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 August, 2010 Volume 3, Issue 4 |
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Getting Back to the Basics of a DUI Case |
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Coming Events
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Drunk Driving Over the Limit Under Arrest National Crackdown
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Advanced Breath Testing and Toxicology for Prosecutors
Aug. 23-25, 2010
Kansas City, MO
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Impaired Driving Conference
Sept. 20-21, 2010
Wichita, KS
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GHSA Annual Meeting
Sept. 26-29, 2010
Kansas City, MO
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TSRP,LEL and LOL Training
Nov 15-18, 2010
New Orleans, LA
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NAPC Winter Conference December 6-9, 2010 Asheville, NC
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LIFESAVERS 2011 March 27-29, 2011 Phoenix, AZ |
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By Elizabeth Earlywine,
Traffic Safety Recource Prosecutor, Illinois Department of Transportation, SFST/DRE Program Coordinator
Trials are boring. Police officers and attorneys focus on the evidence; jurors don't. Real-life trials are not what jurors think they should be; they expect them to look and be like something they see on television or in the movies. Juries expect trials to look like Law and Order or My Cousin Vinny. They expect the evidence to look like that found in the CSI style shows. These shows give their audience something to pay attention to, to remember and to talk about - visual imagery.
 WHO IS YOUR AUDIENCE?
A successful DUI prosecution begins at the first observations of the suspected impaired driver and continues throughout the DUI investigation and arrest procedures, culminating at the trial.
The use and presentation of visual information starts with the officer's documentation of these events and is the foundation for everything that comes after. Throughout your entire case, think about the ultimate audience. Who is it you need to convince?
EDUCATION, EDUCATION, EDUCATION | |
DUI cases are among the most difficult a patrol officer or a misdemeanor attorney will handle, particularly so early in their careers. Defense attorneys routinely take advantage of this. Additionally, popular culture has raised the burden of proof in all types of criminal cases. Jurors expect to be presented with "scientific" evidence even where none should be expected to exist. Law enforcement officers and prosecutors must answer these challenges proactively, by educating themselves in the science and the law and presenting their information in a manner that will be remembered and believed by the finders of fact. | |
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| PAINT A PICTURE |  So, if these are the challenges we face, how do we meet them? Get back to basics. Conduct a thorough, complete investigation. Record the evidence in detail, don't assume an in-car camera video will be available by the time of trial. Prepare before court. Use detail and words with impact to paint the picture for the judge or jury. It starts with the officer making the arrest and ends with the prosecutor giving the closing argument. The following are some reminders for getting back to basics at each stage in the investigation and prosecution.  GATHERING INFORMATION The DUI investigation starts with the traffic stop. Focus on your observations of the defendant's driving behaviors and any evidence that may suggest impairment. Was your attention drawn to the defendant's vehicle by a moving violation, an equipment violation, an expired registration, unusual driving actions, (i.e., weaving within a lane or moving at slower than normal speed), and/or evidence of drinking in the vehicle (alcoholic beverage containers, coolers, etc.). Was your attention drawn to the defendant's personal behavior or appearance by such things as eye fixation, tightly gripping the wheel, slouching in the seat, gesturing erratically, face close to windshield, drinking in the vehicle and/or driver's head protruding from vehicle? These are just some of the indications that can paint that picture necessary for conviction.
Articulate the manner in which the defendant responded to your signal to stop, and how the defendant handled the vehicle during the stopping sequence, such as attempting to flee; no response; slow response; an abrupt swerve; sudden stop; and/or striking curb or other object.
BE DESCRIPTIVE
Describe your personal contact and interview of the defendant, focusing on SIGHT: bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers, drugs or drug paraphernalia, bruises, bumps or scratches, and/or unusual actions; HEARING: slurred speech, admission of drinking, inconsistent responses, abusive language, unusual statements, and SMELL: alcoholic beverages, marijuana, "cover up" odors like breath sprays, and/or unusual odors. Once you decide to instruct the defendant to step from the vehicle, how the defendant stepped out of and walked from the vehicle also will provide evidence of impairment, such as angry or unusual reactions; inability to follow instructions; inability to open the door; leaving the vehicle in gear; "climbing" out of the vehicle; leaning against the vehicle for balance; keeping hands on vehicle; and/or inability to remain in an upright, standing position. These are observations that everyone can relate to, as opposed to field sobriety tests that some jurors may think they "couldn't do sober."
Standardized field sobriety tests are not to be discounted, of course. But when analyzing them and presenting them at trial, focus should be on common place observations, as opposed to "clues" and "points." Why is a field sobriety test important to driving? Not because the subject cannot stand on one leg for thirty seconds without putting their foot down or raising their arms. They are important because they are divided attention activities. What is driving? A divided attention activity. If a person cannot follow simple instructions and maintain attention to the task at hand when that task is a relatively easy one, how can they expect to maintain attention to the task at hand when driving a 2000 pound vehicle? Tell the story in terms of the observations made in the field sobriety tests. It paints the picture and tells the story much more vividly than talking about them in the standardized manner. |
| PREPARE, PREPARE, PREPARE |  Next come hearings and trial. The importance of preparation cannot be overstated. Make it a habit to prepare as early as possible. The prosecutor must first read and then re-read the case file. This should be a thorough evaluation of the overall strength of the case. The case review should include the following. Verify that you can prove each element of DUI beyond a reasonable doubt, and develop your case theory. Ensure the officer had legal justification for the stop of the vehicle and had probable cause to believe that each element of the offense was present. Identify witnesses whose testimony will be required to prove the elements of DUI. Identify evidence or other necessary relevant information that is mentioned in the reports, but is not in your case file. Each case is only as strong as the facts of the case, and the witnesses and exhibits that will establish those facts. Even strong cases may not always remain good; for instance, a necessary witness may refuse or become unable to testify. It is extremely important to know your community, your jury pool, and your judge. What will it take to convince your judge and jury that the defendant is guilty? What defense arguments are you likely to face? Some pieces of evidence do not, by themselves, make a case stronger or weaker. However, when viewed together, even seemingly innocent facts may add something to your theory of the case. Therefore, don't ignore any of the facts in the officer's report. THEORY OF THE CASE You must develop a theory of the case. The theory of the case is simply your cohesive approach to all of the evidence that explains what happened. You have to integrate the undisputed facts with your version of the disputed facts to create a cohesive, logical position. Your theory must remain consistent during each phase of trial. The jury must accept your theory of the case as the truth. Thus, you need both a factual and a persuasive theory of the case to intelligently select a jury, prepare your opening statement, conduct witness examinations, and prepare your closing argument.
After you do this, you should have a good idea of what evidence will be contested. You should gather as much additional evidence as you can, both direct and circumstantial, to bolster your weaknesses and attack the defendant's theory of the case. After you have reviewed all the evidence, you can formulate your theory of the case. Once you have your theory of the case, you should try to determine the defendant's probable theory of the case. This will help you prepare both your case in chief and to cross-examine defense witnesses. A theory of the case will also help you convey the picture to the fact finder. Once the judge or jury can picture the incident in their own mind, credibility and believability are assured.
 ULTIMATE GOAL
Remember your ultimate goal, to present the evidence, direct and circumstantial in such an overwhelming manner that the fact finder has no choice but to convict. |
| SEEKING BRIEFS, SCRIPTS, AND OTHER RESOURCES
Do you want to be famous, or at least have colleagues across the state sing your praises? I am actively soliciting quality briefs, pocket memos, scripts, predicate questions, and transcripts to build an impaired driving brief bank and resource library accessible to prosecutors on the web. My plan is to design a website for this type of resource. I need your help to fill it with the kinds of useful material that will help your fellow prosecutors show up to court prepared and perhaps just a bit less frenzied. If you've seen an issue, chances are someone else in the state will have to deal with it as well! Please send all submissions in electronic format with a subject line of "Resource Materials" to kstsrp@gmail.com for inclusion in the brief bank. We will send out an announcement when the brief bank if accessible. Until then, email me if you would like me to provide you with materials.
Web sites you should know:
For Training Requests or Technical Assistance on Impaired Driving Issues, please contact: Karen Wittman, 785.230.1106 or kstsrp@gmail.com
MADD SELECTS NEW CHIEF EXECUTIVE OFFICER
Mothers Against Drunk Driving (MADD) has selected Kimberly Simpson Earle, former Chief Operating Officer of Susan G. Komen for the CureŽ, as its Chief Executive Officer. As MADD celebrates its 30th Anniversary, Earle enthusiastically assumed the reigns to continue MADD's success in impaired driving advocacy and education. Check out their website for additional information: www.madd.org
PROSECUTORS WORKING WITH VICTIM ADVOCATE GROUPS
NHTSA recently published a monograph entitled Prosecutors Working With Victim Advocate Groups. The monograph provides guidance on how prosecutors can work with victims and victim advocacy organizations as they prosecute impaired-driving cases, and it provides information that victims and victim advocates should know about the how impaired driving cases work their way through the criminal justice system. This monograph was developed for NHTSA by Mothers Against Drunk Driving (MADD), with technical assistance and input from the National District Attorneys Association (NDAA) - APRI National Traffic Law Center. The monograph is available at http://www.nhtsa.gov/staticfiles/nti/pdf/811244.pdf.
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Case Updates
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IMPLIED CONSENT, PBT, PROTOCOL, MIRANDA
"Don't lie to me"-Solution changed every 7 days-DC-70 lost
State v. Sigg 231 P.3d 587, 2010 WL 2245601 (05/28/10)
***UNPUBLISHED***
Trooper arrived at the scene of a crash and spoke with the defendant who claimed she was the driver. While speaking with her the Trooper could detect an odor of alcohol coming from her. Later a Deputy arrived at the scene and was asked by the Trooper to investigate further the possibility of alcohol use by the defendant. The defendant denied to the Deputy any use of alcohol. The Deputy stated she should not lie to him and again asked her if she had been drinking. The defendant claimed she had one drink earlier. No Miranda was read to the defendant during this entire process. SFSTs indicated impairment and the defendant's BAC was .136. During trial the defendant argues her statement should be suppressed because she was in custody and no Miranda was read.
There are two things to look at to determine if custodial or investigative:
First: court looks at the circumstances surrounding the interrogation and Second: court decides whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation. Under K.S.A. 8-1611 and K.S.A. 8-1612(a) a LEO has a duty to make a detailed written report which would require speaking with the driver to get relevant information.
However, in this instance the Deputy had begun speaking to her as a suspect and not an ordinary witness involved in the crash. The court determined the questioning was interrogation and however the evidence was so overwhelming the use of the statements she gave was harmless error. The defendant also argued since the DC-70 that was read to her was lost or destroyed and not available to the State her breath test should be suppressed. The court noted in State v. Alfrey unpublished No. 93890 "there is no language in the statute requiring the State to establish by written documentation it complied with K.S.A. 8-1001. The defendant also argued the solution on the Intox 5000 had not been changed every seven days. The defendant failed to show any authority for the claim. The court also noted Lincoln v. Ks Dept. of Revenue to lay a foundation for the admissibility of breath test results, the KDHE is not required to establish certification of the standard solution used to calibrate breath testing equipment. There was an order by the court specifically not to mention the results of the PBT at trial. The Deputy was questioned about his reasons stated on the DC-27 form showing his belief she was under the influence. The Deputy stated "failed PBT" along with other indicators. There was a request for Mistrial which was denied. The Court of Appeals stated the mention of the PBT was inadvertent, the State did not follow up with any other questions about the PBT and no attention was drawn to the mistake. Conviction upheld. |
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SENTENCING-JAIL
Inpatient treatment facility designated by the Sec. of Corrections for substance abuse treatment
State v. Nisbeth 2010 WL 2670821 (2010)
***UNPUBLISHED***
During sentencing the judge noted a 12-month sentence however it noted the court would review after 90 days and may release defendant to attend inpatient treatment. The defendant requested a changed be made from jail to an inpatient treatment facility. The court found they had no jurisdiction to make the change and denied the motion. The Court of Appeals noted the defendant was only requesting that his mode of incarceration be changed from jail to an inpatient treatment facility. As long as the inpatient treatment facility meets the requirements of K.S.A. 8-1567(g)(2) the district court was authorized to place the defendant in that type of facility and that would not constitute a "modification" of the original sentence. There was a dissenting opinion: the statute does not authorize the court to defer that decision until sometime subsequent to the sentencing date.
IMPLIED CONSENT, ACCIDENT
Passenger admits driving and drinking
State v. Dillon 2010 WL 2503000 (2010)
***UNPUBLISHED***
Officers were dispatched to a crash. During the investigation the passenger indicated he and the defendant had consumed a couple of beers but that the defendant was not intoxicated. The defendant was transported to the hospital where the implied consent was read and agreed to by the defendant. BAC indicated 0.13. The District Court found the officer had reasonable suspicion to request a blood draw because of the information the defendant had been involved in a crash and the information provided by the passenger. The defendant appeals claiming LEO lacked reasonable grounds to request testing. The Court of Appeals looked to Poteet v. Ks. Dept. of Revenue 222 P.3d 564 (2010) in which medical personnel informed the officers of alcohol use by the driver. In this case Officers knew the defendant had been in a crash and the passenger indicated they had been drinking. These facts would lead any reasonably prudent law enforcement officer to believe drinking may have contributed to the crash. SFSTs were not warranted because of the driver's injuries and therefore there was reasonable information to request the test. Affirmed.
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| VIEW FROM THE FAST LANE
| | By Karen Wittman
785.230.1106
PRIMARY SEATBELT LAW
Hooray for Kansas!!! Clearly we have figured out that creating a primary seatbelt law will SAVE LIVES!! I encourage all you LEO's out there to look for people who are not wearing their seatbelts and stop them. Whether your write a ticket or not --the primary goal is educating the public that wearing your seatbelt is a priority in Kansas. Prosecutors-make sure you prosecute this offense and don't just "dismiss" the ticket.
TEXTING
Wow, what a giant step forward for traffic safety this legislative session. The law states no sending, reading or typing on your wireless device. There are a number of exceptions, however, keep your eyes out for this type of behavior. Remember, if someone is texting they must be "OFF THE REGULAR TRAVELED PORTION OF THE ROADWAY." Please make sure you ask a person about their wireless device usage when responding to a traffic crash.
Exceptions:
- LEO or emergency service personnel-acting within the scope of their job
- Anyone when stopped-off the regular traveled portion of the roadway
- Anyone who reads, selects or enters a telephone number or name for the purpose of making a phone call
- Anyone who receives an emergency, traffic or weather alert message
- Anyone who receives a message related to the operation or navigation of the vehicle
CHECK LANE I wish to thank Sheriff Bryan Whipple and Sgt. Jared Walker for allowing me to attend the first ever DUI check lane in Ness County. I was very impressed with the work done in getting this thing going and how smooth the checklane was executed. There were a number of Sheriff Deputies that volunteered to help with the lane and I wish to thank all of them for their hospitality and hard work. Keep up the good work, Ness County!!!
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