Sundahl & Associates, Inc.
DUI or DWI Investigations and Tips
May 19, 2011
By Shaun E. Sundahl, Private Investigator
Fact
Peace officers must have observed defendant 15 minutes prior to administering the breathalyzer device. The observation period is required because often times a defendant may throw up which will affect BAC levels and corrupt the presumption that the BAC level taken at the time of collection is similar to the BAC at the time defendant was driving. The observation must have occurred in the officers’ presence. Example: Defendant seated in the back seat while officer drives 15 minutes to the station satisfies the rule.
Truth
Most police departments have facilities located less than 15 minutes away. While processing a “deuce”, police slang for DUI, the officer is sometimes in and out of the patrol car or the officer may leave defendant in a holding facility while he looks for the breathalyzer machine, booking forms, or other forms of paperwork. When the officer loses observation, unbeknownst to him, the defendant may throw up; if he throws up food the rate of absorption may increase; therefore higher BAC and rebutting the presumption his BAC at the time of driving was similar to the BAC at the time the breathalyzer was administered. Under normal circumstances, BAC will decrease .01 every half an hour to an hour, depending on the rate of absorption and food intake is a substantial factor. In the absence of an improper search, the deuce may “consume” a hidden alcoholic beverage (tiny vile of vodka) and state his BAC went over the limit after custody. Any doubt on the officer’s inability to observe defendant might cast doubt in the Trier of Fact’s mind, that defendant drove under the influence, beyond a reasonable doubt.
Do not forget to ask for the breathalyzer printout. Currently, under DOJ grants, law enforcement agencies are provided with the breathalyzer called the Alcotest 7410. This machine may be used in the field and is transported in a grey-colored plastic container. The container has a small printer that prints the BAC level. There are many officers who lose this BAC printout. The printout contains a statement “observed for 15 minutes” and requests the observer’s initials. This printout is often lost as officers leave it in their uniform pockets, the printout blows away, or the officer forgets to place the printout in evidence or attach it to the report.
If the officer does not mention anything about the 15 minute observation period in her report or if the printout is missing, she will be less likely to account for the 15 minute period; thus doubt will be casted as to the reliability of the officer’s testimony.
FACT
You may read a police report as follows: “The area the FSTs (field sobriety tests or exercises) were used located on the sidewalk. The sidewalk used was well lit and straight and leveled. The suspect began the exercise. I observed the suspect sway to his left and right and raise his arms for balance.”
TRUTH
Most DUIs are captured during the night. Go back to the scene at night and evaluate it for any inconsistencies. The area in question might not be as described in the report. The officer is more concerned with his safety and the actions of the detainee rather than the scene description. Sometimes the officer will write in her report “the area was well lit.” To the officer, well lit might mean the beams of a police car spotlight and the distracting flashing blue/red lights. Put away the spotlights and you have a very dark atmosphere. During recent earthquakes and ground shifting you may want to doubt the portion of the officer’s report stating the sidewalk or other area was “straight and leveled.” Go Back to the scene and you might be surprised. Trust me; I have seen officer’s deuce suspects perform exercises in almost near darkness and I have seen them perform on raised driveways!
DUI ArrEst Reports
Fact
It is generally known that police reports are an accurate reflection of the officer’s state of mind at or near the time of the arrest if they are completed near the time of incident.
Truth
Wrong! If you are reading a police report and if you see a higher ranking officer arrive, this should be a red flag. You must really read these reports for omissions and errors since the officer was almost “made” to make the arrest. Beware some officers are lazy and love to “kiss off” DUIs and if they can’t “kiss off” the DUI, their report will show. Does the officer who has lack of sleep really want to bother?
You might be surprised to see how much of an influence a supervisor will have on the officer’s decision to make the arrest. Sometimes it is the supervisor’s decision even if the officer does not “feel” she has enough probable cause and this might show in the report. Often, police officers are intimidated by superior officers and are more inclined to make an arrest, especially a DUI. DUIs might take 2-4 hours to process for the average officer.
FACT
“Gee this report is well written, but I think I’m having déjà vu?”
TRUTH
Peace officers love the “copy and paste” feature of word processing. Find reports the officer has written previously and you will be surprised to find sentences verbatim. You will even see the same dates and times repeated on different reports; maybe the same suspect’s name in 3 out of 20 reports. I have seen it all! If the officer is a rookie, look at his training officer’s reports, or from other experienced DUI enforcement officers. Rookies love to copy other Rookie reports as well--honestly.
**All information presented here is under copyright by Sundahl & Associates, Inc. 2011. You may not reproduce or copy the information contained herein without the express permission of Sundahl & Associates. Shaun Sundahl (CEO) is a professional writer and you may employ his services from time to time. For permission please contact us by phone or e-mail. Thank you.**
Thanks again for visiting the information page for Driving Under the Influence (DUI or DWI) training tips for Citizens, Private Investigators, and Defense Attorneys!
