Law Tips: DWI Part 2

Probable Cause?
Welcome back to our Law Tips on DWI. This week we get into the nitty gritty of the officer’s reliability and recollection as presented by faculty member Conor O’Daniel. Mr. O’Daniel, of Foster, O’Daniel & Hambidge, Evansville, recently participated in ICLEF’s seminar “DWI @ Trial” by covering “Cross Examination of Police, Datamaster Expert and State’s Witness.” Our focus specifically for this week’s Law Tips is Conor’s advice on critical issues involving the basis for the stop, such as:

When an attorney is armed with the proper materials and has a full understanding of the case (including the strengths and weaknesses), effective cross examination will naturally follow. In preparing for the cross-examination of an officer, I typically break down the case to separately evaluate the basis for the stop, observations by the officer, field sobriety tests, and the chemical test.

The Reason For The Stop:
Some law enforcement agencies have cameras in the vehicles; and when available, attorneys should always request that information, as it is proof positive of the events of the day. We know pretext stops are valid in Indiana. Often times, officers will claim the reason for the stop is anything from weaving within the lane; improper turn signal; no license plate illumination light, etc. In the absence of any video tape, the Courts will accept the officer’s observations as true.

What happens, though, when the officer’s truthful observations do not establish a valid basis for a stop? For instance, does an individual have to have two working brake lights on their vehicle? If the license plate illumination light is burned out, but an officer can observe the license from more than 50 feet, is that a violation? These are questions that may very well come up in motion to suppress process, but it can also be revisited during cross examination in the case in chief.

It is always important to point out what officers do not remember. Officers make hundreds of arrests per year and rarely can recall the specifics of any one particular case some six or eight months down the road. If an officer indicates he has some special ability to recall, you should take this opportunity to question him hard on what the individual was wearing, what were the weather conditions, how many other people were around, what the license plate number was, etc. There are any number of questions you can ask an officer to show or demonstrate how imperfect his or her memory may be. Has the officer indicated he/she wrote down all of the material facts of the case so he/she does not forget them? Did he/she subsequently add something to the facts that was not otherwise disclosed, suggesting this was simply made up recently?

In one particular case, an officer conceded on the stand that he saw a license plate light from 50 feet away, which was within the bounds of law, and would have led to a suppression had that been the only basis for the stop. Later in the hearing, the officer added that he first noticed the light out in his rear-view mirror, which was the basis for the stop. Of course, he was questioned as to whether or not any tickets were written, whether it was written in an Affidavit of Probable Cause, whether he noted it anywhere or told the attorney in the deposition about it. In fact, he admitted this was the first time he ever said anything about this — that he just remembered it — at which point he was questioned about his ability to recollect much of anything, such as clothing worn, who else was around, etc.

Mr. O’Daniel’s lecture for the DWI @ Trial seminar continues by intricately examining issues in observations of the officer, field sobriety and chemical tests, all areas that can provide key defense mechanisms. We’ll continue with our Law Tips series on DWI next week as we share Conor’s candid and expert opinions on preparing for trial. To read last weeks Law Tips, Click Here.

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