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A Prosecutor s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns Topic 1 SFST & FST Admissibility Kitsap Defense Challenge to SFST and FST ... – PowerPoint PPT presentation

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Title: A Prosecutor

A Prosecutors Perspective On Traffic Cases
  • Kitsap County Chief DPA Jeffrey J. Jahns

Topic 1SFST FST Admissibility
Kitsap Defense Challenge to SFST and FST
  • Kitsap County District Court ruled en banc on
    April 25, 2007 that
  • (1) SFSTs and FSTs are admissible in prosecutors
  • (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
  • State v. Shines, et al., Kitsap County District
    Court No. 16802901
  • 12 consolidated DUI defendants
  • Port Orchard v. Jason Bricks, No. 11408403,
  • Motion to suppress SFSTs and FSTs will be coming
    to your court!

Kitsap En Banc Hearing
  • All four Kitsap District Court judges attended
  • 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
  • Previous testimony by officer
  • Defense witnesses
  • Dr. Joseph Citron, MD, Ophthalmologist and NHTSA
    SFST instructor, Georgia
  • Michael Hlastala, PhD, UW professor of
  • Robert La Pier, former Idaho police officer,
    NHTSA SFST instructor
  • Hundreds of pages of exhibits

Why Challenge SFSTs FSTs?
  • Washington DUI defense bar very organized
  • Washington DUI laws are tough!
  • Perhaps only capital punishment defense bar more
  • 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
  • Defense recognizes SFSTs and FSTs hurt
    defendants chances
  • So, better challenge the evidence and try to keep
    it from juries

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

NHTSA Manual Page VIII-19
  • The Defenses proof in support of keeping SFST
    evidence from the jury, page VIII-19

What Does Page VIII-19 Mean?
  • The Defense equates scientific validity with
  • But what exactly did NHTSA validate?
  • Mid-1970s, NHTSA determined that way too many
    over .10 BAC drivers were being let go by
  • 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
  • 16 way too many, so NHTSA reduced the number to
    6, and eventually to 3HGN, WAT, OLS

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
  • 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

SFSTs Are Really Accurate Predictors of 0.12 BACs
  • Defense witness Michael Hlastala helped the
  • 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
  • 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

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

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

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).

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.

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
  • 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.

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

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
  • Officer should include this fact in the officers
    narrative report

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

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

Topic 2A Traffic Stop Primer 2007
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
  • Plain view warrantless searches
  • Open view warrantless searches
  • Impound and inventory warrantless searches
  • Mendez passenger control checklist
  • Terry stop and search checklist

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
  • State v. Cole, 73 Wn.App. 844 (Div. 3 1994)

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
  • But, to justify the stop, officer better
    carefully document why the cracked windshield is
    so unsafe as to endanger someone

Recognize Suspended Driver
  • A vehicle may be stopped when an officer
    recognizes the driver as someone whose license is
  • 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

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

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

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
  • Must document exact date of sale in report, and
    count 46 days later
  • Not an infraction for first 45 days, or day 47 or
  • 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

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
  • 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)

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,
  • 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)

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
  • 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

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.
  • Washingtons constitution provides greater
    individual privacy protection than the federal
  • So, the 4th Amendment and United States v. Mendez
    do not apply in Washington

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
  • 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
  • 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

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

Traffic Stop By Officer On Duty To Enforce
Traffic Laws Not Pretextual
  • Much pretextual litigation has occurred since
  • 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,
  • 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)

Opening Containers Seized During Terry Frisk For
  • 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
  • Officer can be protected by tossing the pack out
    of reach

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

Possession Of Drug Paraphernalia Is Not A State
  • 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)

What Is Needed For Use Of Drug Paraphernalia?
  • Officer must document the specific controlled
  • 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
  • If the officer documents the specific controlled
    substance and how the officer knows the residue
    is a controlled substance

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

A Prosecutors Perspective On Traffic Cases
  • Kitsap County Chief DPA Jeffrey J. Jahns

Topic 3DUI Arrest Reports
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.

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.

  • 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
  • (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.

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

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
  • 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
  • No attorney likes to lose!

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

What Does An Officer Never Going To Court Really
  • 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
  • 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

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

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
  • 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?

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
  • 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!!!

The WSP DUI Arrest Forms Cond
  • Please use the WSP DUI Arrest Forms!
  • The forms are at http//breathtest.wsp.wa.gov/dui
  • 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

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

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
  • 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

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

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
  • 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?

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

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
  • 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

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
  • 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
  • If the comments boxes are not large enough, OK
    to include the comments in the narrative report

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

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
  • 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)

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
  • During a police custodial interrogation, or
  • Voluntarily by a suspect during a Terry detention

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
  • Bremerton v. Corbett, 106 Wn.2d 569 (1986) is the
    key Washington corpus delicti case concerning DUI
    crash cases

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

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

No Interlock In Vehicle
  • Officers should include a statement in every DUI
    report about ignition interlock
  • There was no ignition interlock in the vehicle,
  • 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

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
  • Initial Contact With Suspect
  • Pre-Arrest Screening
  • Brief description about the scene and SFSTs/FSTs.
    But use Sobriety Tests section for SFST/FST
  • Arrest
  • Search of the Suspect
  • Miranda Rights and Warnings
  • Search of Vehicle
  • License and Warrants Check
  • Impound

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

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
  • 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

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

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

Topic 4Portable Breath Tests
PBT Results Only Admissible For PC To Arrest For
Alcohol Offense
  • The State Toxicologist has promulgated
    regulations concerning PBTs which determine their
  • 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

WAC 448-15PBT Administration
  • The PBT must be an Alco-Sensor III. WAC
  • 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.

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
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