Drug Recognition Expert

Penn State and Jerry Sandusky: flashback to Hollywood Blvd.

2011-11-16T16:06:00.000-08:00

As I watched the Bob Costas' interview of Jerry Sandusky (Penn State) , I had a flashback to an arrest I made in about 83 or 84 in Hollywood. I was walking a foot beat (most fun I've ever had in my life!) on Hollywood Blvd. when a young boy of about 10 pointed to a guy in an arcade and told me that the guy had touched his genitals. My partner and I went into the arcade, and after a brief struggle arrested the guy. Back at the station I interviewed our arrestee at length. He said, "You know what they do to people like me in prison." Of course, I pursued that line of thought - as in "What kind of person are you?" But the arrestee clammed up and refused to talk.

When I reported to work the next day, I was met by the legendary LAPD Lt. Higbie and his OIS team. It seems my pervert-arrestee hung himself - successfully - in the Hollywood Jail. (Investigators later found the typical stash of photos of little boys in the decedent's hotel room.)

Jerry Sandusky sounded just like my arrestee. Flat affect, little emotion, monotone, not fully admitting, but not fully denying either. If Sandusky were in jail, and I were the Watch Commander, I'd definitely make sure he was on suicide watch.

Legalize Marijuana article: My response

2011-11-03T07:35:00.000-07:00

The November 2, 2011 edition of Detroit's Metro Times contained an article by Larry Gabriel titled "Top Cop Changes his Mind." (http://metrotimes.com/mmj/top-cop-changes-his-mind-1.1226308) In the article, former Detroit Police Chief Ike McKinnon was quoted as saying marijuana should be legalized. In response to this article, I emailed the following letter to the Metro Times.

Dear Editor:

Former Detroit Police Chief Ike McKinnon said "I can't think of anybody who has died from marijuana." I also can't think of a case where somebody died from an overdose of LSD. The problem with marijuana, and LSD for that matter, is its effect on thinking and behavior. And it's this behavioral toxicity, such as impaired ability to pay attention while driving, that's the real problem with marijuana. The only reason marijuana is used in the first place is because it has a primary effect on the brain, the central nervous system. After all, people don't use marijuana because they like to have bloodshot eyes. The CNS effects include impaired attention, impaired depth perception, amotivation, and more. Knowing these effects, I certainly do not want my doctor, dentist, police officer, child-care worker or professor to use marijuana.

And frankly, to suggest that almost all the "problems and violence" associated with drug use result from the laws is indicative of pharmacological ignorance. Stimulants, such as cocaine and methamphetamine mimic the body's activation of the Sympathetic nervous system. It's this system that's responsible for the body's fight or flight response. In fact, they are correctly termed "sympathomimetics." These drugs cause the user to feel that they are in danger. But the user is responding to the drug, and not the environment. And people who feel threatened, feel paranoid, are dangerous and often violent. PCP ("angel dust") has similar effects.

Like Ike McKinnon, I also am a retired police officer. I also know and respect Dr. Michael Whitty. (In the interest of full disclosure, Mike Whitty was one of my U of D professors many years ago.) But when it comes to drug legalization, including that of marijuana, Professors McKinnon and Whitty are wrong.

Thomas E. Page, M.A.
Drug Recognition Expert Emeritus

Guard against Anchoring and Confirmation Biases

2011-10-30T11:21:00.000-07:00

I just came across two interesting articles that deal with bias in forming opinions and beliefs. It's a basic tenet of DRE training that an opinion should not be reached until the evaluation has been completed. Further, the DRE's opinion must be based on the totality of the the evaluation (and of the entire investigation for that matter).

The October 15, 2011 issue of Bottom Line/Personal contained a front page article about misdiagnoses in medicine. It struck me that DRE's face many of the same issues and challenges that medical doctors do in reaching opinions. According to the article, "Doctors routinely take a mental shortcut known as 'anchoring.' They quickly latch onto an idea about what's causing your symptoms." "Anchoring" is definitely something that DRE's have to guard against. For example, anchoring may be caused by what the arrestee says he/she has taken (true or not), what the arresting officer believes the person is under the influence of, or the substances and paraphernalia that were in the arrestee's possession. Guard against "anchoring" by asking yourself whether something else, including a medical condition, may be causing the signs and symptoms. Continually challenge yourself by asking yourself if there are alternative explanations. (As an aside, the article says that in US autopsy studies, "doctors misdiagnosed illnesses between 20% and 40% of the time.")

The July issue of Scientific American contained a column by Michael Shermer titled "The Believing Brain." Shermer wrote that "anchoring bias" occurs when one relies too heavily on one piece of information to make a decision. A DRE who decides that a person is under the influence of, say cannabis, because the person had bloodshot eyes, is an example of "anchoring bias." Shermer also writes about another type of relevant bias called "confirmation bias," in which one seeks and finds "confirming evidence in support of already existing beliefs and ignoring or reinterpreting disconfirming evidence." Sort of like reaching an opinion first, and then gathering evidence to support the opinion.

The best defense against bias in your DRE opinions is to continually remind yourself that there could be alternative explanations for each sign and symptom, and to not reach a final opinion until the entire evaluation has been completed.

Bureau of Justice Assistance Monograph on DRE, 1989

2011-09-23T14:58:00.000-07:00

In cleaning out some file cabinets, I stumbled across a U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance Monograph titled "Drug Recognition Program," dated April 1989.

On the cover page, Charles P. Smith, the Director of the BJA, wrote in part:

"The Drug Recognition Process is a non-intrusive, standardized and systematic method of examining a person suspected of impairment due to alcohol and/or other drug abuse. Because of its promise for local law enforcement, the Bureau of Justice Assistance (BJA) has supported the efforts of the Department of Transportation's National Highway Traffic Safety Administration to accelerate pilot site demonstrations of this new technology."

The twenty-four page document provides a nice history of the development of the DRE program. It points out that the results of the Johns Hopkins Study (1984) and the LA Field Validation Study (1985) prompted NHTSA to work with the LAPD to develop a standardized curriculum for DRE training. It identifies the four pilot sites that were selected to establish DRE programs based on the LAPD program: metropolitan Phoenix, Denver and Boulder, Colorado, Nassau County, New York, and Virginia Beach, Virginia. Three additional pilot sites were selected in 1988: Indiana, Utah, and an expansion of the Los Angeles program to the Ventura County Sheriff's Department, the Long Beach Police Department, and agencies in Yolo County. "The California site is an expansion of the original Los Angeles program..." Thus, this Federal Monograph clearly recognizes the fact that the Los Angeles DRE program was recognized by the Federal Government as a useful tool in 1987. "The Drug Recognition Program will prove useful in many jurisdictions. It is an effective means of dealing with drivers who imperil others by getting behind the wheel while incapacitated by drugs."

As of the publication of this document, April, 1989, the program was called the "Drug Recognition Program." In subsequent years the program became known as the "DECP."

Support for tough sentencing of "first-time DUI offenders"

2011-07-25T14:04:00.000-07:00

On July 24 and 25, 2011, the Detroit Free Press published a two-part series on DUI-sentencing disparities in the Detroit, Michigan area. The July 25th article highlighted the tough sentencing practices of an Oakland County (just north of Detroit) judge. Here is a link to that article.

http://www.freep.com/article/20110725/NEWS06/107250334/Part-2-Judge-among-toughest-nation-1st-time-DUI-offenders?odyssey=mod|newswell|text|FRONTPAGE|s

I support tough sentencing for even so-called "first time" offenders. As law enforcement officers know, rarely is a DUI driver caught the first time they drive while under the influence. Here is the letter I sent to the Detroit Free Press editor in support of the Judge's tough sentencing practices:

Dear Editor:

I applaud 48th District Court Judge Kimberly Small's practice of jailing most so-called "first-time DUI offenders." If every judge had a similar practice, those who drink or do drugs and drive would get the message that DUI is simply not acceptable. That if you drink or do drugs and drive you will be severely sanctioned. That changes the message from "try not to drink too much and drive," to "you will go to jail if you drink and drive." Defense attorney Hall damns Judge Small with faint praise when he says "It's so she can say she's tough on crime." Unfortunately, Hall's statement suggest that DUI isn't a "real crime." I hope that other judges, including those south of 8 Mile Rd., will realize, as Judge Small has, that one doesn't have a right to endanger innocent citizens by drinking and driving.

Thomas E. Page, Detroit

On July 31, 2011, the Detroit Free Press published the following edited letter:
I applaud 48th District Judge Kimberly Small's practice of jailing most so-called first-time DUI offenders. If every judge had a similar practice, those who drink or do drugs and drive would get the message that DUI is simply not acceptable -- that if you drink or do drugs and drive you will be severely sanctioned.

That changes the message from "try not to drink too much and drive" to "you will go to jail if you drink and drive."

I hope that other judges, including those south of 8 Mile Road, will realize, as Judge Small has, that one doesn't have a right to endanger innocent citizens by drinking and driving.

Thomas E. Page, retired from the Los Angeles Police Department, Detroit

Neudexta (Avanir): newly approved drug contains DXM

2011-06-23T10:10:00.000-07:00

For over 20 years, I have subscribed to The Medical Letter on Drugs and Therapeutics. This nonprofit publication does not accept advertising. Its subscriber base is primarily medical doctors. Occasionally, I'll cite a Medical Letter article (www.medicalletter.org) on new drugs.

The June 13, 2011 issue has an overview of newly FDA- approved Nuedexta / Avanir. This new drug contains dextromethorphan and quinidine sulfate, and is indicated for the oral treatment of pseudobulbar affect in patients with ALS (Lou Gehrig's disease) and multiple sclerosis. "Pseudobulbar affect, also known as pathological laughter and crying or emotional lability, is common in ALS and MS." Some of the side effects noted in The Medical Letter of this drug combination are nausea, headache, diarrhea, fatigue and dizziness.

Remember to interview your suspect/arrestee about medical conditions, and the treatment they are receiving for the condition (s). Better to learn during the investigation phase, rather than be surprised in court!

More on the importance of Report Writing

2011-06-23T09:47:00.001-07:00

The June, 2011 issue of The Thin Blue Line, the publication of the Los Angeles Police Protective League, contains a nice article by Detective Tyler Inzen. Detective Inzen emphasizes that "You can only control what you can control." How true. One can't fix all the wrongs of society, or stop all the crime in one's community. But as a police officer, you can control what you put down in writing. And as Gary Ingemunson has pointed out in The Thin Blue Line, short of testifying in court, writing a report may be the most important thing an officer does. As I have emphasized in prior posts, be scrupulously accurate and honest in all of your reports. Thoroughness must preempt brevity.

Cell phones and "behavioral toxicity"

2011-06-16T06:36:00.000-07:00

Neil Rubin, a Detroit News columnist, wrote an article on cell-phone dangers that was published in the June 16, 2011, edition of the paper. Mr. Rubin pointed out that there really is no proof of danger from cell phone radiation. As I read the article, I thought of a term in the drug abuse field that is relevant to cell-phone dangers: "Behavioral Toxicity." I e-mailed the following letter (in part) to Mr. Rubin.

There are few, if any, documented cases in which an individual has died due to an overdose of marijuana (spelled "marihuana" in Michigan's legal code) or LSD. However, if an LSD user thinks he can fly like Superman and jumps off the Penobscot Building, that person will assuredly die. And if a driver who has used marijuana doesn't "think" to stop at a railroad crossing and strikes a passing train, that person will also die. Similarly, the cell phone radiation may not cause brain tumors. If a driver, however, talks on a cell phone (and/or texts) while driving, that person has a much higher liklihood of being involved in a crash, possibly a fatal one. This is an example of what can be called "behavioral toxicity."

Your report must match the video!!

2011-02-23T12:04:00.000-08:00

This is an update to this incident. On March 17, 2011, Sergeant Maniere pleaded "no contest" to the charge of filing a false police report. He stated that he still hopes to obtain another job in law enforcement. The original post follows.

As we approach the 20th anniversary of the so-called Rodney King incident, we will certainly be bombarded with media retrospectives on the significance of the video-taping of King's arrest. Since March of 1991, audio and video recordings of police-citizen encounters have become ubiquitous. As I teach officers, you must assume that everything you do is being recorded. And that defense attorneys, and even Internal Affairs investigators, may pore over your report to see if every detail matches the recording of the incident or encounter.

Today's (February 23, 2011) Detroit News reported on the firing and probable prosecution of a suburban Detroit patrol sergeant. Apparently, on two separate occasions, the sergeant's written report, that detailed the seizure of drugs from motorists, did not match the video recording of the incidents. In fact, in one of the cases, the sergeant was accompanied by a television reporter with a camera. The reporter's camera recorded the finding of drug's in an arrestee's vehicle. I know it's hard to believe, but this sergeant, even though he knew he was being filmed by a reporter, wrote a report that was at odds with what had occurred. According to a television news report, the primary issue in one of the cases was that the recording showed that the drugs were in a closed glove box. The sergeant's report said the drugs were in plain view on the vehicle's front seat. The newspaper report follows this blog entry. Be scrupulously honest in every report. And if your partner writes the report, and puts your name on it, it's your report too.

Discrepancies in arrest reports, video cited in Warren cop's firing
Decorated veteran patrol sergeant may face criminal charges

Christine Ferretti / The Detroit News
Warren — Criminal charges are being evaluated for a decorated road patrol sergeant who was fired over discrepancies between written reports and patrol car footage involving two separate traffic stops that resulted in drug-related arrests.
Warren Deputy Police Commissioner Louis Galasso said Sgt. Tim Maniere was terminated Friday following an internal investigation the department launched in January.

Galasso said internal affairs uncovered two separate cases last year where Maniere's written reports didn't match patrol cruiser video.
Each incident resulted in felony drug arrests.
"The cases had nothing to do with importing or planting any type of narcotic or drug," Galasso said. "However, it did have something to do with the evidentiary steps that would follow a normal search of a vehicle. The steps were improper."
Findings from the department's internal investigation were turned over to the Macomb County Prosecutor's Office on Tuesday for review.
A telephone number listed for Maniere was disconnected.
Galasso said the investigation began after Maniere failed to appear for an evidentiary hearing in Macomb County Circuit Court related to one of the arrests in question. A TV Warren journalist was doing a ride-along with Maniere on the July evening when a suspect was arrested on a felony narcotics charge. Galasso said footage from the patrol car and video captured by the television crew was to be viewed at the hearing.
Maniere's absence led to the case's dismissal.
Galasso said Maniere was placed on paid administrative leave several days later while officials looked into the claims the video footage didn't match his written report. Galasso said a second arrest conducted by Maniere in mid-August appeared to have similar circumstances. That case was handled through a plea deal, he said.
Galasso said the incidents have shocked and saddened the department.
Maniere, who'd been a supervisor for about three years, has always been an employee in good standing, earning awards and commendations, Galasso said.
"He was a very hard-working, dedicated officer. It was a very difficult separation that we had," Galasso said of the 15-year veteran. "This guy really was not the type of officer that did anything for personal gain or satisfaction. It was just a certain zeal that he had for law enforcement. Unfortunately, he may have been a little too overzealous."
The Warren Police Command Officers Association hasn't decided whether to challenge Maniere's dismissal.
cferretti@detnews.com
(313) 222-2069

Effective Courtroom Testimony, Part 4

2011-01-24T11:21:00.000-08:00

Credibility: What you say and how you say it!

It's a fact of human nature that the veracity, the truthfulness of a statement, is assessed by not only listening to (or reading for that matter) words, but by evaluating the individual's non-verbal clues. These non-verbal clues include the person's appearance, such as the clothes he/she is wearing, and the person's demeanor, which includes their body language. If during the course of our duties we ask a suspect if he/she has any drugs in his/her possession, we watch very closely, even below the level of consciousness, how the person responds. A "no" by the person isn't accepted as fact! Even the United States Congress interviews witnesses in person, rather than reading written interrogatories. Physicians want to see the patient, rather than just reading the chart.

And jurors, since they are human beings, will judge your credibility, your believability, not just on what you say on the witness stand, or what you wrote in the report, but on your appearance and demeanor. You should strive to use this fact to enhance your credibility.

As the dictum goes, first impressions are lasting. Even before you have taken the stand, the jury is evaluating your credibility, your fairness, your professionalism. Here are some basic guidelines for appearing in court. Some may seem quite humorous, quite self-evident. But trust me, officers do these things!

I know that different jurisdictions have different policies regarding courtroom attire, particularly regarding duty uniforms. I certainly do not intend to conflict with your department's policy. Wear what your department says to wear.

Regardless, however, I suggest you think of appearing in court as appearing for a promotional interview. If you wouldn't wear something for the interview, then it's probably not a good idea to wear it in court. Generally, dress conservatively and be well-groomed. Avoid fancy and ostentatious jewelry, big belt buckles, cowboy boots (unless you are in Texas of course!), NASCAR-style logo wear, and dark sunglasses. Avoid lapel pins and tie bars , such as those depicting pigs, handcuffs, and religious or political symbols, that may distract from your credibility. Finally, avoid jangling keys and jangling coins in your pockets.

In a future blog entry I will discuss the importance of your demeanor on the witness stand itself.

Effective Courtroom Testimony, Part 3

2011-01-05T18:58:00.000-08:00

The Pre-Trial Conference

Over the years, I've conducted a number of informal surveys of prosecutors and officers regarding testifying in court. The number one item on each group's "wish list" is for a bona-fide pre-trial conference. By "bona-fide," I mean an actual face-to-face sit-down in advance of the anticipated testimony date, and NOT the all-too-common two-minute discussion in the courtroom itself.

At the pre-trial conference, the parties should thoroughly discuss all aspects of the case. The officer should point out possible weaknesses in the case, including omissions, errors, and inconsistencies in the report. The prosecutor may identify some potential defense challenges,including challenges to the officer's credibility. The pre-trial conference is also an opportunity for the parties to build rapport and trust.

The prosecutor prepares the witness-officer for the trial by providing an overview of the direct examination process. Usually, the prosecutor will remind the officer to avoid jargon and slang while testifying, to maintain a calm demeanor (particularly when challenged by the defense), not to volunteer information when on the stand, to create charts or other visuals, and pick-up evidence as needed.

The pre-trial conference is a perfect opportunity for the officer to provide the prosecutor with an up-to-date copy of his/her curriculum vitae (resume), including a one-page summary.

Finally, it's a common tactic for a defense attorney to ask the officer if he/she had a pre-trial conference with the prosecutor. Do not hesitate to honestly answer this question. There is nothing wrong, and everything right, with having a pre-trial conference with the prosecutor. In fact, jurors expect it.

Effective Courtroom Testimony, part 1

2010-12-21T15:00:00.000-08:00

Courtroom as Classroom

In my introductory post on this topic, I mentioned that the officer is a witness-teacher in court. To understand this concept, it's helpful to think of the courtroom as a classroom. And in this "classroom," the witness is the teacher. The "students" make up the jury. But unlike a college class that students enroll in, these "students" didn't ask to attend this "class." They were summoned to attend: told to set aside their work, their plans, in effect, their lives. Further, these students may be prohibited from asking questions of the teacher. They may even be told to not discuss what they learn from the teacher. In this courtroom as classroom analogy, the prosecutor is the designated student. It's almost as if the juror-students selected someone to ask all the questions of the teacher that they can't ask. As the designated student, the prosecutor asks questions from the students' perspective, sometimes asking the teacher-witness to explain. For example, "Officer, you used the term 'miosis.' Please explain what you mean by that term." What, then is the role of the defense attorney. Well, to a large degree, the defense attorney wants to testify! But he/she can't do that: only the witness can testify. So the defense "testifies" by making statements, and then asking the witness to agree with him/her. That's what we call leading questions. Example: "Officer, you don't know what my client's normal blood pressure is, right?" The judge is the last part of this courtroom as classroom analogy. The judge makes sure all the rules are followed, and decides disputes. The judge may even mete out discipline when the judge's rulings are challenged. So the judge can be thought of as a sports referee, or possibly as a school principal.

Thinking of the courtroom as a classroom provides some interesting challenges, and opportunities, for the officer-witness. I will discuss this in more detail in future posts.

Effective Courtroom Testimony, Introduction

2010-12-19T15:25:00.000-08:00

Testifying in court is stressful, as it should be. In my opinion, there are three primary reasons that testifying is stressful: (1) testifying is a form of public speaking; (2) for a police officer, testifying is in many ways the opposite of what he/she does every day - take control. In court, the officer cedes control to the attorneys and the judge, and primarily just answers the questions; and (3) testifying is serious business. A person's freedom may be at stake, and justice for the victim may depend upon the testimony.

I've heard many famous entertainers explain that they still get "butterflys" before taking the stage, even though they may have sang the same song thousands of times. "Butterflys" in the stomach is a symptom of stress - good stress. If you don't feel some stress before taking the witness stand, perhaps you're not taking your responsibility as seriously as you should.

In future entries, I will discuss many different aspects of testifying in court, including the various types of questions that will be asked. I will also provide some "tips" in order to help you be a better communicator, actually teacher, in court.

Effective Police Report Writing: Summary of 10 Tips

2010-10-27T12:46:00.000-07:00

Here is a summary of the 10 Effective Police Report Writing Tips I have discussed in this blog. I occasionally will add to this compilation. In future blog entries I will provide similar suggestions regarding testifying in court.

Effective Police Report Writing Tips

#1: An officer is known by his or her reports.

#2: Juries want corroboration of the officer’s observations.

#3: Put something unique about the suspect/arrestee in your report.

#4: The Prosecutor reviews your report over a cup of coffee.

#5: It's impossible to accurately predict which case will go to trial.

#6: Spelling Counts!

#7: Statements are not necessarily admissions. Alibis aren't necessarily true.

#8: Avoid conclusionary language. Rather, describe thoroughly.

#9: Each arrest, each suspect, and each report is unique.

#10: Anticipate defense challenges and preempt them in your report.

Effective Police Report Writing, Tip #10

2010-10-27T12:31:00.000-07:00

Anticipate defense challenges and preempt them in your report.

Anything you don't put in a report provides an opportunity for the defense to argue an alternative reality. In DUI cases, common defenses include: rising alcohol, a different driver (the passenger was driving), distractions during the Field Sobriety Testing phase, mouth alcohol, and more. A thorough report will preempt many of these typical challenges. For example, if the individual's alcohol level was rising, the person should be more impaired at the police station than at the arrest scene. If you believe "rising alcohol" may be a defense, then document how the individual is sobering up. If you anticipate an "It wasn't me driving" defense, document why you are certain that no one else was driving.

A comprehensive, accurate, and thoroughly descriptive report (CAT) that anticipates defenses will prevent the defense from filling-in missing details in your report with a different version of the event.

Effective Police Report Writing, Tip #9

2010-10-22T06:23:00.000-07:00

Each arrest, each suspect, and each report is unique.

Just as no two snowflakes are identical, no two police reports, even for the same crime, should be identical. Not only do the names, locations and times change from investigation to investigation, the signs and symptoms exhibited (such as in a DUI/DRE case) by an individual will differ. In the old days (yes, I was there) police reports were handwritten or typed. With the advent of word processing computer programs in the 1980's, some officers were tempted to submit reports in which only the names, locations, and times were altered. Every DUI arrest read the same way; every DUI arrestee exhibited exactly the same signs and symptoms. If your reports are of this "rubber-stamp" variety, it's only a matter of time before a defense attorney will use this to challenge your credibility in court. Los Angeles Deputy City Attorney Rosemary Chavez, an ardent supporter of DUI and DRE officers, once remarked that (as the rock group Aerosmith sang) "the Dude looks like a lady." Rosemary was referring to her observation that rubber-stamped word processed reports sometimes confuse the gender of the arrestee - that John is all of a sudden referred to as Denise. Write your reports to enhance your credibility, not harm it.

Citizen Videos of Police

2010-10-15T06:54:00.000-07:00

Though not directly related to DRE, this is certainly relevant to the work of police officers. I frequently teach in my courtroom testimony and report writing classes that officers should assume everything they do is being recorded. In the late 1980's and early 1990's, a former Hawthorne, CA sergeant, Don Jackson, video-taped officers during encounters. He was very good at inciting officers into conducting inappropriate searches and more. Today, Jackson, now known as Diop Kamau, runs the PoliceAbuse.com website that incorporates videos of encounters. Kamau's activities were highlighted in a USA Today front page feature story on October 15, 2010.

In about 1990 I encountered Jackson during an LAPD "Operation Hammer." I have not seen the video of this event until today. He knew the law, and nearly induced the officers into conducting an inappropriate, and possibly illegal, search. The officers fortunately came to me first asking for permission to demand ID of all the occupants of Jackson's vehicle. After conferring with the officers, it was clear to me that they did not have legal grounds to demand the ID. I defused the situation, and we all went on our way. It was clear - based on subsequent "stings" by Jackson, that I possibly saved these officers' reputations and careers. Within a few weeks of this incident, Jackson was stopped by officers from a different Southern California police department. Jackson knew exactly what buttons to push, and the officers arrested Jackson. Unfortunately for the officers, their report did not match the video that Jackson had secretly recorded. Here's a direct link to the video of my encounter with Jackson.
http://www.youtube.com/watch?v=S6KK2zpF8rc&feature=player_embedded

Effective Police Report Writing, Tip #8

2010-10-01T08:19:00.000-07:00

Avoid conclusionary language. Rather, describe thoroughly.

Officers frequently use the term "paranoid" to describe an individual who is under the influence of certain drugs, particularly cocaine and methamphetamine. Well, unless you have performed a psychiatric assessment of the person resulting in a diagnosis of paranoid schizophrenia, avoid using the term "paranoid" in your report, as well as on the witness stand. Paranoia is a very specific mental disorder, characterized by delusions of persecution.

Rather, thoroughly describe what is was about the individual's appearance and behavior that lead you to conclude that the person was paranoid. For example, the individual may be fidgeting, moving his/her head back and forth to see if anyone is behind them. The person may express feelings of irrational fear. The person may have a "case of the windows," and may express the thought that imaginary people are watching him/her. The reader of the report, including the judge and jury, may conclude from the descriptions of the person's behavior that "Wow, it sounds like he was paranoid."

"Following too close" is another frequent example of conclusionary language. Explain why and how you determined the person was "following too close." After all, you want others to agree with your conclusion.

Effective Police Report Writing, Tip #7

2010-09-20T07:09:00.000-07:00

Statements are not necessarily admissions. Alibis aren't necessarily true.

It certainly comes as no surprise to police officers that suspects, arrestees, and defendants don't always tell the truth - even to the police. Sometimes, individuals will falsely "admit" to using something to a DRE, such as marijuana, even though the individual is clearly under the influence of a different type of drug. The suspect might believe that "admitting" to marijuana use (after all, it's medicine, right?) doesn't look as bad as admitting to PCP or crack use. Rather than writing in a report that "The suspect admitted to using marijuana," the officer should write that the "Suspect stated he used marijuana." Saying the suspect admitted to something suggests that the officer believed the person. The same principle applies to other investigations, including crash reconstructions. For example, I recall a report in which the officer wrote "The driver caught his left foot between the brake pedal and the accelerator." Well, there was no evidence of this other than the suspect's self-serving words. The real reason for the crash was the suspect's methamphetamine use. In this case, the officer would have been better off, and more accurate, by simply stating that "The driver claimed that he caught..."

LAPD celebrates 100th anniversary of first policewoman

2010-09-13T09:41:00.000-07:00

We celebrate Patricia Berry Russell!

The LAPD is currently celebrating the 100th anniversary of its first policewoman. One of the pioneers of woman in law enforcement is our own Patricia (Patty) Berry Russell. This picture is of Patty at her police academy graduation in 1967. In the 1970's, Patty was required to go back through the police academy in order to become certified to work the field as an LAPD Police Officer. For much of her career, Patty worked traffic enforcement/accident investigation. Early on, she became deeply involved in the Department's Drug Recognition Program. In fact, Patty was one of the four LAPD officers who participated in the landmark 1984 Johns Hopkins study. In addition, the pupilometer, that included the HGN angle chart, was developed and marketed by Patty. Many of us remember the early pupilometers as the "Berry Good Ruler." Patty retired from the LAPD in 1992. Her last assignment was as Training Coordinator for the Drug Recognition Expert Unit. Without Patty's contributions, the DRE program might never have reached the level of professionalism it has.

TIME report on Prescription Drug Problem

2010-09-09T07:00:00.000-07:00

The September 13, 2010 issue of TIME magazine contains an interesting overview of the growing problem of prescription drug abse. "The New Drug Crisis: Addiction by Prescription," by Jeffrey Kluger, says that the current prescription drug use epidemic, called "pharmageddon" by one expert, began in the 1990s with revised policies of the Joint Commission on the Accreditation of Healthcare Organizations. The new JCAHO policies encouraged health care professionals to aggressively treat pain. At the same time, big drug companies began introducing new opioids for the treatment of pain. The third leg of this proverbial three-legged stool was the Federal Trade Commission's determination to allow advertising directly to consumers. Anyone who watches the nightly network news is bombarded with drug advertisements that end with "Ask your doctor if this drug is right for you."

The article also gives a very nice overview of Oxycontin's effect on the brain:

"The brain loves Oxycontin - the way the drug lights up the limbic system, with cascading effects through the ventral striatum, midbrain, amygdala, orbitofrontal cortex and prefrontal cortex, leaving pure pleasure in its wake. What the brain loves, it learns to crave."

According to the article, annual U.S. opioid consumption per person has increased from 73 mg in 1996, to 329 mg in 2006.

Historically, U.S. opiate epidemics are followed by stimulant epidemics. I wonder what the future holds for us.

Effective Police Report Writing, Tip #6

2010-09-03T09:20:00.000-07:00

Spelling Counts!

Professionals should know how to correctly spell and pronounce the technical words of their profession. You wouldn't give much credibility to a physician who incorrectly spelled body parts, nor would you give much credibility to a scientist who couldn't pronounce scientific terms. To a large degree, the prosecutor, the defense attorney, the judge and even the jury judge you by not only the completeness of your report, but also your ability to write clearly and correctly. The defense will often highlight errors of spelling in reports by enlarging the report, and having the officer circle the errors. As an example, I saw a defense attorney do this by having the DRE officer highlight in red the "word" Cannabus on the report. I guarantee you that the DRE will never forget that Cannabis is NOT a bus!

Defense attack on lack of injured in 173 Case Study

2010-08-25T13:33:00.001-07:00

Recently, a Drug Recognition Expert officer was questioned in a deposition about aspects of the Los Angeles Field Validation Study, commonly referred to as the 173 Case Study. (Since this case is on-going, I will not divulge the specifics of the case.)

In this case, the defendant was injured, resulting in the DRE not being able to administer the complete 12 step evaluation. Nonethess, the DRE was able to form an opinion which was subsequently supported by toxicology. The defense challenged the DRE's testimony by pointing out that injured suspects were excluded from the 173 Case Study. In addition, the defense also pointed out that only blood was taken in the 173 Case Study. The prosecution expects the defense to attempt to have the DRE testimony excluded at trial, by arguing that the DRE evaluation was never intended to be performed on injured suspects.

In 1985, I was loaned to the LAPD's Traffic Coordination Section for the specific purpose of assisting in the development of the protocol (the steps) and the training of the officer-participants in this study. The Los Angeles Field Validation Study (later known as the 173 Case Study) was designed to assess the abilities of DREs, in a field (as opposed to laboratory setting) setting, using a step-by-step protocol, to determine if an individual was under the influence of drugs, and the specific category (s) of drug (s). The toxicological portion of study's design required blood draws. The sponsors of the study, primarily NHTSA, but also the National Institute on Drug Abuse, and researchers, decided to to use only blood as the toxicological confirmation specimen. (Ideally, if cost, time, and logistics weren't factors, we would also have taken urine, saliva, and even hair samples.) The sponsors and researchers also wanted to limit any interference with this purpose. Thus, we needed people who could perform the DRE evaluation without delay. Injured suspects obviously needed to have their injuries treated, often resulting in a delay, as well as compromised ability to perform some of the psycho-physical tasks. Also, as part of treatment for injuries, patients often are given other drugs.

No study can study everything. Although the 173 Case Study was limited in its scope, as all studies are, it was never intended to suggest that DRE assessments shouldn't be done on injured crash victims. Two additional points: First, the expertise of DRE comes from the trained officer, NOT the procedure (12 steps). The 12 steps are a tool to help the officer reach his/her opinion. Secondly, as I teach, testify, and have written, a DRE may be able to reach a supportable opinion of drug-influence even though the individual may not have been able to perform all parts of the evaluation. However, this NOT does entitle the officer to have a so-called lower standard of evidence to reach his/her opinion.

Finally, I suggest that all DREs reaquaint themselves with the 173 Case Study before they testify.

New stimulant being marketed directly to the public

2010-08-23T12:46:00.000-07:00

The Medical Letter on Drugs and Therapeutics, published by The Medical Letter, Inc., of New Rochelle, New York, is a twice monthly nonprofit publication. I rely (and have relied for about twenty-five years) on this publication for accurate and unbiased information on pharmaceuticals.

The August 9, 2010 issue reports that the non-amphetamine stimulant armodafinil (brand name Nuvigil by Cephalon) is being promoted directly to to the public for excessive daytime sleepiness related to shift work. Armodafinil is related to modafinil (Provigil), which was approved by the FDA in 1988 for treatment of excessive sleepiness associated with narcolepsy. Modafinil is also used to treat excessive sleepiness caused by other conditions. There have been media reports that modafinil is being used by college students to stay awake, as well as by military personnel to endure lengthy missions.

Interestingly, The Medical Letter reports that the mechanism of action of armodafinil or modafinil to counter excessive sleepiness is unknown.

In clinical studies, common adverse side effects include nausea, dizziness, insomnia, and headache.

The Medical Letter cites reports of euphoria and illicit use of modafinil by students. The Letter states that armodafinil and modafinil increase dopamine levels in the brain, including the nucleus accumbens, and that drugs that increase dopamine in this part of the brain have a potential of abuse.

Armodafinil is a Schedule IV drug.

Frankly, I expect a certain portion of the population to seek out armodafinil and modafinil for not only their therapeutic benefits in treating excessive sleepiness, but for euphoric effects. After all, as DREs know, what can be used, can be abused.

Effective Police Report Writing, Tip#5

2010-08-23T12:07:00.000-07:00

It's impossible to accurately predict which case will go to trial.

Los Angeles Deputy City Attorney Rosemary Chavez has prosecuted Driving Under the Influence of Drugs defendants for twenty years. She also teaches in the LAPD's Drug Recognition Expert school, as well as in the related Impaired Driver Apprehension (IDA) course.

In Rosemary's experience, cases you would think would go to trial, often don't, usually because the defendant pleads to the charge. The converse is also true, in that it's not uncommon for apparently strong cases to unexpectedly go to trial. Rosemary's point is that your DUI arrest report should thoroughly document all the elements of the offense, including the three phases of DUI detection, and the drug influence evaluation, if any.

Rosemary also reminds officers that "You can't ever not do your job." A comprehensive, accurate, and descriptive report is part of your job.

Effective Police Report Writing, Tip #4

2010-08-17T07:12:00.001-07:00

The Prosecutor reviews your report over a cup of coffee.

Tom Beadle, an Assistant Prosecuting Attorney with the Wayne County (Detroit) Prosecuting Attorney’s Office, reminds us that the prosecutor wasn’t at the arrest scene. Neither was the jury. Rather, the Prosecutor reviews your report in a climate-controlled office while sipping a cup of coffee. As Tom says, “I want to smell the person. And I want the jury to smell the defendant and hear the defendant. Your report should take me back to the scene.” Part of your job as a professional is to prepare a comprehensive, accurate, and descriptive report. The prosecutor, the judge, and the jury rely on you to take them back to the scene.

Effective Police Report Writing, Tip #3

2010-08-14T03:13:00.001-07:00

Put something unique about the suspect/arrestee in your report.

This tip comes from Ellen Sarmiento, a Supervising Assistant City Attorney of the Los Angeles City Attorney’s Office. Ellen has served as the supervisor of the Metropolitan Court in Los Angeles for many years. Located in downtown LA, Ellen’s staff has prosecuted DRE cases since the beginning of the DRE program.

Having an “independent recollection” of an incident enhances your credibility with the judge and jury. By documenting something unique about the person, your independent recollection may be triggered. For example, if the suspect was wearing colorful socks, or had a visible gold tooth, including these facts in your report will help you remember the facts of the incident.

American Optometric Association Resolution supports DRE

2010-08-11T13:48:00.000-07:00

Thanks to E. Robert Bertolli, O.D., of Connecticut, for sharing this with me. Dr. Bertolli has informed me that the resolution was unanimously passed by the House of Delegates on May 19, 2010.

American Optometic Association Resolution 1975

This is an excerpt from the Connecticut Association of Optometrists Newsletter, the President's column:

The American Optometric Association Resolution 1975 is an endorsement by the AOA of the Drug Recognition Expert program, which is a program used by highly trained police officers to detect people under the influence of drugs and alcohol. The program uses pupil and ocular motor tests as two of its testing components. Optometrists teach officers how the eyes react when under the influence of drugs or alcohol. The AOA is the first major medical community to endorse the program and this will be a major benefit for law enforcement and prosecutors. Resolution 1975 was a joint effort between the Connecticut and New Jersey associations.

I need to give Connecticut’s own Drs. E. Robert Bertolli and Robert Pannone credit for spearheading the concept. The CAO was the first Optometric Association to endorse the program after Dr. Bertolli presented the proposal to our Board of Directors twice last year. Shortly after learning of our resolution, New Jersey
followed our lead and passed a similar version. Our two State Associations then worked together for several months and countless hours in order to get this passed on a national level. This is expected to be a large public safety measure. This is a huge victory for us all and should make it much easier to introduce DRE testimony and evidence in court nationwide.

The AOA Endorsement could not have happened without the combined efforts of all of these folks, from consulting to face to face proposing and educating the AOA House of Delegates, and testifying for the Resolution Committee.

Optometrists

*****Connecticut Association of Optometrists (CAO)
E. Robert Bertolli, O.D. Board of Directors
Christopher L. Agro, O.D President
James Boccuzzi, O.D.President-Elect
D. Robert Pannone, O.D., Member
Lynn Sedlak, Executive Director

*****New Jersey Society of Optometric Physicians (NJSOP)
Michael J. Siegel, O.D.President
Charles H. Fitzpatrick, O.D. President-Elect
Harvey B. Richman, O.D., Immediate Past President
Maria S. Richman, O.D., Board of Directors
Jack E. Richman, OD, Member and Consultant
Howard Cooper,Executive Director

Law Enforcement Consultants:

Sgt. Kyle Clark, Florida State DEC Coordinator, Institute of Police Tech. & Management, Jacksonville, FL
Captain Terri Dioquino, Pinellas County Sheriff's Office, Largo, FL
Stephen Talpins, Chairman and CEO, National Partnership on Alcohol Misuse and Crime, Washington DC
Mark Neil, Senior Attorney, National Traffic Law Center,National District Attorneys Association,Alexandria,VA
Tom Page, DRE Emeritus
Congratulations everyone!!!!!!

Effective Police Report Writing, Tip #2

2010-08-06T07:17:00.000-07:00

Juries want corroboration of the officer’s observations.

This tip comes from City of Minneapolis, MN Prosecutor Karen Herland. Karen, who served for many years on the IACP’s DRE Technical Advisory Panel (TAP), successfully prosecuted the landmark State v. Klawitter case. This was the first time that DRE testimony passed the scrutiny of a State’s Supreme Court.

Right or wrong, today’s juries don’t automatically assume that the police are infallible. Juries may not even believe that police officers always tell the complete truth. Therefore, your report should include the names and identifying information of others, particularly civilians, who witnessed the driving, the personal contact phase, the SFSTs, or other relevant aspects of the investigation. These witnesses may be valuable in corroborating your observations.

Effective Police Report Writing, Tip #1

2010-07-29T08:13:00.000-07:00

In July of 2010, I presented a workshop at the Pittsburgh IACP Impaired Driving Conference on Effective Police Report Writing. In preparing this workshop, I surveyed many prosecutors from throughout the country, asking them what they would like me to pass along to officers. I incorporated many of the prosecutors' suggestions into my presentation. I periodically will share a Report Writing Tip or Principle on this blog. So, without further adieu, here's the first principle:
An officer is known by his or her reports. As a supervisor who had to review arrest reports, I first looked for the reporting officer's name. I knew from experience that certain officers would invariably write complete, accurate, and thorough reports. In fact, prosecutors often make charging and trial decisions based on the completeness of the police report. An officer who has cultivated, through good reports, a reputation for thoroughness and accuracy is more likely to have his/her cases successfully prosecuted. Ask yourself, "What do I want my reputation to be?"

Jack Oates honored at DRE Conference

2010-07-26T07:48:00.000-07:00

Jack Oates (center of picture) was instrumental in the development of the formal DRE curriculum. In 1986, Jack, along with Bill Tower (on loan to NHTSA from the Maryland State Police) and Bill Nash of NHTSA, visited Los Angeles and monitored the LAPD DRE School. I instructed at this school. The faculty primarily consisted of LAPD officers. Jack, and the others, took notes and collected materials throughout the course. Jack refined our materials, and put them into the standard NHTSA curriculum format that is still used today.

On July 23, 2010, Jack was honored by the DRE Section of the IACP with a DRE Ambassador award. Jack is flanked by me on his right, and by Dick Studdard, the true father of DRE, on his left.

DRE history: Rewrite?

2010-07-26T07:30:00.000-07:00

The pictured document was distributed at the NHTSA booth at the 16th Annual IACP Impaired Driving Conference held in Pittsburgh, PA last week. As you might imagine, I was incredulous to "learn" that Arizona, Colorado, Texas, Virginia, New York and other states adopted the DRE Program before California! I vociferously pointed this out to the NHTSA representatives, as well as to Chuck Hayes of the IACP. Without going into detail, I requested that this be rectified post-haste to show that Los Angeles had the DRE Program before anyone else. In fact, the IACP didn't credential DREs until about 1990. Arizona officers were first certified by the LAPD! I believe that the 1990 date shown for California represents the year that the California Highway Patrol adopted the national program.

So when did the DRE program actually start? Like many innovations, it's pretty much impossible to put a definite date on the beginning of DRE. For example, the origin of the first automobile is still debated in my hometown of Detroit. Here's my perspective (in part) on the beginnings of DRE.

When was the first DRE school? Well, the first DRE-like school, took place in 1980. This course, called the Drug Recognition Seminar, was 11 days long. Thus, at this point in time, and up to 1987, the program was called "Drug Recognition," and not "Drug Recognition Expert."

My direct involvement in DRE came in 1985. I was loaned from Hollywood Division, where I was working as a P-3 Training Officer, to the Department's Traffic Coordination Section. My primary assignment was to assist in developing and monitoring the logistics of what became known as the Los Angeles Field Validation Study, also commonly referred to as the 173 Case Study. At this time, there really wasn't a formal DRE program. Although certain officers had been accepted by the Los Angeles City Attorney's Office, Hill Street Branch, as DREs (see prior post), there was no formal curriculum, no standardized procedures, no standard reporting format, no specific certification criteria, and more. In my opinion, at this point the program was really "DRE Beta," a great, innovative concept, without formalization. It was not until 1987 that the course, the procedure and the certification became standardized. This was a direct result of Jack Oates, Bill Tower (on loan from the Maryland State Police to NHTSA), and Bill Nash attending the May, 1986, Drug Recognition School in LA. The instructors for this course were LAPD officers, including me. The LAPD instructors, in alphabetical order, were: Patricia (Russell) Berry, James Brown, Milt Dodge, Ian Hall, Arthur Haversat, Clark John, Baron Laetzsch, Gary Lynch, Ron Moen, Michael Murray, Thomas Page, Craig Peters, Jerry Powell, Scott Sherman, Richard Studdard, Larry Voelker, Michael Widder, and Nicholas Zingo. We individually created our lesson plans, overhead projections, and handouts. Jack, Bill, and Bill sat through the entire course, obtained the handouts, took notes, and used this as the raw material to create a formal course. The NHTSA course material, including the standardized procedure, that came out of this is remarkably similar to what's used today. Today's DRE Program, formally called the Drug Evaluation and Classification Program (DECP), descended from this. So, although some officers were called DREs before this, I'm confident in saying that there really wasn't a DECP/DRE Program until the NHTSA curriculum was released in 1987. DREs certainly, but not a program. And none of this would have occurred without the vision and tenacity of Dick Studdard, Lynn Leeds, and many others, including Marcelline Burns, PhD. In further blog entries, I'll expand upon the early days of DRE.

SFSTs: For Alcohol only? Or do they apply to drugs?

2010-07-26T06:55:00.000-07:00

Defense attorneys periodically challenge the use of the Standardized Field Sobriety Test battery for non-alcohol drugs. This issue recently surfaced on the Impaired Driver Forum. My comment, which is posted below, was used by Mark Neil of the National Traffic Law Center at a presentation at the annual IACP DRE conference in Pittsburgh last week. The SFSTs were developed to detect the presence of alcohol at impairing levels. It's universally accepted that Alcohol is a drug. So, one way of looking at the issue is that the SFSTs were in fact designed to detect the presence of drugs at impairing levels. The primary differences between the drug alcohol and the non-alcohol drugs are: Breath test for alcohol; odor of alcohol, simple pharmacokinetics, statutorily prohibited levels (such as .08), that are based in part on impairment, and commonly known signs and symptoms of influence. Those
who challenge SFSTs for non-alcohol drugs frequently put the cart before the horse: for example, by suggesting that different SFSTs should be used for different drugs! I find that sadly amusing.

Also, the SFSTs are NOT driving tests. They do, however, assess the person's ability to pay attention, remember instructions, divide attention, and perform psychomotor maneuvers requiring both fine and gross motor control. It's these abilities that are important to driving.

Judge considers admitting sobriety test in fatal crash that killed Middle Township resident - pressofAtlanticCity.com

2010-07-02T04:08:00.000-07:00

Judge considers admitting sobriety test in fatal crash that killed Middle Township resident - pressofAtlanticCity.com

Judge views photos, listens to experts in 2008 Middle Township motorcycle crash death - pressofAtlanticCity.com

2010-07-02T04:06:00.000-07:00

Judge views photos, listens to experts in 2008 Middle Township motorcycle crash death - pressofAtlanticCity.com

Comment on "green coating" and "raised taste buds"

2010-06-23T09:40:00.000-07:00

Here's my comment (in part) that I posted on the Impaired Driving Forum in reference to a discussion on the significance of "green coatings" and "raised taste buds."

"At the most, a green - or any color for that matter - coating on the tongue means that the person ingested something. That "something" could have been marijuana, mints, toothpaste, or anything else. Certainly, if someone is regularly smoking something, the person's tongue may show signs of being irritated. And if someone is smoking a hand-rolled marijuana cigarette, I wouldn't be surprised to discover that some of the marijuana debris has been deposited in the person's mouth.

"As far as "raised taste buds" goes, the most I would do in court is testify to my observation that the person's tongue looked to have small bumps on his/her tongue. And that was consistent with people I have seen who I believed were smoking marijuana (or crack, or meth, or something else).

"Both these "signs" are simply observations made by officers during many DRE evalutions. At the most, they are signs of possible drug use, and not drug influence."

Massachusetts Appeals court throws out DUI conviction

2010-06-23T07:06:00.000-07:00

I rarely will publicly question a court's decision. That said, every once in a while a case comes along that causes me to ask "What the h... were they thinking?" The following case is just that type of case. I have read the entire decision, and the following newspaper summary is accurate.

Frankly, this is one of the most asinine court decisions I have ever seen. The officer did what any non-law enforcement citizen should have done: take the person's keys and tell him to stay in the car until on-duty officers arrive. Instead, this court, by inference, suggests the officer should just let the person drive away! Ivory Tower B.S.

Boston Herald
Mass. court tosses man’s 7th OUI conviction
By Associated Press
Tuesday, June 22, 2010 - Updated 17h ago

A man who had been convicted of drunken driving six times has had his seventh conviction thrown out by the Massachusetts Appeals Court.

The court set aside the conviction of Joseph Limone today, based on what it called an illegal seizure by an off-duty police officer.

After Limone struck a car driven by off-duty Somerville police officer Robert Kelleher in Woburn, Kelleher suspected he was driving drunk, took his keys out of the ignition and called Woburn police.

The court said Kelleher’s actions constituted an illegal seizure because a police officer doesn’t have the authority to make an arrest outside his jurisdiction.

Limone’s lawyer said the ruling means he will be released from prison, where he has served about three years of a six-year sentence.
© Copyright 2010 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Letter to editor, Detroit News, May 22, 2010

2010-05-23T17:54:00.000-07:00

I submitted the following letter to the editor in response to an article that promoted the legalization of marijuana in the City of Detroit.

Here's the letter as published in the Detroit News on Saturday, May 22, 2010:

No pot law in Detroit
The last thing Detroit needs is more stoned people. And thanks to Tim Beck and the proponents of the legalization of marijuana, that's what we'll get should their latest initiative pass ("Initiative would allow pot in Detroit," May 7). Marijuana impairs attention, alters depth and time perception, and causes a decrease in motivation. The impairing effects of marijuana can last 24 hours and more, even though the person doesn't feel the effects. Do you want your doctor, dentist, teacher, police officer or bank clerk high on marijuana?
Thomas E. Page, (retired) Los Angeles Police Department,
Detroit

Chief Daryl Gates passes away on April 16, 2010

2010-04-19T14:26:00.000-07:00

From early 1981 to 1992, the year of LAPD Chief Daryl F. Gates' retirement, I served the City of Angels as an LAPD officer under Chief Gates. Chief Gates, age 83, died April 16, 2010 after a bout with cancer. His death, and the many obituaries, have inspired me to jot down some of my thoughts about his tenure as Chief.

At my academy graduation ceremony, Chief Gates eloquently spoke of the need to have "reverence for the law." I later learned that "reverence for the law" was a recurrent theme of the Chief's.

Chief Gates often spoke of the LAPD family. In fact, his retirement party in 1992 was officially called the "LAPD Family Reunion." At this reunion, which was held at the iconic Police Academy across from Dodger Stadium, and from which the media was barred, Department command staff barbecued hamburgers and hot dogs and served them to their subordinates, sworn and civilian alike. And like traditional blood-related families, Chief Gates stood by and supported - sometimes too long - those who made mistakes and strayed from the straight and narrow. The Chief also often showed "tough love" to family members who strayed from the law or from department policies by administering harsh discipline, including termination.

Chief Gates served during a "do more with less" time. At the time of his retirement, 7700 officers served LA. And this for a city of close to 4 million people, legal and otherwise, in a spread-out community of about 450 square miles. Compare this ratio with say, my hometown of Detroit: 900,000 people served by 3500 officers. The City of Los Angeles historically has had one of the lowest ratios of officers to citizens of American large cities. This resulted, I believe, in an aggressive style of policing that emphasized arrests.

Chief Gates and the LAPD have been criticized for its response (lack of response as some would have it) and preparedness to the 1992 riots. The LAPD officers were prepared for the 1992 riots. City officials, including the mayor's office, city council members, and yes, even some of the LAPD managers, backed off sending officers into the riot hot-spots for fear of inciting violence. Truly, that was one of the saddest days of my career. A few thousand of us were ordered to stay at the command post rather than take the streets back. I've often thought of the old military dictum that says to march toward the sound of gunfire.

Daryl F. Gates has often been referred to as a "Cop's Cop." I believe that this refers to his belief that there are evil people who choose to commit evil acts. And that a primary role of the police is to arrest the evil-doers, the crime-doers, and hold them accountable for their actions. And Chief Gates demanded that his officers aggressively, proactively, seek out the criminals. While in the Police Academy, I learned the phrase "Eight for Eight." This meant that as an LAPD officer I was expected to work hard for eight hours for eight hours of pay.

Chief Gates headed up the LAPD during a time of significant innovation. SWAT (Special Weapons and Tactics), DARE (Drug Abuse Resistance Education), and the Drug Recognition Expert (DRE) approach to drugged driving are some of the innovations that occurred under Chief Gates' regime. It was common for the Chief to send me and others notes thanking us for making "the old Chief look good." Chief Gates believed that the best ideas came from the officers and sergeants on the street, and not from high-ranking administrators. He felt that the role of managers and supervisors was to help the officers by providing resources to them. Very forward looking in my opinion. He also was quick to recognize the contributions of his officers. For example, I was fortunate to have authored a number of articles for Police Chief Magazine and other publications under the Chief's name. Chief Gates always made sure that the names of the real writers of his articles were included in the by-line. Not many other chiefs do that.

Chief Gates would often tell us that LAPD officers were the finest officers in the world. He'd frequently tell us how other Chiefs would request a honorary LAPD badge. As Chief Gates would tell it, he'd respond by telling the other Chief that the only way anyone gets an LAPD badge is by earning it.

I am proud to have served under Daryl F. Gates. Yes, I cringed at times when he spouted off to the media. But I never for one second doubted his loyalty to the City of Los Angeles in general, and to the men and women of the Los Angeles Police Department.

Illinois Supreme Court accepts Horizontal Gaze Nystagmus

2010-02-26T10:42:00.000-08:00

On February 19, 2010, the Illinois Supreme Court issued a landmark opinion regarding the admissibility of Horizontal Gaze Nystagmus (HGN) testimony. The defense had challenged the admissibility of HGN based on the well-known "Frye" standard. In part, the court ruled in People v. McKown:

"In sum, we adopt the trial court's findings on remand that HGN testing is generally accepted in the relevant scientific fields as evidence of alcohol consumption and possible impairment. We also adopt the trial court's five conclusions of law regarding the admission of HGN evidence and its use at trial. The admissibility of HGN evidence in an individual case will depend on the State's ability to lay a proper foundation and to demonstrate the qualifications of its witness, subject to the balancing of probative value with the risk of unfair prejudice."

This case would not have resulted in this successful conclusion without the perseverance and professionalism of Elizabeth Earleywine, the state's Traffic Safety Resource Prosecutor.

The prosecution witnesses included me, Dr. Kark Citek, Dr. Zenon Zuk, and Illinois State Police Sergeant Tony Lebron.

Finally, challenges to the admissibility of Drug Recognition Expert testimony are currently being evaluated in the states of Kentucky and New Jersey.

Nebraska Supreme Court Decision says DRE meets Daubert!

2009-11-29T12:34:00.000-08:00

http://www.supremecourt.ne.gov/opinions/2009/november/nov20/s08-192.pdf

State of Nebraska, Appellee v. Jacob J. Daly, Appellant
Filed November 20, 2009, No. S-08-192

Marcie Hagerty, formerly a Deputy County Attorney with the Lancaster County, Nebraska, County Attorneys Office, reports that the Nebraska Supreme Court ruled that DRE meets the Daubert standard.

In part, the court wrote: "A law enforcement officer with the training and experience offered by 'drug recognition expert' certification is sufficiently qualified to testify, based on his or her evaluation, that a suspect was under the influence of drugs."

Congratulations to Marcie Hagerty, Officer Jesse Hilger, the DRE in the case, and the expert witnesses who testified in support of DRE. (Expert witnesses were: Karl Citek (optometry), Zenon Zuk (medical doctor), Michelle Spirk (toxicology), and me.)

Certification training in Miami Beach, FL, November 6, 2009

2009-11-12T13:40:00.000-08:00

On November 6, 2009, I had the honor of meeting with DREs and DRE Candidates from South Florida at a certification training event in Miami Beach, FL. Sergeant Luis Taborda of Miami PD supervised and conducted this event. Luis is to my immediate right. I gave a short overview of the history of the DRE program and discussed the development of some of the certification steps. We also discussed situations in which an officer is unable to conduct the classic 12 steps of the evaluation process, and how this is not necessarily fatal to the case. The key point I made was that if some of the steps are missing, the DRE must still reach the same level of certainty as he/she would in a full evaluation.

My complements to Luis for the professionalism and leadership he showed during this training.

Drug Category versus calling a specific drug question

2009-11-08T15:41:00.000-08:00

In response to a discussion on the Impaired Driver forum.....

This discussion was initiated by an inquiry from one of the true mainstays of Drugged-driver prosecution, Susan Glass, the Traffic Safety Resource Prosecutor of Missouri. Susan asked:

"Has anyone ever successfully tried a DWI-drugs case where the only evidence of the presence of a controlled substance in the defendant's blood was the testimony of a DRE that he was impaired?"

"I'm assisting on a case where the sole evidence of drug use is DRE testimony that the subject was impaired by cannabis and a CNS depressant. We have no toxicology, no admissions regarding drug use, and no other manifestations of use (i.e. odor, puncture or track marks, drugs/ paraphernalia in the car). We now have to convince the court that the DRE testimony alone is sufficient to sustain a conviction. Any case law on the issue would be much appreciated, thanks!"

Steve Talpins, also a mainstay, responded:

"Does your law require you to prove a specific drug or drugs? If so, I do not believe your case is provable without something allowing you to specify the substance (ie. odor, presence of cannabis, drug paraphernalia, toxicology, anything). DREs call categories, not specific substances. I'm cc'ing these guys and asking DREs to comment on this as well."

At that point I responded. This is a very common issue. In fact I have written on this in the past. Here's my response:

In California DREs have historically identified the specific drug, rather than just the category. This has been the case in arrests and investigations for 11550 Health and Safety Code. This law, sometimes referred to as "internal possession," prohibits use and/or being under the influence of specified controlled substances, not just a category of drugs. This law has nothing to do with driving. Neither does it have anything to do with a "public place." Historically, it was designed to break the cycle of addiction. And also historically, California courts have ruled that someone can be prosecuted for 11550 H&S (e.g., "under the influence of cocaine") and for DUI-drugs, "under the influence of a CNS Stimulant." The determination by the officer that the specific drug is cocaine, rather than just a generic CNS Stimulant is based upon many factors,including signs of ingestion, knowledge of drug trends in the community, suspect's statements, drugs and paraphernalia possessed, etc. Usually (again historically), the officer's opinion states that the signs and symptoms exhibited by the suspect were consistent with cocaine (or the specific drug in question). Decision about prosecuting understandably awaits the toxicology report.

By the way, I discuss this when I'm asked to present on the history and development of DRE. There was already an expertise and acceptance of officers making under the influence of drugs arrests in Los Angeles prior to DRE. I believe that DRE became accepted in Los Angeles first because of this.

And yes, Susan, there have been many cases in which individuals have been convicted of DUI-drugs without supporting toxicology. There have also been cases in which convictions have resulted even though toxicology was negative. I can refer you to the, Los Angeles City Attorney's Office (Ellen Sarmiento or Dan Jeffries if you want specific information.

Steve then asked me if this was unique to California. My response:

I think that Nevada, for one, has a similar law.

Yes, the officer must be able to articulate why he/she concludes that the person is under the influence of a specific drug, and not just a category. It's usually not that difficult. And frankly, there is almost always corroborating evidence in DRE cases, such as an admission, possession of the drug itself, paraphernalia that is usually used with one specific drug, methods of administration (Eg many fresh puncture wounds point to a short-acting drug such as cocaine), duration of effects (A four hour duration surely points to heroin much more than extremely short-acting fentanyl), and much more. Again, the officer must be able to convincingly articulate why he concludes that it is a specific drug. And that conclusion is based on a lot more than solely the presenting signs and symptoms. And if that conclusion is supported by toxicology (cocaine corroborated by benzoylecgonine for example), well, what's the defense!

As I think about this issue, I suspect that DREs world-wide,and not just California, would be able to identify the specific drug, and not just the category, with a high degree/percentage of corroboration. My guess - 80%.

I was in a south Florida supermarket the other day - Publix - when I saw a young lady - probably 25 but aged like she was 40, with pimples, stringy hair, grossly underweight, shabby clothes that were too big, bad teeth, jerky movements. CNS Stimulants certainly. I think it's reasonable to conclude that it wasn't just too many lattes that caused her appearance and behavior. I'd certainly suspect methamphetamine. In fact, this person looked at me while I looked at her, and high-tailed it out of the store without making a "purchase." I relate this little story to emphasize that DRE determinations are based on the totality of observations, and not solely the DRE procedure itself.

2009-11-05T15:59:00.000-08:00

In 1995, the Royal Canadian Mounted Police hosted the first Canadian DRE School in British Columbia. (See prior blog entry.) After successfully completing the classroom phase of the training, students entered into the certification phase of the training. Much of the certification training was conducted in Los Angeles at the Parker Center jail. Many of the Canadian officers wore their local uniforms while they conducted evaluations. As you can imagine, more than one intoxicated suspect expressed surprise that he was now in Canada! And in typical police humour (Canadian spelling), we posted the Canadian Maple Leaf flag next to the breath testing instruments!

This picture, which includes me on the right, was taken in front of Parker Center, more formally known as the Police Administration Building. This facility, known to suspects and good-guys alike as “The Glass House,” was closed in October of this year. At this writing, the jail remains temporarily open until a new jail is ready for full occupancy (hopefully!). As one wag said, “A full jail is a happy jail.”

The Canadian officers took the “Systematic and Standardized” DRE mantra to heart. As an example, the Canadian officers began giving “Miranda” warnings to suspects in Canada! When I reminded the officers that “Miranda” was an American procedure, one Canadian officer told me that because of the infiltration of American television north of the border, all Canadians know about “Miranda,” and that suspects routinely ask officers to “read me my rights."

DRE Flashback: Certification, continued

2009-11-03T18:06:00.000-08:00

Certification Progress Log

The development and adoption of the Certification Progress Log itself by the LAPD DRE Unit was a response to a problem. In the late 1980s the DRE program began to grow rapidly. As it grew, it was increasingly difficult to determine which candidate DRE was approaching readiness for certification. For one thing, it was time-consuming for the DRE Unit to research the records, including the number of evaluations, on each candidate. Also, candidate DREs often didn't have a good idea of where their progress toward certification stood. We adopted the philosophy that was being used in the training of LAPD probationary police officers: that the candidate DRE would maintain a log of his/her progress, and that this log would be presented to DRE instructors at each certification event. Not only did this help the candidate DRE, it helped the instructor to more adequately assess the candidate's progress.

The first Certification Progress Log was printed on an old dot matrix printer! Remember those? Over time, as standards developed, the progress log was modified to incorporate these new standards.

DRE Flashback: Certification, continued

2009-11-02T15:52:00.000-08:00

In September I blogged that DRE certification initially came from the prosecution division of the Los Angeles City Attorney's Office. Simply, LA prosecutors wanted to be confident of the DRE's expertise before attempting to qualify the officer as an expert in court. Certification was a means to that end.

In fact, most of the standards and milestones of the DRE certification process were developed as a practical response to problems and issues. Did you ever wonder why two DRE instructors must sign off on the Certification Progress Log? Back in the late 1980s, the signature of only one DRE instructor was required. Two situations caused the LAPD DRE Unit to change it. (By the way, in the late 1980s the LAPD DRE Unit consisted of the inimitable Sergeant Dick Studdard, Officer Gary Tetzlaff, and Sergeant Tom Page, yours truly!) The first situation was simply a disagreement between the three of us regarding the readiness of an officer for certification. In the second situation a DRE instructor signed-off on a candidate DRE. Before the candidate submitted his progress log for certification the DRE instructor telephoned me and confided that he was really wasn't confident of the candidate's readiness for certification. I recall that Dick, Gary and I had a fairly animated discussion regarding this issue. After considering some other options, such as requiring that the DRE instructor be of a supervisory rank, Dick suggested that requiring a two instructors sign-off would ensure the quality control we were seeking. There was no Technical Advisory Panel at the time so there was no mechanism for a review. We just made the change by fiat!

In my opinion, the two instructor sign-off requirement is the most important milestone in the DRE certification process. The candidate DRE must seek the recommendation of experienced DRE instructors. By signing his or her name to the progress log, the DRE instructor affirms that the candidate has sufficient expertise to be welcomed into the DRE community. This process is very similar to what I experienced in my graduate education. In order to complete my Master's program, I went before a board of three professors who challenged my thesis and peppered me with questions. Only when all three professors approved me did I complete the program. Very similar to the DRE process.

First Canadian DRE School, 1995, Students

2009-10-18T08:27:00.000-07:00

In my estimation, this landmark school would not have happened were it not for the relentless perseverance of Wayne Jeffery. Wayne, an eminent Royal Canadian Mounted Police toxicologist based in British Columbia, laid the groundwork for this class by working directly with the LAPD DRE Unit. Wayne attended the full DRE class in Los Angeles in 1991.

I served as the lead instructor for this school. The instructors were chosen not only for their knowledge, but for their ability to adapt the curricula to the Canadian legal environment. For example, we converted the measurements used in the DRE process to the metric system. Constitutional and Charter Rights issues also required some curricula adaptation.

This class picture, including instructors Rob Bustrum, Clark John, and me, was taken inside the RCMP training facility. Canadian DRE coordinator Evan Graham is to Clark John's right. Evan later became the chair of the DRE Section of the International Association of Chiefs of Police, the regulating body for the DRE program. Some of the other students pictured are toxicologists Heather Dinn, Jeff Coughlin, Mike Anselin and Rick Ulrich, constables Beth Blackburn, Doug Ferguson, Jim Paquette and Paul Milne.

New York Times covers DRE in 1989

2009-10-08T07:17:00.000-07:00

On September 25, 1989 the New York Times published an article about the growing problem of drugged-driving. The article included a discussion about the merits of the Drug Recognition Expert program. The graphic for the article showed LAPD Motor Officer and DRE Instructor Ray Messerly as he conducted a pupil size examination on me. Officer Steve Davey of the Glendale, CA, PD is to my right. Ray Messerly, who was my LAPD academy classmate, was killed in an on-duty traffic crash on October 22, 1992. Ray's picture is included in the "Roll Call" which takes place at the annual DRE conference.

First Canadian DRE School, 1995, Instructor cadre

2009-10-04T18:13:00.000-07:00

In October of 1995 the Royal Canadian Mounted Police in Vancouver, B.C. hosted the first DRE school held outside of the United States. This school used the accelerated format developed by the LAPD DRE Unit. It combined the SFST course, DRE pre-school and the DRE school itself into a unified 10-day course. This picture shows the instructor cadre in front of the Fairmont Academy. From left to right: Bryan Schafer (Minneapolis PD), Clark John (LAPD), Clarence Metcalfe (LAPD), Rob Bustrum (Boulder, CO, PD), Wayne Jeffery (Toxicologist, RCMP), Thomas Page (LAPD), Douglas Paquette (New York State Police), Steve Willis (Glendale, AZ, PD), and Arthur Haversat (LAPD).

First DRE Checklist - from 173 case study

2009-10-02T03:50:00.000-07:00

DREs use a 12 step checklist to conduct the drug influence evaluation. The checklist helps to ensure standardization of the process. The first checklist, however, consisted of 21 steps! This checklist was created to conduct the landmark 1985 173 case study, formally titled the Los Angeles Field Validation Study. This checklist was developed with the oversight of Marcelline Burns, Ph.D, the director of the Southern California Research Institute. As you can see, the DRE procedures, including terminology, have changed since this study was conducted.

First DRE School out of California, July 1988

2009-09-25T03:41:00.000-07:00

In July of 1988, Phoenix, Arizona (hotel rates are quite reasonable in July!) hosted the first DRE school held outside of California. The school was held at the Pointe at Squaw Peak. This picture includes this landmark school's instructors and students. Jack Oates, wearing white slacks in the front row, was the NHTSA representative. Jack created the schedule and made instructor assignments. I am to Jack's right, next to Dick Studdard.

September 1987 NHTSA press release announces expansion of DRE

2009-09-23T16:55:00.000-07:00

On September 29, 1987, U.S. Secretary of Transportation Elizabeth Dole announced grants to the LAPD and to the IACP to expand the DRE program out of Los Angeles. The grants were announced in this NHTSA press release. In July of 1988 the first DRE school to be held out of Southern California was conducted in Phoenix, Arizona.

1987 Los Angeles DRE School - first to use NHTSA curriculum

2009-09-16T06:19:00.000-07:00

This is a picture of the students and instructors who participated in the 1987 DRE school in Los Angeles. I'm pretty certain that this was the first DRE school that used the new NHTSA curriculum. The class was held at the Los Angeles Armory near the LAPD Academy. Many famous DREs are in this picture. Dick Studdard is in the middle of the front row. I am to Dick's left. On my left is Mike Murray and then Art Haversat. To Dick's right is Gary Tetzlaff, Bob Hohn (now with NHTSA), and City of Los Angeles psychologist (and DRE instructor), Patrick Prince. Joe Klima, now a Phoenix PD Commander, is in the 2nd row, third from the left. Cliff Vanell (Phoenix Prosecutor's Office) is directly behind Joe.

First DRE Instructor School

2009-09-15T06:35:00.000-07:00

Here is a class photo of the very first DRE Instructor's school. Jack Oates from NHTSA (3rd from the left, 1st row) was the lead. I am to Jack's right. Dick Studdard missed the picture as he had a meeting. I'm pretty sure the date of the picture was early 1987.

A number of famous DREs are in this picture, including Clarence Metcalfe, Greg Nichols, Gary Tetzlaff, Art Haversat, Mike Murray, Phil Rodriguez, Jim Stoney, Bill Walker, Milt Dodge, Craig Peters, Sonny Medina, Tom Page (all LAPD), Steve McAndrews (Long Beach PD), Tom Winterstein, Doug Paquette, Al Brown (all New York State Police), Derald Gautier, John Burbach (both Denver PD), Bob Sparks, Joe Klima (both Phoenix PD), Mike Hayes (Nassau County PD), Ken Clark (Virginia State Police), Ken Lantaigne (Virginia Beach PD), Rob Bustrum (Boulder, CO, PD, Scotty Coulimore (Colorado State Patrol), John Rydel (California Highway Patrol), and others.

The purpose of the class was to introduce us to the first NHTSA DRE curricula package. All LAPD instructors had already completed instructor development courses sponsored by the LAPD. This class picture was taken at the Long Beach, CA, Police Academy. The LBPD hosted this course. Enjoy.

173 case study participants

2009-09-15T06:31:00.000-07:00

DREs know about the significance of the landmark 173 case study, formally known as the Los Angeles Field Validation Study. The study was conducted in 1985 by Dr. Marcelline Burns of the Southern California Research Institute, the Los Angeles Police Department, NHTSA and the Governor's (California) Office of Traffic Safety. But who were the officers involved in actually doing the study? This picture of the study's participants was taken at an LAPD awards ceremony on February 4, 1987. The study's participants were awarded the Police Meritorious Unit Citation for "...outstanding service by members functioning as a team." Chief Daryl Gates is seated in the middle. To his right is Hollywood actor Richard Anderson. To the Chief's left is Dick Studdard. I am in the back row, second from the right.

The recipients of the Police Meritorious Unit Citation are:
Lt. Daniel Watson, Sergeant Richard Studdard, Sergeant Arthur Haversat, Sergeant Jerry Powell, Sergeant Thomas Page, Sergeant Jeffrey Siggers, Sergeant Leslie Wilbanks, Officer Joeseph Beck, Officer Patricia Russell, Officer Robert Carlson, Officer Larry Ferrel, Officer David Gray, Officer Ian Hall, Officer John Hone, Officer Don Hutchingson, Officer Clark John, Officer Robert Karlstrom, Officer Baron Laetzsch, Officer Charles "Doug" Laird, Officer Ralph McComb, Officer Michael Murray, Officer Eugene Nabonne, Officer Scott Sherman, Officer Gary Sidell, Officer James Stoney, Officer John Tanner, Officer Geoffrey Taylor, Officer Arvin Turner, Officer Larry Voelker, Officer Michael Widder, and Officer Richard Zielinski.

Of course, this study could not have been done without the continued cooperation of the drug users themselves!

DRE Flashback: Certification

2009-09-15T06:26:00.000-07:00

DRE Flashback: Certification.
The International Association of Chiefs of Police issues certification credentials for Drug Recognition Experts. The actual certification comes from the state/provincial coordinator. But it wasn't always like this. Before the IACP became the credentialing body for DREs, DREs were certified by the Los Angeles Police Department. In fact, the first Arizona DREs (Bob Hohn, Bob Holliday, Bob Sparks and John Patla) were initially certified by the LAPD. Prior to the LAPD issuing certification, Los Angeles DREs were certified by the Prosecution Division of the Los Angeles City Attorney's Office. A list of officers who had completed drug influence training was submitted to the City Attorney's Office, accompanied by complete resumes. The City Attorney's office then compiled a list of officers that were "certified," and used this list to determine which officers they would be willing to attempt to qualify as experts in court. Once qualified as an expert in court, the officer was considered to be a "court-qualified expert." So, as you can see, the DRE program has a long history of working closely with prosecutors.