Law Tips: DWI, Part 3

The Officer’s Observations

Welcome back to our Law Tips series on DWI. Are you completely prepared? Are there issues in your client’s defense that you may have missed? What are the true signs of impairment and what aren’t? We’re here to share more of Conor O’Daniel’s DWI expertise in answering these questions. This week’s subject looks into thoroughly examining the arresting officer’s observations.

We thank Mr. O’Daniel, Evansville criminal defense lawyer with the firm of Foster, O’Daniel & Hambidge, for extending his CLE presentation for “DWI @ Trial” to our Law Tips series. Conor begins and ends his CLE remarks by emphasizing that preparation is always the key to a good defense of your client. Within his advice for scrutinizing all possible issues, he provides the following tips for challenging the observations of the police officer on the stand:

Officers will prepare a written/typed Affidavit of Probable Cause. Many times they indicate that the person smelled strongly of an alcoholic beverage, or they had slurred speech, glassy eyes, and poor dexterity. Obviously, unless the officer has had previous dealings with an individual, he has no basis to compare his observations with the defendant’s norm. For instance, glassy or blood-shot eyes alone mean nothing. The individual could have allergies, just come from a smoky environment, or had been working late. All of these signs are not indications of impairment. Get the officer to concede these issues. If he does not, the finder of fact may lend less credibility to their testimony. If he does admit that, you can move forward on other observations and show how his checking of those boxes on the Affidavit of Probable Cause form shows some sort of inherent bias.

Remember, prosecutors will state that law enforcement officers have no reason to lie. On the other hand, they have no reason to help the defendant they arrested either. Officers will say the individual had to be helped from the vehicle, but will never offer any information or ask questions relating to whether or not the person has had previous injuries to his knees, or had any recent surgeries, etc. If an individual slurred his/her speech, find out whether that is the way that individual normally talks, or if he/she had something in their mouth at the time of the questioning, such as chewing tobacco or gum. Get the officer to acknowledge they put all relevant information down on these forms so they can refresh their recollection later. Once they admit this, you can point out the absence of any observations as indications of a lack of impairment. For example, if there were no indications of abusive attitude, or the person had good balance.

Sometimes, officers will not have a firm understanding, other than what they wrote down, of the conditions at the time of a stop or arrest. So if the officer stated the person’s dexterity was poor and they did not otherwise outline why it was poor, you can and should question him/her on that statement. Increasingly, these forms are computerized. It may be helpful to check the officers filings on the previous stops to see if they just changed the names and kept the boxes checked. This may be done through a Subpoena Duces Tecum to the IT Department of the appropriate law enforcement agency.

To sign off for this week’s Law Tips, we’ll offer Conor’s concluding remarks at “DWI @ Trial”:

In short, cross-examination is not rocket science, but is the product of a lot of hard work and understanding of the law, as well as the facts of your case. Remember, you only need to show reasonable doubt, and the officer is not a God-like figure whose every word is to be held as the truth. Officers are human, and they make mistakes. It is our job to point out their mistakes, and the best way to do that, in my experience, is to prepare, prepare, prepare.

To view the upcoming Video Replays or the Online/On Demand Video of “DWI @ Trial”. Click here.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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