Thursday, March 21, 2013

A Defense Lawyer's Viewpoint: Using The Duty and Obligation of the Police to Investigate DWI

Walk and Turn After Saturation Patrol Stop, from

Law enforcement has a difficult job for a number of reasons. They are the people on the street and the foundation of our criminal justice system. They must play multiple roles under the motto of "to serve and protect." They must be peacekeeper, protector, investigator, watchkeeper, psychologist, and sometimes even social worker. With so many repsonsibilities and pulls in different directions doing their diligence on any one task may prove to be difficult.

The DWI Arrest

Recently I was cross examining an officer and he told me he was on a "DWI saturation patrol." In  other words the police had decided to commit a great number of cars and officers to a specific Saturday night. They have found that this is a far more effective technique than the DWI checkpoints (which have shown to be evaded). They did a round up of all the late night/early morning traffic offenders but they were really seeking (more like hunting) drunk drivers.

# 1  Their first duty, responsibility, and obligation when investigating a crime (like a DWI) is to be thorough and complete. Are there INNOCENT REASONS for bad driving behavior?

If they see a car swerving or driving erratically, and then initiate a stop of that car they must follow a protocol. The stages of police investigation generally follow a graduated approach from the less invasive (intrusive) to more invasive.

Is there an innocent explanation for the alleged bad (illegal) behavior, ie. the traffic violations?
Did the person drop their cell phone?
Reach for their soft drink, or Big Mac?
Were they fiddling with their car gps or radio?

The question at this stage is whether there are exculpatory reasons for the behavior? Ones not related to being impaired and/or intoxicated by drugs and/or alcohol. The police must seek the incriminating evidence (ie. open containers, bongs, pipes, drugs) and even the non-incriminating (ie. a Wendy's chili or a bag of chips).

# 2  Adequate investigations must meet probable cause standards of inquiry.

Did they ask about these other reasons? Did they make any inquiry with the person being charged or anyone in the area?

As Professor of criminal justice Stanley Fisher so quotes about exculpatory evidence (directed towards non guilt),

"where a criminal investigation is conducted ALL reasonable steps are taken for the purposes of the investigation and, in particular all reasonable lines of inquiry are pursued."

Emphasis here is on REASONABLE because PC (probable cause) is reasonable and trustworthy information that a particular person committed a particular crime.

If there was an accident, did the fact that the roads were icy make that a contributing factor or the main factor of a crash? Did any other facts that they could have discovered contribute to their opinion? Were all witnesses interviewed and all leads pursued? Diligence is looking, seeking, and uncovering .all the evidence available. If they fail to interview witnesses that are or were present that is UNREASONABLE

If they note in their report the observation of red, watery, and glasses eyes have they asked about crying, allergies, and eye problems? If the person stated they came from a fight with their boyfriend, is that noted in their official police report?

Are have they just assumed, alcohol and drugs are the culprit?
Have they properly collected, and documented their evidence? Attention to detail is the mark of an excellent law enforcement investigator.

HGN (horizontal gaze nystagmus) must be given properly to be used in Court

#3 Have they avoided "tunnel vision" and "confirmatory bias?"

Kinda like gather up all the usual suspects, but if they see everyone with speeding at 1 am as a drunk first and ask questions later, we all got a problem. Have they accounted for nervousness, footwear, and/or weather conditions when giving and scoring field sobriety tests? Do they leap to conclusions early in their investigation or do they keep an open and objective mindset throughout?

Afterall whose job is it anyway?

They who are going to make an arrest decison are the ultimate deciders. They have the power and therefore the accompanying responsibility to insure the correctness of their actions. It is also ultimately their burden to prove a person's guilt for what they are charged. It is not the responsibility of the person on the street to assert their innocence.

Larry Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law