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Is there selective memory in the testimony of the officer investigating your DUI?

Posted by Craig Penrod | Jan 23, 2014 | 0 Comments

How does a law enforcement officer called to testify during a drunk driving trial recall every detail of a driving under the influence (DUI) investigation months earlier?

In Tempe, Phoenix or other communities in Maricopa County, it is questions like this one that make it important that you consult experienced Arizona DUI lawyers like those associated with the Law Offices of Craig W. Penrod, P.C.

When a law enforcement officer stops a motorist suspected of DUI, the investigating officer will immediately start to take note of a variety of observations, including:

  • Was there erratic driving and in what way was the alleged erratic driving observed by the officer?
  • What was the reaction of the driver to the red overhead lights atop the officer's vehicle?
  • How did the driver pull over to the side of the road and park their vehicle?
  • Was there a noticeable odor of alcohol on the driver's breath and how strong was the odor?
  • Could the odor of alcohol have come from the passenger in the vehicle?
  • Was the driver's face flushed with bloodshot eyes, thick speech and was the speech slurred?
  • How did the driver respond to questions and directions?
  • What were the answers by the driver to questions such as "Where are you going? What time is it? Have you been drinking? What? When? Where? How much?"
  • Did the driver have a current driver's license and a current vehicle registration?
  • Did the driver fumble with their wallet when pulling out their driver's license?
  • Did the driver stagger when they stepped from the car?
  • What, if anything, did the passenger say?
  • How was the appearance of the passenger?

As a follow-up to the questions above, there are the DUI field sobriety tests that may be conducted, including:

  • How did the driver perform in the walk-and-turn test?
  • Did the driver understand the instructions?
  • Did the driver start before he was instructed to begin?
  • How many steps were taken out?
  • How did the driver turn?
  • How many steps back?
  • Which, if any, of the 18 steps were off the line?
  • Where did they land?
  • Which, if any, were not heel-to-toe?
  • Was the driver using their arms for balance?
  • Did the driver say anything during the test?

In the horizontal gaze nystagmus (HGN) test:

  • Were there any problems with the right eyeball following the officer's pen?
  • What did it look like?
  • How many times was the HGN test given?
  • Did the onset of nystagmus take place before 45 degrees? At what degree?
  • Was the officer able to see the white of the eye at the extreme range of the eye?
  • Was there a distinct nystagmus at this extreme?
  • And, what about all these observations in the left eye?

Perhaps there were two or three other field sobriety tests prior to the arrest of the defendant and the breath test which was conducted at the police station:

  • What was the procedure used to administer the breath test?
  • What messages were displayed by the breath testing machine during preparation for the test?
  • Did the suspect say anything about a having medical conditions?
  • How many breath samples were captured?
  • Was there a blank test conducted prior to each sample test?
  • What were the readings of the blank tests?
  • What were the readings of the suspect's two samples?

To be clear, there are a vast number of potential pieces of evidence for the investigating officer to remember during the course of a properly conducted DUI investigation. Add to that, the officer may have conducted dozens of similar DUI investigations before and after the arrest in question. And, the investigating officer may be required to testify in trial about your investigation and the others. This testimony has to be done from memory and under an oath to tell the truth and nothing but the truth. How does the officer do it?

The typical law enforcement officer will write down all of this information in a report an hour or two after the arrest. This report is compiled using short-term memory and any notes written down in the field. Those field notes are usually written when it is dark and one hand is holding a flashlight. Normally, police policy requires that the officer's gun hand be free at all times. Thus, the officer's report could be only a couple of pages or it may run to five or six pages. The result is two basic problems.

How can the investigating officer remember everything that happened an hour or two later? Most DUI reports contain diagrams for the tests. How is this officer able to recall an hour or two later each of 18 steps of the walk-and-turn test and exactly where each foot landed in relation to the line, at what angle and whether heel-to-toe? This is just one of the tests. And, what about the driving pattern of the suspect, the symptoms exhibited by the suspect, statements by the suspect, the conduct of the suspect and all of the other pertinent details?

How can the investigating officer recall everything that happened in trial testimony five or six months later? The officer can't just read from the report. The officer has to testify to what he knows. In other words, the officer is required to independently remember everything that happened. But, here the law permits him to refresh his recollection by reading the report after he is asked a question. Theoretically, he can testify with a newly refreshed memory of the events. In reality, the officer is testifying to what was recorded in the report about his DUI investigation. In most trials, the investigating officer has refreshed his recollection prior to being called as a witness.

Most of the time the report compiled by the investigating officer only contains incriminating facts. The officer only recorded what was observed and heard, usually evidence that points to the defendant's guilt. Investigating officers, usually, do not bother to record any facts which might point to the defendant's innocence. The officer may not write down that the defendant experienced no trouble maintaining his balance or that his eyes were not bloodshot. Thus, during trial testimony the officer is incapable of testifying to anything which points to the defendant not being DUI. Basically, the officer is unable to refresh his memory about information that is not in his investigative report.

To be clear, the most important witness called to testify at a trial is not capable of recalling any evidence which may point to the innocence of the defendant.

It is important that your DUI legal situation should be handled by expert professionals with the experience possessed by the attorneys at the Law Offices of Craig W. Penrod, P.C. Our office offers free consultations for all DUI and criminal matters. Our Arizona DUI attorneys and Arizona criminal lawyers can provide you with the experience and knowledge needed for qualified representation. An experienced Arizona DUI lawyer is vital in DUI cases and our DUI attorneys set that standard. If you're in need of a criminal defense, our Arizona criminal attorneys are ready to assist you.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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