The Arresting Officer

In most cases, the field evidence produced by the prosecution will be in the form of testimony from one or more police officers, usually the officer or officers who arrested the defendant. In some cases, such as where the initial police contact comes from a call to the scene of an accident, lay witness testimony — often of the occupants of the car involved in the collision with the defendant's vehicle — will be offered as an integral part of the prosecution case (and, in fact, will be necessary to establishing the "driving" element of the offense). Lay witness testimony is, of course, usually given less weight by the jury; it is the testimony of the trained, experienced, and "impartial" police officer that carries weight with the triers of fact. And it is this witness that a good drunk driving lawyer must learn to deal with.

Generally speaking, the testimony of a police officer can be approached in the following steps:

  1. questioning the officer's qualifications and experience in the very limited area of drunk driving
  2. establishing his predisposition to believe the defendant guilty at initial stages of the detention and field sobriety tests
  3. suggesting innocent explanations for such incriminating observations as alcoholic breath, slurred speech or bloodshot eyes.
  4. emphasizing the observations that tend to establish the defendant's sobriety
  5. attacking the officer's observations, interrogations, and testing procedures — including procedures the officer failed to follow

California DUI lawyers must deal with each officer on an individual basis, understanding at all times the jurors' attitudes toward his questioning. Where a knock-down cross-examination of an officer under one set of circumstances may be appropriate, a very tactful and respectful approach may be more productive under another.

Arresting Officer #1

The Arresting Officer

DWI lawyers also should be fully aware of who he is dealing with on the witness stand when he takes on a police officer: a professional witness. This is not a citizen who is shaken by his first appearance on the stand, but a person who has probably been there many times before. This is a witness who has lost his awe of the courtroom, who has sparred with skilled defense attorneys on many previous occasions, and who has learned to impress the jury with his calm and polite manners while taking every opportunity during cross-examination to ram the knife deeper into the defendant. He is, in short, usually a fairly skilled adversary who should be viewed as such, the days of the "dumb cop" are rapidly passing.

Perhaps above all, counsel should recognize that in confronting the police officer he is dealing with an individual, not a clone. Each officer is different; each has his own unique beliefs, attitudes, and prejudices; each varies in his degree of intelligence, honesty, and experience. In emphasizing the effect of these individual differences on an officer's conduct in the field, a relatively recent study conducted by the National Highway Safety Administration (U.S. Department of Transportation Report #H5-801-230) found, among other things, that:

The officer's age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do their older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

The officer's personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

Arresting Officer #2

The Arresting Officer

Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate — often by a wide margin — the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood alcohol concentration. This seems to induce a tendency among officers to identify and sympathize with the suspects they encounter.

Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement — particularly in municipal departments — were found to lack this specialized training.

Specialization in duty assignment can also enhance alcohol-related enforcement. Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties...

Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests...

Weather conditions also effect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers: they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail...

The suspect's attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

Arresting Officer #3

The Arresting Officer

The suspect's race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed — the overwhelming majority of whom were white — reported releasing significantly more non-white suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with non-white drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

Suspect's age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

Suspect's sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming.

In a fascinating article entitled Psychology, Public Policy, and the Evidence for Alcohol Intoxication, American Psychologist 1070 (Oct. 1983), James W. Langenbrucher and Peter E. Nathan reported a series of experiments conducted at Rutgers University's Alcohol Behavior Research Laboratory to test the ability of social drinkers, bartenders, and police officers to estimate the sobriety of individuals. The results should be of considerable interest to any attorney representing a client charged with driving under the influence of alcohol — and may be admissible in evidence during direct or cross-examination of expert witnesses. The researchers addressed the specific issue of whether nonmedical observers can reliably judge an individual's level of intoxication.

Arresting Officer #4

The Arresting Officer

The first experiment involved the testing of lay witnesses — 49 individuals who were themselves "social" drinkers. Two men and two women were employed as subjects; for some tests no alcohol was consumed, for others varying blood-alcohol levels of intoxication were reached. In each case the subject was brought into a room and was asked to sit down where the "witnesses" were sitting. The subject was then interviewed at length to elicit a range of verbal behavior and somatic and cognitive effects. When the interview was over, the subject rose from the chair and walked out of the room — again, in full view of the observers.

The witnesses' observations resulted in the conclusion:

The assumption that social drinkers would prove to be accurate judges of the [blood-alcohol levels] of other persons was not confirmed... On only 4 of 16 occasions did a significant number of subjects correctly classify a target on a three-stage categorical index of intoxication level... If determining whether [a] man is sober or intoxicated is a matter of common observation, then our subjects apparently lacked this capacity. [Id. at 1072.]

The scientists next dealt with a type of witness with considerably more expertise in the area, 12 bartenders who were tested in the setting of a large cocktail lounge in a New Jersey hotel. The results again proved interesting:

The bartenders correctly rated a target in only one of four instances... Contrary to expectation, no relationship between years of experience as a bartender and [blood-alcohol level] estimation accuracy was found. These data suggest strongly that these bartenders did not possess and had not acquired special knowledge or skill in identifying intoxicated persons. [Id. at 1074.]

Accordion Section #5

The Arresting Officer

Finally, the psychologists proceeded to test 30 law enforcement officers from various New Jersey agencies. Of these, 15 were tested under conditions similar to those in the first experiment; another 15 were tested under conditions commonly encountered in a DUI traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of field sobriety tests. The results: "When police observers in the laboratory condition were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found... Officers in the arrest analogue condition were somewhat more accurate than their colleagues in the laboratory condition but not significantly so." Id. at 1076.

The scientists then concluded that "the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders, and police officers — correctly judged targets' levels of intoxication only 25 percent of the time.” Ibid.

In cross-examination of the police officer, as in all phases of trial, preparation represents the key to success. Besides learning the background and training of the officer; counsel should obtain all reports, statements, and transcripts relevant to the case, particularly if they involve the officer in question. California DWI attorneys should visit the scene of the arrest and determine the lighting conditions at the time, and he should note the distances involved, location of obstructions, etc. This not only permits more effective on-your-feet cross-examination but enhances counsel's own credibility in the eyes of the jury.

Counsel should try to interview the officer in advance of trial. If depositions are permitted, one should be taken; if not, informal questioning may he a possibility if handled tactfully. (But see § 13.0.1.)

Accordion Section #6

The Arresting Officer

Police officers usually have little independent recollection of the events in a given drunk driving investigation, relying heavily on memorization and periodic reference to their arrest report. This lack of memory should be clearly developed for the jury.

If a California DUI lawyer has the opportunity to examine the officer at an administrative license suspension hearing, he should ask if the report was reviewed prior to testimony and then make clear on the record every time the officer needs to "refresh his recollection" by reading the report. With sufficiently detailed cross-examination, the officer will repeatedly have to acknowledge that he cannot remember. He can then be confronted with this earlier inability to recall when he testifies later at trial with seemingly perfect recollection.

If the officer has to repeatedly refer to his report in his testimony in trial, counsel should move to have his entire testimony stricken on the grounds that he has no independent recollection. Using documents to refresh a witness's recollection is, of course, permitted under the rules of evidence — assuming that there is an existing memory. If it becomes apparent that the witness is not testifying from refreshed memory, but is merely regurgitating the report, then the testimony is inadmissible.

Finally, counsel should attempt to have the trial court require police witnesses to testify in civilian clothing. The authoritarian or other effect of a police uniform on some jurors can be substantial.