Officer's Training and Experience

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.

Lawyer's Guide #1

Officer's Training and Experience

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.

Lawyer's Guide #2

Officer's Training and Experience

Again, however, it is the rare officer who obtains a written alphabet rather than the much more convenient (to the officer) oral recitation. And it is of interest to the jury that the officer is not only utilizing an inferior method of determining intoxication, but is the kind of officer who willfully violates stated departmental policy.

Arresting officers shall point out the convenience of location in choosing the intoxilyzer over other tests administered at Orange County Jail . . . . Don't tell the arrestee that refusal is one of his choices.

Yet, the officer will always testify that he never tried to influence the defendant in any way.

Take complete notes in the field and write your report as close in time to the arrest as possible. When nothing is written down until after the arrest or, even worse, after booking, you are very vulnerable to defense attack. ... [Emphasis in original.]

Despite this training, it is a rare officer who takes notes in the field (if they exist they should be discoverable, of course), and an even rarer one who writes the formal report before booking.

Defense attorneys do not want to go to trial . . . . Remember, that while you have different audiences in report writing, your most important audience is the defense attorney. A thousand words which do not create concrete pictures in his mind will not persuade him. A few specific descriptions, however, will send him scurrying for plea forms.

It is of considerable interest to juries that the arrest report which the officer has so often referred to for purposes of refreshing his memory is hardly an objective presentation of facts. Quite the contrary, the "most important" purpose for the report is to paint as black a picture of the suspect as possible so that the defense attorney will plead him or her guilty. Not only does this call into question the ability of the officer to accurately recall the events in question after reading such a distorted set of facts, but it should also create some real concern about the ethics involved in such a procedure.