Effective Courtroom Testimony, part 1

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

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

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

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

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

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

 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

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

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

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

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

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

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

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

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

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

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

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

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

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?

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?

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

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

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

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

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

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

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

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

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.