A Prosecutor

1
A Prosecutors Perspective On Traffic Cases

• Kitsap County Chief DPA Jeffrey J. Jahns

2
Topic 1SFST FST Admissibility
3
Kitsap Defense Challenge to SFST and FST
Admissibility

• Kitsap County District Court ruled en banc on
  April 25, 2007 that
• (1) SFSTs and FSTs are admissible in prosecutors
  case,
• (2) Defense may cross examine officer concerning
  any discrepancies from training manual(s) in how
  officer administered a test, and
• (3) The jury will decide what weight to give the
  officers opinion of the defendants SFST and FST
  performance, and the impact of any training
  manual discrepancies in administration of the
  tests
• State v. Shines, et al., Kitsap County District
  Court No. 16802901
• 12 consolidated DUI defendants
• Port Orchard v. Jason Bricks, No. 11408403,
  pending
• Motion to suppress SFSTs and FSTs will be coming
  to your court!

4
Kitsap En Banc Hearing

• All four Kitsap District Court judges attended
  hearing
• Hearing conducted March 19-22, 2007
• Prosecutor briefing-160 pages plus attachments
• Defense briefing-110 pages plus attachments
• Prosecutor paid for court reporter and 554 page
  transcript
• Previous testimony by officer
• Defense witnesses
• Dr. Joseph Citron, MD, Ophthalmologist and NHTSA
  SFST instructor, Georgia
• Michael Hlastala, PhD, UW professor of
  physiology/biophysics
• Robert La Pier, former Idaho police officer,
  NHTSA SFST instructor
• Hundreds of pages of exhibits

5
Why Challenge SFSTs FSTs?

• Washington DUI defense bar very organized
• Washington DUI laws are tough!
• Perhaps only capital punishment defense bar more
  organized
• For over a decade, DUI defense has focused on
  trying to suppress breath test results
• RCW 46.61.506(4) amended June 10, 2004
• Statute greatly streamlined breath test
  admissibility requirements
• Fircrest v. Jensen, 158 Wn.2d 384 (Oct. 5, 2006).
  Supreme Court approved constitutionality of RCW
  46.61.506(4). Huge win!
• Breath test results are coming into evidence!
• Since breath tests are finally admissible,
  defense forced to actually start trying DUI
  cases
• Defense recognizes SFSTs and FSTs hurt
  defendants chances
• So, better challenge the evidence and try to keep
  it from juries

6
What Is This All About-101 Level?

• NHTSA DWI Detection and Standardized Field
  Sobriety Testing Student Manual
• Session (Chapter) VIII-Concepts and Principles of
  the Standardized Field Sobriety Tests
• Very specific procedures
• HGN pages VIII-6 through VIII-8
• Walk and Turn pages VIII-9 through 11
• One Leg Stand pages VIII-12 through 14
• Defense argues that any deviation from manual
  compromises tests scientific validity, and
• Concludes that test must not be admitted into
  evidence

7
NHTSA Manual Page VIII-19

• The Defenses proof in support of keeping SFST
  evidence from the jury, page VIII-19
• IT IS NECESSARY TO EMPHASIZE THIS VALIDATION
  APPLIES ONLY WHEN
• THE TESTS ARE ADMINISTERED IN THE PRESCRIBED,
  STANDARDIZED MANNER
• THE STANDARDIZED CLUES ARE USED TO ASSESS THE
  SUSPECTS PERFORMANCE
• THE STANDARDIZED CRITERIA ARE EMPLOYED TO
  INTERPRET THAT PERFORMANCE.
• IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY
  TEST ELEMENTS IS CHANGED, THE VALIDITY IS
  COMPROMISED.

8
What Does Page VIII-19 Mean?

• The Defense equates scientific validity with
  admissibility
• But what exactly did NHTSA validate?
• Mid-1970s, NHTSA determined that way too many
  over .10 BAC drivers were being let go by
  officers
• Why? Conditioned drinkers could perform
  relatively well on psychomotor skill tests.
• NHTSA concluded that officers needed some way to
  reliably predict BAC level based upon field tests
• So, in 1977 NHTSA looked at 16 FSTs towards the
  goal of developing a battery of tests to predict
  BACs
• 16 way too many, so NHTSA reduced the number to
  6, and eventually to 3HGN, WAT, OLS

9
The Scientific Method

• The scientific method demands creating a
  hypothesis, conducting a series of experiments to
  test the hypothesis (all conducted in the same
  manner), and then analyzing the results
• Obviously, the 3 chosen SFSTs would have to be
  conducted in the same manner to test the
  officers ability to predict .10 or higher BAC
  levels
• NHTSA developed a standardized protocol for
  administering SFSTs so that they could be
  scientifically studied
• Many studies done over the next decade
• Results clearOfficers had high degree of
  accuracy in making roadside decisions to arrest
  or release subject based upon SFST performance
• In practice, many more over BAC limit suspects
  are arrested

10
SFSTs Are Really Accurate Predictors of 0.12 BACs

• Defense witness Michael Hlastala helped the
  prosecution
• Hlastala examined the NHTSA 1998 California study
• Using the 1998 data, Hlastala concluded that
  SFSTs were 100 accurate at predicting 0.08 or
  higher BAC levels when the reading was 0.12 or
  higher
• Hlastala also concluded that SFSTs were much less
  accurate when predicting BACs below 0.12
• However, Hlastala admitted that the 1998 study
  relied solely on the BAC level obtained some time
  after driving and did not use retrograde
  extrapolation, nor did the study consider a
  suspects use of drugs or BAC refusal

11
But Be Careful With Science

• NHTSA has successfully shown that SFSTs are
  scientifically valid in predicting over limit BAC
  levels, but
• All NHTSA studies use the word impairment to
  mean over limit BAC levels.
• Two ways to prove alcohol DUI in Washington
• Alcohol concentration .08 or more within 2 hours
  of driving, OR
• At the time of driving, suspect was under the
  influence of or affected by intoxicating liquor
• NHTSA did not study FSTs and whether a suspect
  was under the influence, i.e. whether the
  suspects ability to drive a motor vehicle is
  lessened in any appreciable degree
• Defense witness Michael Hlastala testified on
  cross examination that it would be virtually
  impossible to develop a standardized methodology
  to scientifically test such an imprecise standard

12
What Was Really Validated?

• NHTSA validated the use of SFSTs in assisting
  officers in determining probable cause to arrest
  for over limit BACs
• NHTSA did not study the use of SFSTs, or any
  other FST, in determining whether the suspect was
  under the influence beyond a reasonable doubt
• NHTSA did not study the impact of deviation from
  its SFST administration protocol
• E.g. 8 steps instead of 9 on walk and turn, or
• Stimulus 16 inches instead of 12 to 15 inches on
  HGN, or
• Telling the subject to raise foot 5 inches
  instead of six, or to point toe instead of
  keeping the foot parallel to the ground on the
  one leg stand

13
SFST Deviation Goes To Weight, Not Admissibility

• The prosecution is not required to prove the
  scientific validity of its evidence
• Defense confuses the reason for NHTSAs
  scientific studies to establish probable cause to
  arrest with the evidence rules
• The prosecution is not trying to admit SFST
  evidence to prove the defendant had an alcohol
  concentration of 0.08 or higher
• Case law clearly would not permit such
  testimony/prediction. Only a breath test result
  obtained from a DataMaster or DataMaster CDM is
  admissible in Washington.
• The prosecution is seeking to admit SFST evidence
  to prove the defendant was under the influence
  beyond a reasonable doubt
• A defendants physical condition is a critical
  element of DUI, including FSTs, other tests,
  observations, odor, balance, driving, etc. State
  v. Donohue, 105 Wn.App. 67 (Div. 2 2001).

14
NHTSA Recognized That SFST Deviation Will Occur

• The Preface to NHTSAs Student Manual says
• The procedures outlined in this manual describe
  how the Standardized Field Sobriety Tests (SFSTs)
  are to be administered under ideal conditions. We
  recognize that the SFSTs will not always be
  administered under ideal conditions in the field,
  because such conditions will not always exist.
  Even when administered under less than ideal
  conditions, they will generally serve as valid
  and useful indicators of impairment. Slight
  variations from the ideal, i.e. the inability to
  find a perfectly smooth surface at roadside, may
  have some affect on the evidentiary weight given
  to the results. However, this does not
  necessarily make the SFSTs invalid.

15
The Bottom Line On WAT OLS

• If the NHTSA Student Manual, Session VIII, is
  followed, SFST evidence is admissible
• If an officer deviates from the Student Manual
  when administering SFSTs
• The SFSTs are still admissible, but
• The defense may force a 3 day hearing with
  hundreds of pages of prosecutor briefing
  necessary
• The defense will cross examine the officer about
  the deviations, forcing the prosecutor to try to
  convince the jury that the officers opinion of
  intoxication based on the improperly administered
  SFSTs is still valid
• The more deviation, the worse it will be for the
  officer and the less likely a defendant will be
  convicted of DUI
• The defense will argueHad the officer bothered
  to follow the training manual, my client might
  well have passed the test. That is a reasonable
  doubt, ladies and gentleman. We will never know
  because the officer did not do it right.

16
The Bottom Line On HGN

• Unlike the WAT and OLS where anyone can observe a
  defendants performance and conclude sober or
  intoxicated, HGN requires specialized knowledge,
  training and experience to interpret
• Lack of smooth pursuit
• Distinct and sustained nystagmus at maximum
  deviation, and
• Onset of nystagmus prior to 45 degrees
• Courts will remain reluctant to admit HGN
  evidence when an officer deviates from the NHTSA
  Student Manual
• HGN is scientific evidence, so an officer needs
  to administer the test in accordance with NHTSA
  scientifically validated protocols

17
More Thoughts About FSTs

• NHTSA does not certify or approve SFSTs
• Training is done by law enforcement agencies.
  Officer may get a certificate showing a class was
  attended, but NHTSA does not certify anything.
• FSTs show sobriety, and officer should testify
  that FSTs have been used to release a sober
  driver
• Officer should include this fact in the officers
  narrative report

18
SFSTs Are Not Enough!

• Officers should administer more than just SFSTs
• SFSTs were created to develop PC to arrest for
  over limit BACs.
• All FSTs, including SFSTs, are persuasive
  evidence towards showing beyond a reasonable
  doubt that the suspect was under the influence
• Why limit the evidence to SFSTs?
• Officer should administer the alphabet, balance,
  finger dexterity and finger to nose supplemental
  tests on the WSP DUI Arrest Report Sobriety Tests
  at page 5
• Especially the alphabet. It is very difficult for
  the defense to explain the poor results
  (especially if the officer asks about the
  defendants education).
• An officers job is to gather evidence. Limiting
  the gathering to SFSTs is a mistake
• The defense will surely ask the officer why these
  other tests were not performed, and ask the
  officer whether it is possible the defendant
  could have passed the unperformed tests

19
Obviously Intoxicated

• Case law permits an officer to testify that based
  upon the officers training, experience, and
  observations, including a defendants SFST and
  FST performance,
• The defendant was obviously intoxicated.
• The defendant could not drive a vehicle in a
  safe manner.
• The defendant had too much to drink to drive,
  and was under the influence.
• I felt the defendant was obviously intoxicated.
• See State v. Heatley, 70 Wn.App. 573 (Div. 1
  1993), and State v. Lewellyn, 78 Wn.App. 788
  (Div. 3 1995).
• Officer should include such statements in the
  officers narrative report when applicable

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Topic 2A Traffic Stop Primer 2007
21
A Traffic Stop Primer August 2007

• Co-author Pamela Loginsky, staff attorney for the
  Washington Association of Prosecuting Attorneys
• A 48-page cheat sheet of traffic stop law
• Terry detentions
• Custodial warrantless arrests
• Warrantless searches incident to lawful custodial
  arrest
• Plain view warrantless searches
• Open view warrantless searches
• Impound and inventory warrantless searches
• Mendez passenger control checklist
• Terry stop and search checklist

22
Terry Traffic Infraction Stop PC Is Not
Required To Stop

• Officers only need Terry reasonable suspicion,
  not probable cause, to stop a vehicle in order to
  investigate whether a driver committed a traffic
  infraction or other traffic offense
• State v. Duncan, 146 Wn.2d 166 (2002)
• Older cases often cited by defense saying
  probable cause is required do not survive Duncan
• Why does this matter?
• Prosecutors do not need to prove the infraction
  occurred to justify the stop
• E.g. For a radar speed stop ending up in a DUI
  charge, prosecutors do not need radar
  certificate/testimony to prove speeding
  infraction occurred, only that officer relied on
  radar and had a reasonable suspicion based upon
  training/experience that speeding occurred.
• Officers do need PC, however, to issue a traffic
  infraction.
• State v. Cole, 73 Wn.App. 844 (Div. 3 1994)

23
Cracked Windshield

• A vehicle may be sopped if a windshield is
  cracked and is in such an unsafe condition as to
  endanger any person
• State v. Wayman-Burks, 114 Wn.App. 109 (Div. 3
  2002)
• But, to justify the stop, officer better
  carefully document why the cracked windshield is
  so unsafe as to endanger someone

24
Recognize Suspended Driver

• A vehicle may be stopped when an officer
  recognizes the driver as someone whose license is
  suspended
• State v. Marcum, 116 Wn.App. 526 (Div. 3 2003) (4
  day old information that drivers license was
  suspended based on previous stop of defendant
  sufficient basis to subsequently stop driver)
• 4 days based on previous stop OK. How about 7?
  30? Tough to predict.
• Must document previous contact, and document that
  officer recognized the driver (not only vehicle)
• Contact DOL for current license status before
  stop and avoid entire issue

25
Weaving Within Lane

• A Terry stop may not be made of a vehicle that
  weaves within the drivers lane of travel unless
• The weaving is observed over a lengthy period of
  time and occurs repeatedly, or
• The officer identifies some additional conduct
  associated with drunk drivers based on training
  and experience
• No direct Washington cases
• Other state/federal cases put a high burden on
  the officer to explain reason for stop
• Without more, weaving within lane is not a
  traffic offense

26
Crossing Fog Line or Center Line

• A Terry stop may not be made of a vehicle that
  crosses the fog line or center line unless..
• The crossing is pronounced, and
• Is observed over a lengthy period of time, and
• Occurs repeatedly
• No direct Washington cases
• If center line crossed, and on-coming traffic,
  stop should be OK because of the danger of a
  head-on crash
• If no on-coming traffic, see above

27
Failure To Transfer Title

• A Terry stop may not be made of a vehicle to
  investigate a misdemeanor failure to transfer
  title offense, RCW 46.12.101(6), unless
• The stop is made on the 46th day after the
  vehicle was sold
• State v. Walker, 129 Wn.App. 572 (Div. 3 2005)
• State v. Green, 150 Wn.2d 740 (2004) (RCW
  46.12.101(6) is not a continuing offense, so
  violation only occurs on day 46 after vehicle
  sold)
• Must document exact date of sale in report, and
  count 46 days later
• Not an infraction for first 45 days, or day 47 or
  later
• RCW 46.12.101 mandates increased penalties the
  buyer/owner must pay, but those penalties are not
  defined as infractions justifying a stop of the
  vehicle

28
Private Property Traffic Infractions

• Washingtons traffic infraction statutes in Title
  46 RCW generally only apply to actions taken on
  public roadways
• See RCW 46.04 for definitions of highway and
  roadway
• State v. Brown, 119 Wn.App. 483 (Div. 2 2003)
  (RCW 46.61.305(1)s requirement to signal before
  turning does not apply to private property)
• One notable exception is parking in a disabled
  parking space without a permit
• RCW 46.16.381(9)

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Private Property Traffic Crimes

• Some criminal traffic offenses may be committed
  anywhere in the state, while others only on
  public roadways
• Officers should take care when contacting a
  suspect believed to have committed a criminal
  traffic offense on private property to verify
  that the criminal statute applies to private
  property actions
• Private property traffic crimes which may be
  prosecuted include
• Reckless driving, RCW 46.61.500
• First degree negligent driving, RCW 46.61.5249
• Driving while license suspended, RCW 46.61.342(1)
• Minor driving after consuming, RCW 46.61.503
• DUI and physical control, RCW 46.61.502,
  46.61.504
• But see State v. Day, 96 Wn.2d 646 (1981) (DUI
  statute does not apply to intoxicated driver
  rapidly driving in circles in private field owned
  by parents where driver not on or near a public
  road and public had no right to be in field)

30
Questioning Unrelated To Reason For Traffic Stop
- Art. 1, 7

• Washington const. art. 1, 7 prohibits questions
  unrelated to the reason for a traffic stop
  unless
• The officer has an independent lawful basis for
  the questioning
• State v. Allen, 138 Wn.App. 463 (Div. 2 2007)
• Asking for drivers license, vehicle registration
  and insurance to verify identity, drivers
  license status, and check for outstanding
  warrants is OK
• Officer must document in report the information
  known prior to the unrelated questioning which
  justified the unrelated questions
• Terry reasonable suspicion standard
• Failure to do so will result in evidence
  suppression!!!

31
Questioning Unrelated To Reason For Traffic Stop
4th Amendment

• The Fourth Amendment permits questioning
  unrelated to the reason for a traffic stop so
  long as
• The duration of the detention is not prolonged
• United States v. Mendez, 476 F.3d 1077 (9th Cir.
  2007)
• Washingtons constitution provides greater
  individual privacy protection than the federal
  constitution
• So, the 4th Amendment and United States v. Mendez
  do not apply in Washington

32
Lying To An Officer

• When a Terry detainee provides a false name,
  false date of birth, false address, or says he
  had no alcohol to drink (yet is clearly
  intoxicated)
• Always consider the gross misdemeanor crime of
  false statement to public servant, RCW 9A.76.175
• Report must include discussion why the
  information is reasonably likely to be relied
  upon by a public servant
• State v. Godsey, 131 Wn.App. 278 (Div. 3 200)
• False statement is a crime of dishonesty under
  Evidence Rule 609(a), which means a jury will
  hear about a false statement conviction the next
  time (and every time) the defendant testifies in
  court
• Obstructing a law enforcement officer, RCW
  9A.76.020, only applies to a suspects actions,
  not words
• State v. Spartacus Williamson, 84 Wn.App. 37
  (Div. 2 1996)
• Obstructing is not a crime of dishonesty

33
Pretext Traffic Stops Prohibited In Washington -
Art. 1, 7

• Officers may not use Washingtons traffic laws as
  a pretext for stopping a vehicle for other
  investigative purposes
• State v. Ladson, 138 Wn.2d 343 (1999)
• Lacey officer and Thurston County detective on
  proactive gang patrol did not make routine
  traffic stops but did use traffic infractions as
  a means to pull people over to initiate contact
  and questioning
• Stopped driver and Ladson (passenger) after
  following vehicle for awhile based upon 5 day old
  expired tabs
• Officers aware that driver rumored to be
  involved in drug dealing. Found drugs, and
  arrested driver and Ladson.
• Held that the existence of an objective traffic
  law violation may not be used as a pretext for
  stopping vehicle for other investigative purposes

34
Traffic Stop By Officer On Duty To Enforce
Traffic Laws Not Pretextual

• Much pretextual litigation has occurred since
  Ladson
• Cases are clear that traffic emphasis patrols and
  enforcement of traffic laws by officer in the
  normal course of officers duties are not
  pretextual unless
• There is evidence that the officer was engaged in
  gang, drug, or another specific kind of
  investigation rather than on routine patrol
• State v. Nichols, 162 P.3d 1122 (S.Ct. July 19,
  2007)
• Officers knowledge or belief that drug
  transaction might have occurred does not make
  traffic stop pretextual if officer is on traffic
  patrol and the officers actions upon stopping
  the vehicle are consistent with actions generally
  taken by patrol officer
• State v. Hoang, 101 Wn.App. 732 (Div. 1 2000)

35
Opening Containers Seized During Terry Frisk For
Weapons

• An officer lacks a lawful basis to open a
  cigarette package seized from a passenger during
  a Terry pat-down weapons frisk
• State v. Horton, 136 Wn.App. 29 (Div. 3 2006)
• Opening a cigarette package not justified once
  officer determines the package is not a weapon
• Officer may withdraw an object from a suspect if
  the object feels like it might be a weapon
• But officer may not open object unless officer
  documents particularized circumstances in support
  of belief that suspect had weapon in package
• Generalized belief package could contain a
  razor blade or other weapon not enough absent
  explanation why detainee might have and use such
  weapons
• Officer can be protected by tossing the pack out
  of reach

36
How Broad Is Horton?

• We interpret Horton as restricting officers from
  opening any container during a Terry weapons
  frisk that is only large enough to hold a
  miniature weapon
• Horton does not overrule other cases that permit
  officers to open containers that are large enough
  to contain a full-size or small weapon
• But officers must document the reasons for
  opening any container seized during a Terry
  weapons frisk
• Washington appellate courts will likely take
  years to clarify the parameters of Horton

37
Possession Of Drug Paraphernalia Is Not A State
Crime

• Mere possession of drug paraphernalia does not
  provide probable cause for arrest under state law
  because possession of drug paraphernalia is not a
  crime under RCW 69.50.412(1)
• The statute requires evidence that the drug
  paraphernalia was used to plant, propagate,
  cultivate, grow, harvest, manufacture, compound,
  convert, produce, process, prepare, test,
  analyze, pace, repack, store, contain, conceal,
  inject, ingest, inhale, or otherwise introduce
  into the human body a controlled substance.
• State v. ONeill, 148 Wn.2d 564 (2003)

38
What Is Needed For Use Of Drug Paraphernalia?

• Officer must document the specific controlled
  substance
• Green leafy vegetable matter is not enough
  because green vegetable matter is not a
  controlled substance
• If it is marijuana, officer must say so
• Officer must explain how officer came to
  conclusion the substance was controlled
• Training, experience, on-site drug test, etc.
• The presence of drug residue may provide PC to
  arrest
• If the officer documents the specific controlled
  substance and how the officer knows the residue
  is a controlled substance

39
Possession Of Drug Paraphernalia City Ordinances?

• Some cities have local ordinances making
  possession of drug paraphernalia a crime
• We have concern about the constitutionality of
  such an ordinance when the definition of
  paraphernalia is broad enough to cover pretty
  much everything
• Due process vagueness principles
• arbitrary enforcement by law enforcement, or
• public unable to determine what is permitted and
  prohibited by ordinance
• Speak with your city attorney

40
A Prosecutors Perspective On Traffic Cases

• Kitsap County Chief DPA Jeffrey J. Jahns

41
Topic 3DUI Arrest Reports
42
Thorough Factual Investigation

• RCW 9.94A.411(2)(b)(i) discusses the requirement
  for a thorough factual investigation before a
  prosecutor makes a charging decision
• A prosecuting attorney is dependent upon
  law enforcement agencies to conduct the necessary
  factual investigation which must precede the
  decision to prosecute. The prosecuting attorney
  shall ensure that a thorough factual
  investigation has been conducted before a
  decision to prosecute is made. In ordinary
  circumstances the investigation should include
  the following
• (a) The interviewing of all material
  witnesses, together with the obtaining of written
  statements whenever possible
• (b) The completion of necessary laboratory
  tests and
• (c) The obtaining, in accordance with
  constitutional requirements, of the suspects
  version of the events.

43
Follow-up Investigation

• RCW 9.94A.411(2)(b)(i) continues with a
  requirement for follow-up investigation
• If the initial investigation is incomplete,
  a prosecuting attorney should insist upon further
  investigation before a decision to prosecute is
  made, and specify what the investigation needs
  to include.

44
Exceptions

• RCW 9.94A.411(2)(b)(ii) discusses exceptions to
  the thorough factual investigation standard
• In certain situations, a prosecuting
  attorney may authorize filing of a criminal
  complaint before the investigation is complete
  if
• (a) Probable cause exists to believe the
  suspect is guilty
• (b) The suspect presents a danger to the
  community or is likely to flee if not
  apprehended or
• (c) The arrest of the suspect is necessary
  to complete the investigation of the crime.
• In the event that the exception to the
  standard is applied, the prosecuting attorney
  shall obtain a commitment from the law
  enforcement agency involved to complete the
  investigation in a timely manner. If the
  subsequent investigation does not produce
  sufficient evidence to meet the normal charging
  standard, the complaint should be dismissed.

45
Why A Thorough Police Report?

• A thorough and well-written police report has
  many effective uses
• Documents what occurred to help refresh officers
  memory at a perhaps much later court hearing
• Provides PC in support of the filing of each
  criminal charge
• Provides info to prosecutor to assist in
  assessing aggravating and mitigating
  circumstances in support of plea offer
• Permits a court to find PC in support of the
  charge(s), and to set bail
• Provides info to defense attorney to convince
  client to plead guilty
• Provides info to defendant to convince defendant
  he/she is guilty
• Provides info to court to assist in imposing
  proper sentence
• Provides info to probation to assist in proper
  monitoring of defendant
• Provides info to treatment providers to assist in
  proper treatment of defendant

46
Convincing The Defense Attorney?

• A defense attorney who believes the evidence will
  convict a client has no reason to reject a plea
  offer and go to trial, because
• The risk of conviction is high
• The defendant if convicted will probably receive
  a sentence with more jail than the initial plea
  offer
• Defense attorneys have enough work to do without
  going through suppression or dismissal hearings
  with no hope of success
• Defense attorneys respect a well-written and
  detailed report because it is difficult to
  convince a jury that the officer is biased, or
  lazy, or incompetent, or unfair to the defendant
• Especially when the officer lists items favorable
  to the defendant (the defendant was cooperative),
  but concludes for example that the defendant was
  obviously too intoxicated to drive
• A prosecutors argument to the jury The officer
  was unfair to the defendant? Why then list items
  to help the defendants case? The officer was
  professional and unbiased. You should believe the
  officers conclusion that the defendant was
  intoxicated.
• No attorney likes to lose!

47
New Prosecutors

• District and Municipal Court prosecutors are
  typically the newest and least experienced
  prosecutors in the office
• The DUI defense bar is often very experienced,
  and files lengthy and complicated DUI motions
• These new prosecutors have huge caseloads, and
  should not go to bat for an officer who refuses
  to provide the prosecutor with good work product
• Why should I as a supervising prosecutor
  support shoddy police work?
• It is much easier to triage poorly handled cases,
  and work hard on the cases where the officer also
  worked hard
• Prosecutors, like the defense and courts, know
  who are the good and bad officers

48
What Does An Officer Never Going To Court Really
Mean?

• Does an officer never going to court mean the
  reports are so well written that
• The defendants all plead guilty because the
  defense attorney believes the case is a lost
  cause?
• Or does it mean that the officer provides shoddy
  work product and
• The cases are all compromised by the prosecutor?
• Or does it mean that the prosecutor is SOT
  (scared of trial), is not following office plea
  negotiation standards and is improperly
  compromising cases?
• A supervising prosecutor should be constantly
  monitoring new prosecutors for SOT
• If the new prosecutor is taking cases to jury
  trial, then an officer never going to court is
  option 1 or 2 above

49
Two Ways To Prove Alcohol DUI

• RCW 46.61.502 (DUI) and RCW 46.61.504 (physical
  control) provide two different methods of proving
  the crime
• Within 2 hours of driving/physical control, the
  person had an alcohol concentration of 0.08 or
  higher as shown by an accurate and reliable test
  of the persons breath/blood, or
• At the time of driving, the person was under the
  influence of or affected by intoxicating liquor
• In breath test cases, prosecutors typically
  submit evidence to cover both methods
• In refusal cases, prosecutors obviously do not
  have a breath test so the under the influence
  method is the only option

50
Definition Of Under The Influence

• A person is under the influence of or affected
  by the use of intoxicating liquor if the persons
  ability to drive a motor vehicle is lessened in
  any appreciable degree.
• Washington Pattern Jury Instructions Criminal
  92.10
• An officers opinion of intoxication must focus
  on why the defendants ability to drive was
  lessened in any appreciable degree
• The officers report must document why the
  officer came to that opinion
• How was the defendants driving ability lessened
  when compared to a sober driver?

51
The WSP DUI Arrest Forms

• DUIs require a whole lot of paperwork by the
  officer for reasons already discussed
• The WSP DUI Arrest Forms have been developed by
  the WSP in conjunction with
• The Washington Association of Prosecuting
  Attorneys, and
• The Department of Licensing
• The categories and boxes are all there for a
  reason
• If an officer skips over the DUI paperwork, the
  defense will chew up the officer on the stand
• Every inadvertently forgotten checkbox will be
  highlighted by the defense to the jury
• And places the prosecution on defense by having
  to explain why the officer did not complete the
  forms correctly
• Lets keep the prosecution on offense!!!

52
The WSP DUI Arrest Forms Cond

• Please use the WSP DUI Arrest Forms!
• The forms are at http//breathtest.wsp.wa.gov/dui
  .htm
• The forms are available in English and Spanish
• Yes they are lengthy and complicated
• Cutting corners will only give the DUI defense
  bar ammunition to obtain a less-than-favorable
  result

53
Defendant Was Impaired

• Pre-arrest observations, question 8 on page 4
  asks for the officers opinion of impairment due
  to the use of alcohol or drugs
• Slight
• Obvious
• Extreme
• Yet a few officers write impaired when there is
  no impaired option
• I know you think the driver is impaired, that is
  why you arrested him/her for DUI, processed the
  case, and referred it to the prosecutors office
• I want to know the level of impairment
• And I want the defense attorney, defendant,
  court, etc. to know the level of impairment
• Pick one of the three options. Never write
  impaired.

54
Constitutional Rights Implied Consent Warnings

• Never deviate from the printed language of the
  constitutional rights on page 2 and the implied
  consent warnings on page 3
• If the suspect has questions, re-read the rights
  or warnings and document that you did so in your
  report
• Do not give legal advice, nor try to interpret
  what the rights or warnings mean
• Any deviation from the language will at best
  result in the officer having to testify at a
  suppression hearing, and at worst result in
  serious reduction of charges or dismissal

55
The PBT Test

• A box concerning a PBT is below the implied
  consent warnings section at page 3
• I performed the PBT test in accordance with the
  State Toxicologists protocols
• Are you sure?
• If you check this box and did not follow the
  onerous Toxicologist PBT requirements, you just
  signed an untruthful statement under oath
• Which will have some serious consequences for the
  case, the officers future cases, the officers
  ability to be employed as an officer, and
  potentially result in the officers actions being
  reviewed for criminal charges
• More PBT discussion in Topic 4

56
Passenger Information Get It

• Pre-arrest observations, box 10 on page 4 asks
  for passenger information
• Get it! Full name, date of birth, address
• These people are witnesses whom the prosecution
  may want to speak with and ultimately call as a
  witness
• Even better, an officer should interview the
  passengers as witnesses to a crime
• Who was driving?
• What did the suspect drink? How much?
• Where did the suspect drink?
• When did the suspect start drinking, and stop?
• Why did the suspect drive after drinking?
• Was the suspect OK to drive? Why? Why not?
• What concerns did you have about the suspect
  driving after drinking?

57
Passengers Under Age 16

• A DUI defendants sentence is increased when a
  passenger is under age 16
• The court shall order the installation and use of
  an ignition interlock device for not less than an
  additional 60 days
• The prosecution must prove the passenger was
  under age 16
• Full name, date of birth, address

58
Interview The Person Who Picks Up The DUI Suspect

• I think that all DUI suspects should be booked
  and bail set
• Booking results in the taking of fingerprints and
  photograph, and
• The creation of a Triple I record of arrest
• But if the officer releases the suspect to
  someone
• Get the information discussed in the previous
  passenger slide
• The person might have seen the suspect drinking
• Either way, make sure to include this information
  (and bail amount) at the Administrative Process
  (BAC and Disposition) section of the narrative
  report on page 6

59
Sobriety Tests

• The DUI arrest report has a sobriety tests
  section at page 5
• Use of this section and boxes provides an easy to
  understand summary of the suspects SFST and FST
  performance
• Writing the suspects SFST and FST performance in
  the narrative report makes it more difficult to
  figure out how the suspect performed the tests
• And probably takes longer for the officer to
  complete
• If the comments boxes are not large enough, OK
  to include the comments in the narrative report

60
SFSTs Are Not Enough!

• Officers should administer more than just SFSTs
• SFSTs were created to develop PC to arrest for
  over limit BACs
• All FSTs, including SFSTs, are persuasive
  evidence towards showing beyond a reasonable
  doubt that the suspect was under the influence
• Why limit the evidence to SFSTs?
• Officers should administer the alphabet, balance,
  finger dexterity and finger to nose supplemental
  tests on the WSP DUI Arrest Report Sobriety Tests
  at page 5
• Especially the alphabet. It is very difficult for
  the defense to explain the poor results
  (especially if the officer asks about the
  defendants education).
• An officers job is to gather evidence. Limiting
  the gathering to SFSTs is a mistake
• The defense will surely ask the officer why these
  other tests were not performed, and ask the
  officer whether it is possible the defendant
  could have passed the unperformed tests

61
Definition of Refusal

• A person refuses a law enforcement officers
  request to submit to a test to determine the
  persons breath alcohol concentration when the
  person shows or expresses a positive
  unwillingness to do the request or to comply with
  the request.
• Washington Pattern Jury Instructions Criminal
  92.13
• Officers must document the refusal with this
  definition in mind
• Paragraph heading Refusal-Positive Unwillingness
  to Comply works nicely
• Refusals matter. Prosecutors may argue that the
  defendant refused because he knew he would fail
  the test aka consciousness of guilt
• State v. Long, 113 Wn.2d 266 (1989)

62
The Corpus Delicti Rule

• The corpus delicti confession corroboration rule
  is derived from ancient British common law which
  sought to stop false confessions obtained through
  torture and beatings by
• Prohibiting the Crown from proving a case based
  solely on a defendants extrajudicial confession
• The rule has been modified but still exists today
  regardless of whether a suspects admissions were
  made
• During a police custodial interrogation, or
• Voluntarily by a suspect during a Terry detention

63
Corpus Delicti And Crash Cases

• When an officer observes a suspect driving and
  determines that the suspect is under the
  influence, sufficient independent evidence exists
  in addition to the suspects confession to
  support the admission of the statements under the
  corpus delicti rule
• But DUI crash cases present a corpus delicti
  issue because generally no one sees the suspect
  driving
• Bremerton v. Corbett, 106 Wn.2d 569 (1986) is the
  key Washington corpus delicti case concerning DUI
  crash cases

64
Bremerton v. Corbett

• The Supreme Court held that for a DUI defendants
  confession and admissions to be admitted, the
  prosecution must show by independent prima facie
  evidence that
• The defendant drove a vehicle, and
• The defendant was under the influence at the time
  of driving
• The Supreme Court held that a case must be
  dismissed if the corpus delicti rule is not
  satisfied!

65
Corpus Delicti Evidence

• Officers must in DUI crash cases include a
  Corpus Delicti Evidence section in the
  narrative report
• If the defense attorney is convinced, no hearing
• If the officer does not include anything in the
  narrative report about corpus delicti, there will
  be a hearing
• Corpus Delicti Evidence includes
• Two people in area? Passenger says suspect was
  driver who did not drink after the crash.
• Manual transmission, and the sober person cannot
  drive stick
• Only suspect in area, and has mud on pants or
  injured knees consistent with trying to get out
  of vehicle, or trying to free vehicle
• Windshield broken on drivers side, and suspect
  has head injury
• Suspect has seatbelt bruises on left shoulder, or
  passenger has seatbelt bruises on right shoulder
• Engine warm (showing recent time of driving)
• Drivers seat is back, driver is tall, and
  passenger is short
• No empty alcohol containers found
• Vehicle keys in suspects pocket
• Vehicle registered to suspect

66
No Interlock In Vehicle

• Officers should include a statement in every DUI
  report about ignition interlock
• There was no ignition interlock in the vehicle,
  or
• There was an ignition interlock in vehicle
• Although DOL might not report that the suspect is
  interlock restricted
• A court may have ordered ignition interlock as a
  condition of release or condition of sentence
• The new incident can be used to sanction the
  suspect based upon the previous case wherein the
  interlock order was entered
• Courts do not like defendants who ignore their
  interlock orders

67
Report Writing Tips Headings

• Use the following headings in a DUI report
• Officers Authority and Certifications
• Driving Information, and Basis of Stop
• Include RCW numbers of all applicable traffic
  infractions
• Initial Contact With Suspect
• Pre-Arrest Screening
• Brief description about the scene and SFSTs/FSTs.
  But use Sobriety Tests section for SFST/FST
  results
• Arrest
• Search of the Suspect
• Miranda Rights and Warnings
• Search of Vehicle
• License and Warrants Check
• Impound

68
Report Writing Tips Headings Continued

• DUI report headings continued
• Other Crimes (resisting arrest, etc.)
• DataMaster (or DataMaster CDM) Processing
• Booking
• Evidence Seized
• Disposition
• Penalty of Perjury section
• Sign, date, and location
• Headings are useful as a checklist, helping the
  officer remember to include a discussion about
  each heading topic

69
Report Writing Tips Most Serious Crime Is
Count 1

• The most serious crime should always be cited as
  count 1
• DUI
• Then other gross misdemeanors, such as DWLR 1,
  DWLR/S 2, false statement
• Then other misdemeanors, such as possession of
  marijuana, resisting arrest
• Always have last count be DWLS 3 or criminal
  NVOL
• Although crimes, they are the least serious
  criminal traffic charges
• Court and prosecutor statistical data is
  generally run based upon count 1
• Count 1 always gets everyones attention

70
Report Writing Tips Avoid Small Fonts

• Do not use a small font to save space
• Judges have trouble reading small fonts, and get
  irritated when having to do so

71
Report Writing Tips Duplexing

• Do not provide a report to the prosecutors
  office on double-sided copies
• This just slows down the prosecutors staff, who
  has to copy the report several times

72
Topic 4Portable Breath Tests
73
PBT Results Only Admissible For PC To Arrest For
Alcohol Offense

• The State Toxicologist has promulgated
  regulations concerning PBTs which determine their
  use
• First, PBT results are only admissible to show PC
  to arrest for an alcohol offense. They may not be
  used to show BAC results
• WAC 448-15-020
• Second, all the Toxicologists protocols for the
  administration of a PBT must be met

74
WAC 448-15PBT Administration

• The PBT must be an Alco-Sensor III. WAC
  448-15-010.
• The PBT must be administered by a certified
  operator. WAC 448-15-050.
• WAC 448-15-030 test protocol must be followed
• 1. The operator must advise the subject that the
  PBT is a voluntary test
• 2. The operator must advise the subject that the
  PBT is not an alternative to an evidentiary
  breath test as described in WAC 448-13
• 3. The operator shall determine by observation or
  inquiry that the subject has not consumed any
  alcohol in the 15 minutes prior to administering
  the PBT. If the subject when asked responds that
  he/she has not consumed any alcohol in the last
  15 minutes, the officer may offer the PBT. If the
  subject claims to have consumed alcohol in the
  last 15 minutes or the subject refuses to answer
  the question, the officer must wait at least 15
  minutes before conducting the PBT.

75
WAC 448-15PBT Administration Continued

• WAC 448-15-030 test protocol continues
• 4. If the subject consents to the PBT, the
  officer must check the temperature of the PBT to
  insure it is within normal operating range
• 5. The officer will then press the read button
  to obtain a sample of ambiant air, and ensure the
  result is 0.0003 or less
• 6. The subject will be asked to exhale into the
  device, and
• 7. The PBT will be activated towards the end of
  the subjects exhalation to capture a portion of
  the end expiratory breath for analysis