As far as the investigation is concerned, what are some common problems encountered when it comes to DWI's? What should I do to strengthen my case? What would help the prosecutor? Any advice would be much appreciated by this new cop.

That's probably waaaaay too broad of a question.

(shameless plug coming ...)

Your best bet would be to click over to our publications page ( http://www.tdcaa.com/publications/index.asp) and buy our book on DWI Investigation and Prosecution!

Since Shannon made a shameless plug, I feel I should top it. Look for local joint prosecutor/officer training in your jurisdiction courtesy of TDCAA funded by NHTSA through TxDOT. Tell your local elected prosecutors to contact Clay Abbott at TDCAA.

This is the entire goal of this new outreach program.

Since two lawyers have sidestepped your questions and left you with nothing of substance, I'll give you a few basic tips.

1. Have good, solid Probable Cause. Stopping someone for minor violations is okay (i.e., bad equipment, etc.), but don't ever stop someone without being able to articulate exactly why they were stopped.
2. Conduct SFSTs precisely according to your training. If you stray from any portion of your manual's instructions, a defense attorney will rip your case to shreds. (Example: HGN requires a certain number of "passes" in the initial phase. You must then hold the stimulus at certain locations for an EXACT period of time.)
3. Write good case reports. Be very detailed and include any comments made by the defendant during your investigation that would assist in leading a reasonable person to believe the defendant was intoxicated. (Example: A person begins saying the alphabet, stops midway through it, and says, "Officer, I just live down the road." A reasonable person (juror) will see that something is not right with the defendant. A person who is not intoxicated would simply recite the alphabet.)

Good luck to you, and I, too, recommend the DWI publication available through TDCAA. (Your local prosecutor will buy it for you.)

[This message was edited by Trooper on 12-07-04 at .]

In a DWI report or any other remember to include the bases (detail) which support your opinions. Conclusory statements are of no use to you later when you are preparing to testify. Rather than writing "the subject's balance was poor," tell us in what way her balance was poor; e.g., the subject stumbled getting out of the car or the subject placed his hand on the trunk for support after he stuck the bumper with his leg because he misjudged the length of the car.

Guessing at the answer on the witness stand is an invitation to disaster. If you don't know or are not sure, say so.

Don't come with a super-cop persona: shirt 1/2 size too small, Oakley sunglasses perched atop your head and a mouth full of gum.

Do take your report to the witness stand and refer to it when you must. Jurors understand a reasonable amount of double-checking. If a defense lawyer asks about the necessity of refreshing your memory, simply tell the truth: "I'm under oath and I want to make sure my testimony is accurate."

[This message was edited by BLeonard on 12-08-04 at .]

If you testify to matters not included in your report, or, if the defense asks for details that you couldn't possibly put into your report, remember that the report is to refresh your memory if questioned about an event you investigated. Don't let the defense pretend that your report is evidence in the case.

Videotape everything from the time you see the car swerving until you're done with him at the jail, and do not let him sit down at the jail. I have seen that in a few tapes where the defendant refused to blow and there he sits looking sober. At least if you have him standing up he may sway or stumble or need to lean on the wall for support.

Don't assume that only the SFSTs are worth videotaping, or that questions can only be asked as phrased on the TLE-1A and only after arrest & Miranda.

If you can record the defendant's behavior, comments, and demeanor on the way to the jail, it's often priceless. Something I like to see is when a drunk driver is left alone in the patrol car for a while while the officer attends to other details and leaves the VCR running. He will often curse, talk to himself, scream at the officer, etc. The absolute best is when you have a P.I. passenger under arrest as well (or for any offense, really) and you put them both in the car together, leave them alone, and let them talk to each other. After booking you can get some popcorn and watch the fun as they blame each other, talk about how drunk they are or how stupid they are, and so on. (This works very well in almost any arrest out of a car - especially with drug arrests and the like. You never know what admissions you'll get or what new evidence you'll learn about.) You may learn some new things about their opinions of you as well. And it all comes in at trial.

And, as others have mentioned on here, ask all the questions you want to while you are investigating the offense. Until the suspect gets arrested he is very unlikely to be considered to be "in custody" - so ask all about the drinks he's had, how buzzed he thinks he is, whether he thinks he ought to be driving, anything else you would normally want to ask. And you can sprinkle these questions in between the SFSTs if you want, especially if what he's told you he drank doesn't fit with the results you're starting to see.

Hope this helps!

I used to know a trooper who would get one whenver the suspect refused to blow. His standard line was:

"Your attorney probably told you not to blow. That's sound advice. But did he ever tell
you not to give a written statement?"

It worked like magic. Officers get written confessions on just about every other type of case, why not DWI's?

Before he is are under arrest, ask the driver the following.

"Mr. Driver, I want you to listen to me very carefully. I'm going to ask you to rate your own level of intoxication on a zero to 10 scale.

"On a scale of zero to 10, where zero means you have no loss of the normal use of your mental or physical faculties, due to drinking an alcoholic beverage, 1 means you have just a slight loss of the normal use of your mental or physical faculties, and 2 means a little more of a loss, and so forth, all the way up to 10, where you'd be falling over drunk, how would you rate your self right now?"

Almost all DWI's will rate their intoxication at over a zero, usually in the middle of the scale. Since the legal definition of intoxication is having lost the normal use of one's mental or physical faculties due to the ingestion of alcohol, etc., if they admit to a 1 or better they are making an admission that they are legally intoxicated.

If you have a dash mounted video, be sure this interview is taped. When the driver tells you his number, repeat it out loud, and indicate with you fingers the number he chose, so that the video clearly shows the jury what he rated himself as. For example: "I'm sorry, did you rate yourself a four?" (and hold up 4 fingers for both him and the camera to see). Get him to nod his head, or say yes loud and clear.

For the intoxication rating to be of much value, its important that you state it just as I wrote it. If you ask him to rate "how drunk you are" his answer will be subject to a much broader interpretation. Until you have it memorized, write the question down. Also, be certain to put his answer in your offense report, so your prosecutor knows he made a voluntary, pre-arrest, pre-custodial admission as to his intoxication.

my post was such an emblem of ignorance, I've deleted it

[This message was edited by BLeonard on 12-23-04 at .]

quote:

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Originally posted by BLeonard:
Won't most of those fromerly admissible defendant responses to officer questioning be inadmissible under _Crawford_?

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Crawford does not apply to statements by the defendant himself, as I read it. Assuming your statements are otherwise admissible (recorded in custody; not in custody otherwise, etc.) I don't think a Crawford objection will get him very far.

I've been trying to read every case in the Crawford watch section and I guess I reached overload. Of course the defendant won't be logding a VI amendment objection against his own out-of-court statements. A dunce cap for me.

As a defense attorney, that 1 - 10 made me cringe. It must be a good tactic then. The defendant better get a miranda warning!

You don't get a miranda warning on the side of the road during a DWI investigation, do you? It's a detention, not a custodian interrogation, isn't it?

Feel free to email me and I will send you the review I put together for any cop who testified for me in a DWI hearing/trial. Please include your real name, badge # and department.

thanks,
Georgette

georgettestovall @ yahoo.com

When I first began here in Fort Bend, that 1-10 question was a standard video room question. It rocks when they don't answer "0".

Other advice, if a defendant asks repeatedly at the station to use the restroom, let him. It looks particularly bad when the defendant asks, then begs, then pleads on video camera, before the video'd fst's, for restroom priviledges.

A jury once cut a defendant loose because they were so mad at the officer, who did not let the defendant use the restroom after three or four very polite requests, and then the defendant, as politely as possible, turned his back to the camera and went in the video room. The jury was not amused.