the credibility of the officer is in issue. In the event of a refusal the alphabet card may well be the only independent evidence we have to determine the degree of intoxication.
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