DUI to the slightest degree

[Zigner]

I may need a hand down, this morning my eyes are red and am a bit sluggish. I must be impaired.

One should never confess

 

[CdwJava]

1. Although in this case it is an assumption, it's common for people with obvious means to be treated differently than people without. The examples of this in the criminal justice system is endless. This is a weak case with no evidence but the officers observations.

MOST DUIs rely solely on the officer's testimony for the arrest, and very often for the prosecution when a driver refuses to take a test or one is unable to be completed.

As for people with means, I'll let you in on a hint - it's more about attitude than money on the streetside. Money might help later on, but even that depends on the details. I have dealt with a number of DUIs vs. people of means and while they may spend tens of thousands of dollars, the end result is usually the same ... except it costs them more to get there.

2. Unfortunately and I mean unfortunately I know quite a bit about it. I also know that there can be several reasons for behaviors and appearances.

Sure there can be - that's why more training is better than less. And why the SFSTs and the supplemental tests are designed to be utilized as a battery and not individually.

A lot of money spent to talk about red eyes, nervousness, and the Always used smell and slurred speech.

We are expected to articulate those objective signs and symptoms we observe. The courts don't tend to like, "He looked drunk" or "He looked stonesd" and then we take it from there.

I know, it takes months and thousands or hundreds of thousands of dollars to "train" an officer to detect the not so obvious.

Not sure that you have the time and cost right (certainly not for the initial training), but, it takes time and experience to do it well.

Although it could be drug use or genetics or stress or light sensitivity or a million other things.

And, that's why they are done as a battery.

Oh yeah, of course it could be nothing at all. Of course an officer can never admit this. I mean why not take easy money. Who's gonna admit their job is probably right sometime.

Never admit what? That someone does not appear to be impaired? It happens every day! You don't read about those because they don't go to court. And, we don't tend to track stats suspected DUIs who are released after an evaluation.

3. Genius or no, an evaluation of impairment is common sense with some experience mixed in.

And training. All the common sense in the world won't tell you what to look for in a driver who is under the influence of meth., or heroin, or marijuana, unless you KNOW what to look for to determine impairment that does NOT include the person stumbling around and drooling on himself. Impairment does not require that a person be a staggering fool or look and act like a junkie.

4. I'm just not convinced he was impaired.

We have no way of knowing - we were not there.

The way the laws are now, an officer can wait outside any bar and arrest everyone who leaves.

If they are impaired, sure. But, they also run the risk of lawsuits if they watch a staggering drunk get into a car and then wait until he's in motion to try and make the stop. That additional risk is something that can get the officer in legal trouble as well as disciplined by the agency if the impaired driver than runs into someone or something.

If you get behind the wheel it's a d.u.i. or a d.w.i. depends what state and if not if the officer is in a bad mood than public intoxication. No evidence needed if you are without resources.

The officer's observations and testimony IS evidence.

The officers know about the stiff max. sentences and also know how to fill out the paperwork for the strongest case. The actual facts seem to take a back seat to a strong case.

I don't know where that comes from. If you know any officers that are making it all up, I hope you report them.

The DREADED camera. Why go through all the training and all the blah, blah, blah when you can just equip every cop with a body cam?

That's happening,. But, the camera is not going to pick up all the nuances of impairment such as the eyes, odor, muscle tone, temperature of the skin, etc. Cameras are a great tool, but, they do not capture everything. Most DUIs are not slobbering, staggering drunks.

Why are the cops fighting against this so hard?

Fighting what? Cameras? In those few places that they are still resisting them, it tends to be regarding other issues - discipline, public access, etc. There are LEGAL issues to be considered as well as the practical. My agency has been using body cams for about 5 years, so they are not new.

I mean truth and justice is the ultimate goal, right? If a cop is honest than why not get everything recorded? The thing is Carl, is that we all know why.

No, you think you "know" why, but you don't. You have your thoughts, but the reasons why some officers may resist cameras are as myriad as the reasons one might not want to drive a Prius.

 

[CdwJava]

I may need a hand down, this morning my eyes are red and am a bit sluggish. I must be impaired.

Or, you could just be sleepy ... there IS a difference.

 

[FlyingRon]

Or, you could just be sleepy ... there IS a difference.

Dewey Finn: Ok, here's the deal. I have a hangover. Who knows what that means?
Frankie: Doesn't that mean you're drunk?
Dewey Finn: No. It means I was drunk yesterday.

 

[dave33]

O.k. Carl here we go again.
1The officer always has a portable test and that is often what the arrest is based on. What happens around here when you refuse is you are arrested charged with d.u.i. and refusal. In the court proceedings the d.u.i. is dropped in return for a guilty plea for the refusal. You cannot convince me a man in a Mercedes in a suit is treated the same as the guy in a pick-up truck and a pair of jeans. This is because one has the means to protect his rights and the other does not.
2.You can do whatever tests you want but it always goes back to the breath test or blood test.
3. The signs can be articulated all day long but it's only testimony, which is many times unreliable.
4. The bottom line is it's a ton of money that could be much better spent.
5.It happens everyday? Suspected d.u.i's are evaluated and released? On what planet? I cannot think of anyone that was subjected to the tests because the officer thought he/she was impaired and than released. I am sure it has happened but just about everything that can happen has happened at one point. It certainly does not represent the majority or even a small percentage of suspected d.u.i's. It's just not realistic.
6. You are right impairment does not require stumbling around and acting like a junkie, problem is the report always reflects just that. The report never states the signs of impairment were very discreet but because of my extensive training I was able to pick up on things that most people are not. Exaggeration.
7. The problem that the officers testimony is evidence is that it leaves to much room for abuse. How can someone defend themselves against a statement only? It should and hopefully someday will require physical evidence.
8. I never said they make it all up. Only the parts that strengthen their case. It's becoming an art how these reports are written, instead of a representation of the facts. The 1st time a case is dismissed the officer will never again include that set of facts in the report again.
9. How come when camera footage is used against a defendant it's a closed case but when used to disprove an officer, it doesn't accurately depict the totality of the circumstances?
10. Body cams for 5 years? I've never heard of such a thing. I stand corrected. But, to keep the facts straight we must acknowledge that that is unusual and most unions and officers want nothing to do with it.
11. Really Carl, myriad of reasons for not wanting cameras? Like what?

 

[dave33]

Or, you could just be sleepy ... there IS a difference.

That's why it should require more than testimony. What if the officer is the most honorable cop in the world and makes an honest mistake? The defendant must pay for someone else's mistake.

 

[davew128]

11. Really Carl, myriad of reasons for not wanting cameras? Like what?

Logistical I would imagine. What would be your departmental procedures for WHEN the cameras get turned on? Should they ALWAYS be on? You want them when the officer goes 10-100? When they go into 7-11 to buy a soda?

 

[TigerD]

Dave33 - different states, different rules for the PBT. While they may not be accurate to a legal degree of certainty, they almost always perform well enough to indicate alcohol and give the officer a ball park idea.

CDW - Sorry, there is no way a cop with 112 to 132 hours of training is going to what an actual doctor requires a blood panel and MS/GC for. I commend officers for trying to do their jobs the best they can, but DRE is almost as bad as the four-legged search warrant.

TD

 

[dave33]

Logistical I would imagine. What would be your departmental procedures for WHEN the cameras get turned on? Should they ALWAYS be on? You want them when the officer goes 10-100? When they go into 7-11 to buy a soda?

Sure, with the technology in this day and age, why not? It can be just this simple.... At the beginning of your shift turn it on, at the end turn it off. At the end of your shift download the info. at the station in case the footage is requested in the future.

 

[dave33]

At this point I think it's safe to say we got a little sidetracked. I don't want to speak for anyone else, I got a little sidetracked.

 

[CdwJava]

1The officer always has a portable test and that is often what the arrest is based on.

No, he doesn't "always" have one, and, no the arrest is not (or SHOULD NOT) be based upon that test. In fact, I do NOT use it in the FSTs simply to avoid the perception that it might have skewed my opinion. If I cannot determine that a person is impaired based upon my evaluation, than I need to go back for better training. I carry the PBT because, sometimes, it may be the only test available, or, in the case of minors or persons on DUI probation, they could be required to take the PBT in the field. The PBT is only one of the FSTs, it is not a test to establish the BAC of the driver. And, in the case of a drug DUI, it is pretty much worthless accept to rule out the presence of alcohol.

What happens around here when you refuse is you are arrested charged with d.u.i. and refusal.

A refusal to blow into a field PBT is not a crime ... at least I don't know of any state where it is.

You cannot convince me a man in a Mercedes in a suit is treated the same as the guy in a pick-up truck and a pair of jeans. This is because one has the means to protect his rights and the other does not.

I can honestly say it doesn't make any difference to me or the officers I know. An Adam Henry can wear a suit or blue jeans, and a guy who is polite can be dressed either way as well. His money doesn't concern me, his attitude and inebriation does.

2.You can do whatever tests you want but it always goes back to the breath test or blood test.

No, I can do those tests that are accepted and that the local prosecutor is willing to defend. If I make someone do hand and palm flipping and recite the alphabet, those are grand, but they are not standardized field sobriety tests, and I cannot support them in court. In some cases they might be effective on a video to show that someone is either uncoordinated or illiterate, but they cannot legally establish impairment on their own.

3. The signs can be articulated all day long but it's only testimony, which is many times unreliable.

If you say so. I testify as to what I observe. I also make notes on my observations. And, there is often video of the procedure - at least audio even if the video is not clear due to angle or darkness.

4. The bottom line is it's a ton of money that could be much better spent.

Better spent on what? Sorry, but taking impaired drivers off the road and saving lives is money WELL spent. Period. Some states - Colorado, in particular, is spending even MORE money right now because of the problems that stoned drivers are now placing upon the police and the justice system there. We will soon see it out here as well.

5.It happens everyday? Suspected d.u.i's are evaluated and released? On what planet?

This planet. Earth. California, in particular. I've done i, other officers do it, it happens. All because you don't see it doesn't mean it doesn't happen. True, most people evaluated are arrested ... not because the officer is making it up, but because the officer has observed the objective signs of impairment.

I cannot think of anyone that was subjected to the tests because the officer thought he/she was impaired and than released.

I can think of quite a few ... but, I live in a small county and know a great many of the people here. If you asked me if I had any friends or family memebrs that were released after an FST, I'd have to say "no" ... but, then, they were all impaired and admittedly so, so I would expect them to be arrested.

The police tend to evaluate people that seem impaired, it's not random.

6. You are right impairment does not require stumbling around and acting like a junkie, problem is the report always reflects just that. The report never states the signs of impairment were very discreet but because of my extensive training I was able to pick up on things that most people are not. Exaggeration.

I suspect I read far more police reports than you do. With only two exceptions have I ever read reports where the articulated observations were clearly exaggerations or at least left that impression.

7. The problem that the officers testimony is evidence is that it leaves to much room for abuse. How can someone defend themselves against a statement only? It should and hopefully someday will require physical evidence.

And what kind of "physical evidence" would you be willing to tolerate? How invasive do you want it to be? Roadside blood tests on suspicion alone? Urine tests? Mandatory breath, blood or urine upon contact?

An arrest must be based upon articulated probable cause. That probable cause is established based upon the officer's observations from before the stop, through the contact and into the arrest.

8. I never said they make it all up. Only the parts that strengthen their case. It's becoming an art how these reports are written, instead of a representation of the facts. The 1st time a case is dismissed the officer will never again include that set of facts in the report again.

I can't speak to every situation everywhere, but, I can say I have never seen or heard of this, and I have certainly never instructed this.

9. How come when camera footage is used against a defendant it's a closed case but when used to disprove an officer, it doesn't accurately depict the totality of the circumstances?

I have yet to see a video that reflects odor, nystagmus, skin temperature and tone, etc. Are you aware of any camera that does this?

10. Body cams for 5 years? I've never heard of such a thing. I stand corrected. But, to keep the facts straight we must acknowledge that that is unusual and most unions and officers want nothing to do with it.

Many years ago, I'd say that you might be right. But, the reticence was rarely in order to perpetuate malfeasance, but reflected a lack of trust in the administration. There was and is a fear that video will be randomly reviewed to find reasons to discipline officers and that some officers who run afoul of an administration for political reasons might find their videos being scrutinized more frequently in others in order to find issues to use for discipline. There are also legal questions involved such as videos revealing personal information of people NOT related to the case. Personal identification info comes over the radio of others people involved and that can result in issues - which is why the CHP will often not release MVARS video in discovery without a court order, but WILL allow people to review them at the office.

The same fear came about a couple decades ago when GPS devices were put onto cars. In one rural county the Sheriff started reviewing the driving patterns of his officers, and officers got written up for speed. So, the deputies started traveling only at the speed limit and response times to calls rose from about 20 minutes to nearly 40. The Sheriff then backed away from random reviews, and only would review these records when they became an issue. A similar fear existed early on with body cameras. For the most part, that reluctance has given way to more reasonable policies for the use and review of cameras. For instance, my department used to have a "shall use" policy for cameras and the fear was what happened if the camera malfunctioned or the officer forgot to turn it on? The last thing we wanted was an officer to be thinking of turning on his camera when he should be thinking tactically in an unfolding event, or, that he might get in trouble if the camera died or did not record. This had to be addressed before officers became comfortable with them.

11. Really Carl, myriad of reasons for not wanting cameras? Like what?

See above.

 

[CdwJava]

That's why it should require more than testimony. What if the officer is the most honorable cop in the world and makes an honest mistake? The defendant must pay for someone else's mistake.

His observations would be really, really weak ... no odor of alcohol, staggering, weaving, slurred speech, etc.

I doubt a DA would consider filing on a case with only bloodshot and watery eyes and a yawn.

 

[CdwJava]

Logistical I would imagine. What would be your departmental procedures for WHEN the cameras get turned on? Should they ALWAYS be on? You want them when the officer goes 10-100? When they go into 7-11 to buy a soda?

Precisely what one of the major problems is!

The first cameras we had possessed enough storage space to hold about 1 1/2 hours of recordings, and had a battery life of about 10 hours. While the battery might make it through a shift, two lengthy calls and the recording would stop and you would not know it until you got to the office and tried to review it. They also were susceptible to foulups that reset the digital clock to midnight on July 1st 1999.

Policies must reflect both technical foul-ups and tactical situations.

 

[CdwJava]

Sure, with the technology in this day and age, why not? It can be just this simple.... At the beginning of your shift turn it on, at the end turn it off. At the end of your shift download the info. at the station in case the footage is requested in the future.

Hole crap! That would include all manner of invasive footage not only of the officer, but of other folks that are not a subject to a call or other event. And if this is a public record - as some might argue - then you could request my entire shift, obtain personal info on dozens of people, find out what I ate for lunch, where I live, who my kids are, what I tell my wife over the phone, etc. Far too invasive. And if you redact it, or cut it at one end or another, it can be seen as "editing" the footage and unlawfully tampering with a public record. Yes, THAT argument has already been made at least in my state. So, many policies require that the recording begin at the start of the contact and end at the conclusion ... if there is good cause to turn it off during the incident, this must be accounted for either in the report or to a supervisor.

Then there is the storage side of things. 10 minutes equals more than 450 MB - roughly 2.7 GB per hour. If we did 12 hours of recording, that would be ... uh ... roughly 32.4 GBs per officer per shift. My agency's server would be filled up in a day. We are already buying external drives to store the data on as it is, but that kind of storage space is neither easy nor free.

 

[CdwJava]

At this point I think it's safe to say we got a little sidetracked. I don't want to speak for anyone else, I got a little sidetracked.

Yeah ... it did ... just as guilty here.