How to Handle Defense Challenges in an Impaired

Driving Case (3 Phases of an OWI Investigation)

Presented by Kenneth Stecker

Michigan Traffic Safety Resource Prosecutors

Prosecuting Attorneys Association of Michigan

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Court Upholds Murder Conviction In Drugged Driving Case

1/1/08Michigan State

PoliceTraffic Stop

Erratic DrivingTrooper

Bockhausen

3/17/12Port Huron Police

Dept.Traffic Crash

Hit & RunOfficer Decker

3/27/12St. Clair County Sheriff’s

Office911 Call

Passed out behind wheel of her car w/child

passengerDeputy Singleton

5/5/12Michigan State

PoliceTraffic Stop

Erratic DrivingTrooper Hoffmann

8/24/12Port Huron Police

Dept.Traffic Crash

Officer Mynsberge

2/25/13Port Huron Police

Dept.Traffic Crash

Officer Phillips

6/16/13Michigan State

PoliceTraffic Stop

Erratic DrivingTrooper Hoffman

7/20/13St. Clair County Sheriff’s

OfficeFatal Crash

Deaths of Ward & Raymo

Deputy Bueche

Carisoprodol (Soma)

MarijuanaDihydrocodeine

(Codeine)

Carisoprodol (Soma)

Meprobamate Codeine

MorphineHydrocodone

Carisoprodol (Soma)Meprobamate

CodeineHydrocodone

Acetaminophen

Carisoprodol (Soma)

Meprobamate Codeine

Hydrocodone

Carisoprodol (Soma)

Meprobamate Codeine

Tramadol

Carisoprodol (Soma)Meprobamate Hydrocodone

Carisoprodol (Soma)

MeprobamateN-

desmethyldiazepam

MorphineDiazepam (Valium)

Carisoprodol (Soma)Meprobamate

OxycodoneAmphetamine

Vehicle in Motion

Vehicle in Motion

OWI Detection Phases

➢Vehicle In Motion

➢ Personal Contact

➢ Pre-Arrest Screening

Vehicle in Motion – Should I stop the driver?

▪What first attracts the police officer's attention?

▪24 driving cues recognized by NHTSA as possible indicators of impairment.

▪Developed from list of more than 100 driving cues found to predict BACs of >0.08

▪ Is there anything unusual with how the driver stops the vehicle?

▪ If so, put it in your report.

24 Driving Cues ➢ Problems in maintaining proper lane

position➢ Speeding and braking problems ➢ Vigilance problems ➢ Judgment problems

“How important are driving symptoms in a DUI case?

Driving is the most important. So…I like to get the cop to tell the jury all the

things that my client didn’t show from the above list.”

Attack the Stop—No Reasonable Suspicion

How to handle the bad stop claim?

Terry v Ohio, 392 US 1 (1968): A police officer must articulate a reasonable suspicion that criminal activity afoot.

▪ Be prepared to testify like an expert.

▪ Remember you are not locked into only one reason

for a stop.

▪ Describe multiple reasons if they exist.

▪Must have a clear reasonable cause for the traffic stop

▪ Put the reason for the stop in your report.

▪ Be clear, thorough, and descriptive.

Never use “HUNCH” in your police report

➢ Officer never observed erratic driving – BOL call informationnot reliable enough for traffic stop

▪ Navarette v. California, 134 S.Ct. 1683 (2014)▪ Some anonymous tips may be reliable enough. ▪ Courts will look at the “totality of the circumstances.”▪ Caller described make/model, color and license plate

of truck that nearly ran her off the road.▪ Officer can verify this information before making a stop.

▪ What if you are mistaken about the law and pull someone based on that mistake?

▪ Heien v. North Carolina, 135 S.Ct. 530 (2015)▪ You are expected to know the law.▪ But if mistake is reasonable, reasonable suspicion

for traffic stop will still exist.

➢ No ticket issued for traffic violation

▪Doesn’t matter

▪Don’t let defense turn your OWI trial into a civil infraction hearing

▪ The question is-in the officer’s experience, does reasonable cause exist?

In Car Camera - A Good Example

Conclusions vs. Descriptions

Crossed the center line:▪ Half way in other lane▪ Completely crossed 5 times by at

least two tire widths▪ Straddled center line for quarter

mile

➢ No reasonable suspicion for additional investigation

▪ Rodriguez v. United States, 135 S.Ct. 1609 (2015)

Rodriguez v. United States, 135 S.Ct. 1609 (2015) ▪Traffic stop for driving on shoulder

▪ Issued warning

▪Asked for consent to walk his dog around vehicle – no consent

▪Defendant and passenger detained until back up officer arrived (8 minutes)

▪Dog walked around vehicle – meth recovered

▪Motion to suppress evidence – lack of reasonable suspicion to extend traffic stop for dog sniff

Rodriguez v. United States, 135 S.Ct. 1609 (2015)

▪Police may not extend an otherwise-completed traffic stop to conduct additional investigations absent reasonable suspicion

▪Critical question is not whether dog sniff occurred before or after warning issued – but whether the dog sniff added more time to the stop

Can an officer order occupants out of car?

▪Drivers—Yes▪Pennsylvania v Mimms, 434 U.S. 106 (1977);

People v Harmelin, 176 Mich. App. 524 (1989).

▪Passengers—Yes▪Maryland v Wilson, 519 U.S. 408 (1997);

People v Martinez, 187 Mich. App. 160 (1991).

▪Pat-down of driver or passenger require reasonable suspicion the person is armed.

Exclusionary Rule Exceptions-Automobile Searches

▪ The automobile exception to the 4th Amendment warrant requirement allows POs to search a motor vehicle without a warrant if probable cause exists to support the search; it is premised on an automobile's ready mobility and pervasive regulation. California v. Acevedo 500 US 565 (1991); Pennsylvania v. Labron, 518 US 938, 940 (1996); People v. Kazmierczak 461 Mich 411 (2000)

▪ The ability to search without a warrant extends to closed containers in the vehicle that might conceal the object of the search. US v Ross, 456 US 798 (1982) ; People v. Kazmierczak 461 Mich 411 (2000)

▪ Including passengers' belongings found in the car that are capable of concealing the object of the search. Wyoming v. Houghton, 526 US 295 (1999)

▪ Including motor homes. California v. Carney, 471 US 386 (1985)

Exclusionary Rule Exceptions-Automobile Searches

▪May search passenger compartment if reasonable to believe arrestee might access the vehicle or that the vehicle contains evidence relevant to the offense for which the person was arrested. Arizona v. Gant, 536 U.S. 332 (2009)▪Example - after OWI arrest – OK to search for

alcohol containers▪Example - after DWLS arrest – not OK

Personal Contact

Contact with Driver

OWI Detection Phases

➢ Vehicle In Motion

➢Personal Contact

➢ Pre-Arrest Screening

Personal Contact – Should the driver exit?

▪ Begins as soon as driver’s vehicle has come to a complete stop

▪ Continues through your approach to the driver vehicle and involves all conversation between you and the driver prior to the driver's exit from the vehicle

▪ Face to face contact with driver usually provides first definite indication that the driver is impaired

▪ Don’t overlook how the driver is able to exit the vehicle

▪ If anything unusual, put it in your report

Sensory Clues

▪Sight Clues

▪Hearing Clues

▪Smell Clues

Sight Clues

▪Bloodshot eyes

▪Soiled clothing

▪Fumbling fingers

▪Bruises, bumps, or scratches

▪Alcohol containers/pill bottles

▪Drugs/drug paraphernalia

▪Anything unusual?

Hearing Clues

▪Slurred speech

▪Admissions to drinking/drug use

▪ Inconsistent responses

▪Abusive language

▪Unusual statements

Smell Clues

▪Alcoholic beverages

▪Marijuana

▪Cover up odors

▪Unusual odors

➢ Objective Symptoms are NOT conclusive of impaired driving

▪ Red, watery eyes, slurred speech, flushed face, etc.▪ These can all be caused by allergies, a cold, fatigue, etc.▪ Smell of intoxicants alcohol has no odor

“Officer, I only had two beers!”

Always Ask Follow Up Questions

▪What did you drink?

▪When – start/stop?

▪Where?

▪How long were you drinking?

▪Who were you with?

Documentation

▪Pill Bottles▪Right drug in containers▪Dose prescribed▪Amount in bottle/date of prescription▪Prescribed to defendant▪Warning label▪Seize as evidence/photo

▪Statements of Use▪Time taken▪Amount

Conclusions vs. Descriptions

He smelled like alcohol:▪ The odor of alcohol was

overwhelming was coming fromhis breath.

▪ He was less then two feet awaywhen he was speaking to me.

▪ The odor of alcohol filled mycar when he was sitting in theback seat and I needed to openmy window.

Pre-ArrestScreening

OWI Detection Phases

Vehicle In Motion

➢ Personal Contact

➢Pre-Arrest Screening

Is there probable cause to arrest driver for OWI?

Pre-arrest Screening

▪The first task is to administer three scientifically validated Standardized Field Sobriety Tests. ▪Second task will be to administer a PBT to

confirm the chemical basis of the subject's impairment. ▪Based on these tests and on all other

evidence from Phase One and Two, you must decide whether there is sufficient probable cause to arrest the subject for OWI.

Attack the SFSTS

“These tests are not designed to determine whether you have actually consumed too much, since sober people fail them in alarming numbers. (Upwards of 80% of sober people will fail the Walk and Turn test

according to one federal study.)

Field sobriety tests are administered to justify an arrest decision. Officers will frequently admit that these tests

are not fair, but they are trained to use these tests.”William Maize, OWI Defense Attorney

Field Sobriety Test

➢ Not administered in substantial compliance➢ Defense attorneys argue that any deviation

compromises the test’s scientific validity and therefore the test should not be admitted into evidence

“The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e. the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.”

NHTSA’s Student Manual Preface:

➢ Trying to trick defendant (i.e. people don’t normallywalk heel to toe)▪ Know why you do the SFSTs ▪ Be ready to explain this to a jury ▪ Simple divided attention tasks – meant to mimic

tasks required when driving a car

Understanding SFSTs

▪ Know the NHTSA studies.

▪ Know more about the SFSTs than the defense.

▪ Never use pass/fail.

▪ If possible, have them done in front of a camera.

▪ Recite clues out loud on video.

▪ Discuss with your prosecutor before demonstrating SFSTs in front of

jury.

Tiger Woods

➢ Only Field Sobriety Tests administered/Not standardized nor validated by NHTSA▪ Do not limit evidence to SFSTs▪ You may administer more than just SFSTs▪ All FSTs, including SFSTS, are persuasive evidence of

impairment

➢ SFSTs not validated for drugged driving ▪ Initially, tests looked at alcohol and subsequently the

relationship between impairment and detecting a particular BAC.

▪ So are SFSTs only for alcohol?

Commonwealth v. Gerhardt, 477 Mass. 775 (2017)

▪Traffic stop for no rear lights

▪Smoke inside vehicle – distinct odor of burnt marijuana

▪Handed officer two roaches

▪Admitted to smoking 1 gram of marijuana three hours prior

▪Court asked to consider admissibility of FSTs in OWI cases involving marijuana

➢ Non-Standardized FSTs Relevant to Impairment

▪FSTs may be relevant to defendant’s impairment and an officer may testify as a lay witness as to observations of defendant’s performance

▪Balance, coordination, ability to retain and follow directions, ability to perform tasks that require divided attention, etc.

➢ Limitations on Non-Standardized FST Testimony

▪FSTs will be described as “roadside assessments”

▪Officer may not testify that impairment is due to marijuana

▪Officer may not testify to “pass” or “fail”

Drugged Driver

Arrest Decision

The Arrest Decision for OWI

▪The OWI detection process concludes with the arrest decision.

▪This decision is based on all of the evidence you have obtained during all three detection phases:▪Observation of the vehicle in motion and

during the stopping sequence; ▪Face to face observation of the subject and

subject’s exit from the vehicle; ▪And pre-arrest screening (aka roadside

investigation.

DWI Detection and Standardized Field Sobriety Testing

Session 7 – Phase Three: Pre-Arrest Screening

The Arrest Decision is Based on All Evidence Accumulated During All Three Detection Phases

Initial Observation ofVehicle Operation

Face to FaceObservation

andInterview SFSTs/FSTs

Tests

Observationof the

Exit

Observation ofthe Stop

7-62

Other Issues

Miranda v Arizona, 384 U.S 436 (1966)

▪ Miranda Rights are usually given as follows:

▪ You have the right to remain silent, and refuse to answer questions.

▪ Anything you say may be used against you in a court of law.

▪ You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

▪ If you cannot afford an attorney, one will be appointed for you before any questioning.

▪ If you decide to answer questions now without an attorney present you still have the right to stop answering at any time until you talk to an attorney.

▪ Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions.

• If the legal warning is not given prior to an “In-Custody Interrogation,” then all subsequent statements are precluded and are not admissible at trial.

• There are many misconceptions about when Miranda warnings apply.

Custody + Interrogation

▪ Custody: The United States Supreme Court has unequivocally settled that the triggering mechanism for the requirement for Miranda warnings is custody and not “focus of the investigation.” Michigan follows this view as well. Beckwith v. United States, 425 U.S. 341 (1976); People v Coomer, 245 Mich. App. 206 (2001).

▪ Interrogation: It means questioning. This questioning can be in the form of an officer asking the suspect direct questions, or it can be comments or actions by the officer that the officer should know are likely to produce an incriminating reply. Oregon v. Mathiason, 429 U.S. 492; People v. Hill, 429 Mich. 382 (1987).

▪ Courts have generally used a “totality of the circumstances” test to figure this out. For this test, a court will look at a number of factors and focus on the “physical and psychological restraints” on the person’s freedom during the interview. U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).

Custody/Interrogation Factors ▪ Courts may consider several factors to determine whether an interrogation was custodial.

Overall, they try to determine how intimidating, coercive, and compelling the environment was. The questions they weigh include:

▪ Who asked the questions? Was it a police officer? A prison guard? Was the questioner in a position of authority? Was he or she carrying a gun? The identity of the questioner goes to the intimidation level of the interview. For example, a court may consider an armed police officer or prison guard more compelling than a postal inspector.

▪ How many officers were there? More officers points to a more coercive setting.

▪ Who else was there? A court may find a situation less coercive if the suspect is surrounded by friends or family.

▪ Who initiated the discussion? A suspect walking up to an officer and asking questions suggests a non-custodial situation.

▪ Did the officer tell the suspect the interview was voluntary? If so, a court is more likely to consider the interview non-custodial.

▪ Where did the questioning take place? Was it at the police station? The suspect’s house? On the street? In a hospital room? The issue is how familiar or coercive the setting is to the suspect. An interview at a police station, for example, would likely be more intimidating than one on a sidewalk.

Berghuis v Thompkins, 560 U.S. 370 (2010)

▪ Police do not need to obtain a waiver before interrogating a suspect but rather only need to inform the suspect of his rights under Miranda and may begin questioning once the suspect acknowledges his rights.

▪ Second, a suspect waives his rights under Miranda once he voluntarily answers questions knowing that he does not need to do so.

▪ Third, a suspect must unambiguously invoke his right to remain silent if he wishes to invoke his right to cut off questioning -- he cannot do so through ambiguous conduct or by merely remaining silent.

When Miranda is not Required at a Traffic Stop▪ When a motorist can’t produce a license and vehicle registration, it’s not unlawful

for an officer to ask whether the motorist had permission to drive the car, where they were going and whether they had any money. The motorist’s replies are admissible even though the officer failed to issue Miranda warnings. Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969).

▪ When an officer stops a motorist for speeding and conducts a cursory search of the vehicle and asks general questions (e.g., who owns which piece of luggage), Miranda warnings are not required because the motorist was not subjected to custodial interrogation. United States v. McKneely, 810 F.Supp. 1537 (D.C. Utah 1993).

▪ When an officer observes a motorist weaving across the lanes of the road, the officer smells alcohol on the motorist’s breath, and the motorist affirms that they had “one bottle of wine and two mixed drinks” when asked if they had anything to drink, Miranda warnings are not required prior to questioning if the officers haven’t placed the motorist into custody. Bradeen v. State, 711 S.W.2d 263 (Tex. App. 1986).

Police Reports

Why should you care?

▪A well-written report stops a defense attorney before they start.

▪The easiest motion to win is the one that never gets filed.

▪The easiest trial to win is the one that never happens.

What do defense attorneys do?

▪ They will study your police report, the in-car

video, etc. and look for errors, assumptions,

mistakes, and gaps.

▪ They don’t care about what is true; they ask if

we can prove things to be true.

DO NOT CUTAND PASTE!!!

Typical Format

▪ Vehicle in Motion

▪ Personal Contact

▪ Pre-Arrest Screening

▪ Arrest Decision

▪ Post Arrest

Police Report▪ Arrest report

▪ Defendant’s statements

▪ Witness statements

▪ Defendant’s driving record

▪ Vehicle registration

▪ SFST sheet

▪ Implied consent

▪ Breath test print-outs

▪ Blood test print-outs

▪ Toxicology reports

▪ Evidence collection sheets

▪ Supplemental reports (even if you didn’t write them)

Ken Stecker/Kinga Canike

Traffic Safety Resource Prosecutors

Prosecuting Attorneys Association of Michigan

116 West Ottawa

Lansing MI 48913

(517) 334-6060 x 827 or 816

steckerk@michigan.gov

canikek@michigan.gov