Bad Drunk Driving Laws, False Evidence and a Fading Constitution

DUI BLOG

I’ve commented in past posts that it is becoming an increasingly common practice for police officers to simply use form or template arrest reports in drunk driving cases — what I have referred to in my books as "xeroxed" reports. In other words, rather than going to all the "trouble" of writing a report of the actual investigation and arrest, cops are using pre-written reports — and then changing a few details to fit the defendant.

This is bad enough, as the reports are supposedly signed under oath and subject to perjury charges. But it becomes particularly serious when you realize that very few officers can remember the details of a given case when testifying months later. In almost all cases, the officers read their own reports before taking the stand — and then testify essentially to what they read in the report. And in DUI cases, they are increasingly testifying based upon a fictional "xeroxed" case.

For example, California attorney Jon W. Woolsey got a court order requiring the California Highway Patrol to turn over any templates or forms used by the officer who arrested his client for DUI. The following is the template that was used:

FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated. I asked Name if he/she understood each test completely and he/she stated that he did. All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris. The weather was cool, clear/cloudy, and daylight/dark.

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees. Name’s eyes showed vertical gaze nystagmus.

2)One leg stand:Name lifted his/her right/left foot and dropped it immediately on the count of 1000.

3)Romberg:Name estimated 30 seconds in 0000 seconds. Name body swayed in a circular motion 1 to 2 inches from center of mass.

4)Finger Count:I explained the test to Name

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test. I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.

Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.

First Observations:

On 0-00-07 I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer nnn. I was traveling

Observations After Stop:I contacted the driver and advised him/her the reason for the stop. As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath. I noticed that the driver had red watery eyes, as well as slow and slurred speech. I asked the driver for his/her driver’s license, which he/she provided me. I identified the driver using his/her California Driver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “–.” I asked the driver to exit his/her vehicle and meet me at the right front of my patrol vehicle. I noticed that as the driver walked he had an unsteady gate. As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person. I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes. I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and asked him/her how much he/she had to drink and he/she stated, “—-.” I explained and demonstrated several FST’s to Name, which he/she could not complete as explained and demonstrated.

Arrest: Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle. I placed Name under arrest for 23152 (a) CVC at 0000 hours. I advised Name of implied consent and he/she chose the blood/breath test. I booked Name into the Sonoma County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the Sonoma County District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____

Basically, the report tells the officer what he should have seen — not what he actually saw. And as any honest cop will tell you, drunk driving cases rarely follow such a neat, pre-described script. But it is convenient. And avoids messy complications – like the actual facts.

One size fits all.