Nine Mistakes Made by Police

The following content was not written by Attorney Richmond and is posted here unedited with the expressed intention of presenting more than one perspective when considering your options. Attorney Richmond may or may not agree with any or all statements made by the author.

By: G. Cantor, La Mesa P.D. Sergeant (Ret)
The State of California recognizes that drinking and driving is a serious problem. Consequently, the requirement that must be met to stop someone and investigate is relatively easy to meet.

Even officers with minimal experience can successfully detect, investigate and arrest people for driving while under the influence (DUI). But even though it is quite easy for officers to successfully arrest drunk drivers, they can make mistakes or create problems for themselves that opens the door for a successful defense. The purpose of this article is to discuss some common problems, and why they happen.

Successful prosecution occurs when all of the elements of drunk driving are met. An element is essentially a requirement of the law (underlined below). For example: 23152(a) CVC states:

It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug to drive a vehicle. Unsuccessful prosecution can result if the State fails to prove that the elements were present, or if the officer’s actions lack probable cause or credibility to the point of causing reasonable doubt.

The below listed problems are ones I have seen in my experience as a police officer, sergeant and investigator.

Weak Probable Cause to Stop:

1. Making a stop for a traffic violation, when the driver’s actions do not meet the elements of the alleged traffic offense. This happens when the officer has only a casual familiarity with the Vehicle Code.

2. Stopping a person for erratic driving (suspecting that the driver is DUI) when there has been insufficient observable driving for the average person to reasonably believe it was due to alcohol and nothing else.

This can occur when the officer is very experienced and recognizes signs in driving well before the average citizen, and makes the stop before there is sufficient evidence to overcome reasonable doubt to the average person.

3. Making a vehicle stop on a car described in a radio call as being a drunk driver. However, too much time has elapsed and/or the location is too far removed to reasonably believe that the officer stopped the correct vehicle.

Many times officers make a stop of a vehicle for a traffic violation and, after the stop, discover that there is a possibility that the driver is under the influence. Inexperienced officers can weaken the prosecution’s case by a poor investigation.

4. If the officer fails to eliminate other mitigating factors when observing objective symptoms, it can raise doubt that what was observed was alcohol related.

It is common to see the officer write, “I smelled the odor of an alcoholic beverage coming from the vehicle.” If there are passengers, or spilled beverages in the vehicle, the odor may not be coming from the driver. “Bloodshot and watery eyes,” is a common phrase, however, lack of sleep or a cold wind can also cause this. “Staggered or unsteady gait” can occur with high heels or when poor or no shoes are worn by the driver and there is a rough or uneven surface.

5. Relying too heavily on a citizen witness to place a person behind the wheel, ignoring other physical evidence that either confirms or contradicts the witness. Especially applicable in an unwitnessed collision.

If a witness claims to have seen something, the officers must establish the credibility and reliability of the witnesses’ observations.

6. Unaccounted for time periods can be a problem for an officer if it has not been addressed during the investigation. This is most likely to occur when dealing with a hit and run type of situation where the driver is contacted sometime after the incident. The officer cannot assume that the driver’s level of intoxication at the time of contact is as it was during the time of the collision. If there is unaccounted for time, the intoxication level can change from the time of the driving to the time of the contact. The driver must be under the influence at the time of driving, not at the time of contact.

There are many factors that motivate police officers to make arrests for drunk driving. Some officers take it as a personal crusade. Should that be the case, the officer can become very aggressive and unconsciously overstate their observations during the investigative stage of the contact, That is, slight imperfections in the performance of the tests are overstated to appear more severe than they were.

7. If an officer feels compelled to make an arrest, and the results of the field sobriety tests are overstated or ignored, the arrested person may have a low BAC, below .08.

Although it is possible to prove DUI with a BAC below .08, being under the influence is not presumed. It must be proved based on driving and objective symptoms that the driver was under the influence of alcohol at the time he was driving. Mere traffic violations do not prove it.

Another factor that plays into this process is the matter of credibility of the witnesses, including the officer. Credibility is a necessary element for having the judge or jury believe what is being reported. Poor report writing practices can cast doubts on the credibility of the officer’s observations.

8. Cutting and pasting text from previous reports, if done carelessly, can cast doubt on the believability of the officer’s observations. For example, leaving the name of the previously arrested person in the text or the language used to describe the driver’s actions and demeanor exactly the same in two different reports.

9. When officers do a lot of drunk driver arrests, they tend to fall into patterns of speech and report writing. Consequently, every arrest sounds the same. If the officer is not careful, a person with a known BAC of .07 can sound just like a person with a known BAC of .20. There is inconsistency between the known facts and the reported observations. This inconsistency can cast doubts on the accuracy of the officer’s findings, leading to reasonable doubt.

If you have been arrested for DUI, the prospect of putting on a defense for yourself is overwhelming. The purpose of pointing out the mistakes that police officers make is to help you understand that not everything is as it appears. Police officers are human, subjected to human tendencies. That is why we have an adversarial justice system that assumes your innocence.

An experienced lawyer with a competent team can make a difference in the outcome of your case.