Errors in Police Procedure During a Criminal Case

There are a number of problems or issues with police conduct during investigations and arrests that we look for when someone is arrested for an OUI.

For example, if the police did not have a legally sufficient reason to stop your car, then your whole case could be dismissed. The prosecution may also think they have a strong case based on the way you were driving. For example, there may be allegation that you were speeding or swerving or using improper signals, or that you had some sort of delayed reaction to police turning on their lights. There could also be allegations that you were involved in an accident.

However, in cross-examination, I often bring up the things that you did right, and I can usually get the officer to admit to some or most of them. This tends to undermine their case. If the prosecution argues that your driving suggested impairment based on two or three factors, I can show 10 or 15 other factors that the police were trained to look for in an OUI investigation that you did correctly. I can then point out to the jury that you did such a large number of things correctly that an accusation of impaired driving doesn’t quite make sense. This usually casts pretty serious doubt on the prosecution’s case.

Even in cases where there are two or three minor traffic violations, I can usually put them in context as just that: minor traffic violations that don’t have anything to do with actually being under the influence. People get pulled over all the time for minor infractions, and most of the people who get pulled over aren’t under the influence. Even traffic infractions like swerving or driving over the yellow line, which is called a Marked Lanes Violation in Massachusetts, can be caused by other distractions. These infractions could be caused by the driver looking away to turn their radio dial or adjust their GPS, or even by talking on their cell phone or texting. If you do these things, you might be a distracted driver, but that doesn’t mean that you’re impaired by drugs or alcohol.

I routinely cross-examine officers at trial and get them to admit to other possible factors for their observations that they initially attribute to intoxication. For example, I cannot count the number of times a police officer says in their report that he or she believed the person was intoxicated because of “red eyes” or “bloodshot eyes” or “glassy eyes”. I think that most of us have red, bloodshot, or glassy eyes after midnight, and most of the time, the officer never asks the person about red eyes. They also never ask about allergies or lack of sleep or long work hours or long periods of driving or any other number of factors that could be related to having red eyes. The same argument can be made for other observations of intoxication, including the odor of alcohol, slurred speech, and nervousness. All of these factors don’t necessarily mean that a driver is under the influence.

I have found that police officers tend to ask the wrong questions when they’re questioning somebody at the side of the road on suspicion of OUI. More importantly, though, I have found that they fail to ask the right questions. When I cross-examine officers about these observations, you can potentially create a reasonable doubt by pointing out the questions that they’d failed to ask. For instance, if you are basing your OUI charge on an observation you made about the driver’s red eyes, did you ask them about it when you pulled them over? No? Why not? This line of questioning often leads to a not guilty verdict, because it casts doubt as to whether the officer is a reliable narrator.

In addition, unless you take a Breathalyzer test, the prosecution usually relies on field sobriety tests as their strongest evidence in an OUI case. However, field sobriety tests are inherently biased, and set up for the driver’s failure. I often demonstrate this fact to juries.

To illustrate the point, consider the fact that any police officer who administers a field sobriety test has been trained on how to take that test as well as how to administer and perform it. The officer has likely learned the details of the test in a comfortable indoor facility during the day, in a learning-conducive environment. They have probably performed or observed the test hundreds if not thousands of times after initially learning about it.

The average driver, on the other hand, is completely unfamiliar with the test, and has never had to do the sequence of actions included in the test in any context. It is simply not fair to expect people to perform field sobriety tests in the same way an officer expects, and it’s also not fair to expect them to perfectly execute the tasks when they know that if they make a mistake, they could be arrested.

There are, in fact, a number of factors that may cause someone to perform less than perfectly on one of these field sobriety tests. The average person is likely doing these tests in the middle of the night with an armed officer shining a flashlight on them. They are almost always outdoors, sometimes in conditions that are rainy or snowy or windy. They are also usually on the side of the road with cars flying by and lights flashing in their eyes. Police officers ask people to perform a test without any practice and only one give the person one chance to perform the test perfectly or it will be used as evidence of alleged intoxication. This is inherently not fair, and most jurors can understand that.

From the time you start a field sobriety test, you are set up to fail. I make sure to focus on this fact whenever field sobriety tests are used as evidence.

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