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The Arresting Officer

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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.