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Are police reports for DWI biased?

Reading a DWI police report can be very misleading. Focusing on what is written by the police officer will always paint a picture of an intoxicated person. A solid DWI defense can frequently be developed with facts not included in the police report but relevant to a thorough DWI investigation.

The National Highway Traffic Safety Administration (NHTSA) produces a manual that is used to instruct police officers across the country how to properly investigate DWI’s. The manual divides the DWI investigation into three phases. During each phase, the police officer is trained to look for and record “cues” of intoxication exhibited by the DWI suspect. The underlying theme in the investigation is that intoxication renders people unable to perform tasks that require them to divide their attention. The NHTSA manual identifies an exhaustive list of cues for the police officer to look for in each phase of the DWI investigation.

Phase One (Vehicle in Motion)

-Initial Observation (24 Cues)

When the officer is observing a DWI suspect driving a vehicle, he is trained to look for drivers that have:

1) Problems maintaining proper lane position,
2) Speed and Braking Problems,
3) Vigilance Problems, and
4) Judgment Problems

Each of the four areas are assigned specific cues listed in the NHTSA manual. The total amount of cues is 24.

-Stopping Sequence (6 cues)

Once the officer decides to initiate a traffic stop, he is trained to look for 6 additional cues that the NHTSA manual suggests an intoxicated driver will exhibit.

Phase Two (Personal Contact)

-Driver Interview (16 Cues)

Officers use their sense of sight, hearing and smell to detect as many as 16 cues of intoxication while initially talking to the suspect. It is during the driver interview that an officer may administer “pre-exit” sobriety tests including the countdown, alphabet and finger count tests.

-Exit Sequence (7 Cues)

If the officer determines that he is going to proceed to Phase Three of the DWI investigation, the driver will be asked to exit the vehicle. The officer is trained to look for 7 cues of intoxication at this stage.

Phase Three (Pre-Arrest Screening)

-Standardized Field Sobriety Tests (18 Cues)

During Phase Three, the officer will administer three Standardized Field Sobriety Tests. The manual lists the cues associated with each test and how many are required to detect intoxication. There are a total of 18 cues.

How to Illustrate Bias
As we have seen, there are 71 possible cues listed in the NHTSA manual indicating intoxication. A well practiced defense attorney will spend considerable time emphasizing what their client did right. If the police officer did not list a cue in his report, we must assume that the DWI suspect did not exhibit it. In Phases 1 and 2, there are a total of 53 cues. In most DWI cases, arresting officers will only list 2 or three cues in the initial observation period. Many reports do not include cues observed during the stopping or exit sequences. We can expect the 2 or 3 normal cues to be observed in Phase 2 (bloodshot eyes, slurred speech…) but usually all 16 are not present. A good attorney will develop their case with what is not in the police report. Juries will begin to see the picture not revealed by the officer. The defense attorney should assign percentages to their client’s “pass rate”. Juries are sure to appreciate that the defendant had a 94 percent pass rate in Phases 1 and 2. The weight given to the field sobriety tests may be diminished by pointing out the biased nature of the police report.

Posted on September 3, 2013 in Articles

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