The Complete DUI Report

Officer Andy BorrowsJupiter (FL) Police Department

The Complete DUI Report

Officer Andrew BorrowsJupiter Police Department

This presentation has been prepared under the fair use exemption of United States Copyright Law and is restricted from further use.

2021 IPTM Symposium on Traffic SafetyOrlando, Florida

Goal

Clearly articulate and convey the observations of a driver’s impairment in a

DUI investigation, in order to reduce no files, court challenges, and improve

reputation with your local state attorney’s office

Why Report Writing Matters

• Your report is used to make filing decisions

• Your report will be used to craft a defense strategy

• Your report is important in order to help recall and describe events long after they occur

Report as Basis of Recollection• Trials happen from six months to two years after an

arrest

• While your report is not published to a jury, your ability to clearly convey what happened in a clear, concise and chronological manner relies almost entirely on a well written report

• In many misdemeanor DUI cases, the arresting/ stopping officer are the only ones who testify. Your ability to clearly convey what happened and what you saw is critical to successful prosecution

Florida Jury InstructionsThe jury is actually told to judge you based on your ability to recollect the event.

“You should consider how the witnesses acted, as well as what they said. Some things you should consider are:

1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?

2. Did the witness seem to have an accurate memory?

3. Was the witness honest and straightforward in answering the attorneys’ questions?

4. Did the witness have some interest in how the case should be decided?

5. Does the witness’s testimony agree with the other testimony and other evidence in the case?

6. Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court?”

Two Keys to Effective DUI Report Writing

#1. Always provide more detail, not less.Actually heard in the Breath Alcohol Testing Facility: FTO to Trainee: “Don’t be too pacific in your report because that’s where the lawyers get you.” Don’t let this be you!

Two Keys to Effective DUI Report Writing

#2. Patience is an extremely important aspect of any DUI investigation. This also applies when writing your report. Take your time.

Basic Report Writing Rules• Write your report in chronological order• Use spell check• Use active voice and plain, simple language• Never copy and paste. Ever.• Do not write reports outside of your training level• Use past tense• Use the suspect’s full name once, and refer to

suspect by last name after. Avoid he or she as much as possible

Never Copy and Paste

Keep Within Your Training Level

NHTSA’s Three Phases of DUI Investigations

• Phase 1: Vehicle in Motion

• Phase 2: Personal Contact

• Phase 3: Pre Arrest Screening

Phase I

The most important part of this phase is to clearly identify and articulate the reason for the stop.

DUI arrests can and do come from any of the three primary types of encounters:• Consensual Contact• Reasonable Suspicion• Probable Cause

Consensual Contact

• Note where you parked your vehicle (specifically say if you did not block suspect in)

• Note how you gained driver’s attention

• What position windows were in

• Note where the keys were

Reasonable Articulable Suspicion• Reasonable articulable suspicion if it exists, is

justification for conducting a traffic stop

• Your approach is everything in these cases, and they are likely to be subject to a suppression hearing, especially if not thoroughly articulated

• In your report specifically articulate your experience and concern the driver was sick, tired or impaired

Failure to Maintain Single Lane

“Swerving” is often given as a reason for making a stop. Make sure you clearly distinguish between the Florida Statute for Failure to Maintain Single Lane (which must affect other traffic) and a reasonable suspicion stop for unusual driving (sick, tired or impaired).

Probable Cause

• Obtaining probable cause for a stop is best basis for stop, even if only an equipment violation

• Speeding: Note what the speed zone is, your visual estimation of speed, the location of the vehicle, patrol speed matching speedometer and audio Doppler / lock tone and include all documents (log, certification, radar/laser certification)

Probable CauseExample of Stopping Basis (Speed):

I was conducting stationary traffic enforcement in the median in the 1500 block of West Indiantown Road. Traffic was very light. This is a posted 45 mile per hour zone in both directions. I was using my in car radar (Stalker Dual SL serial number DD005051) in stationary mode. I have both a forward and rear antenna in my vehicle. I was facing west. I observed a vehicle approaching me from the west in the middle lane. There were no other vehicles around. I visually estimated the vehicle was traveling at a speed of approximately 60 miles per hour. I activated the front antenna of my radar. I heard a clear audio Doppler tone. The target speed indicated a speed of 62 miles per hour. As the vehicle passed I made a u-turn and caught up to the vehicle which I kept in my sight. As I approached the vehicle, I saw it was a white Mercedes bearing Florida license plate ABC123.

Stopping for More than One Reason

Often a stop is made on the basis of one or more things. It is important to clearly articulate ALL the reasons for a stop, not just one. This provides cover in the event one or more reasons are not sufficient. This is an area where it is tempting to cut corners. You will be strongly challenged if you mention other driving behavior at time of testimony not mentioned in a stop. Establishing the basis for the stop in your report is extremely important for DHSMV reviews.

Phase I

Phase II was on routine patrol in the area of West Indiantown Road and I-95 southbound on ramp. I observed a 2013 Ford bearing Florida license plate IK22ZI traveling in front of me. The driver, later identified to me as Jakub Kozoski, appeared to be having great difficulty maintaining a lane. The vehicle drove over the fog line separating the road from the shoulder several times. As the on ramp curved to the left, Kozoski`s vehicle nearly struck the concrete retaining wall on the right side, driving completely off the roadway and onto the shoulder. I initiated a traffic stop. Kozoski stopped in the travel lane of I-95. After getting Kozoski to pull to the shoulder, I made contact with him.

Phase I

Note vehicle stopping sequence.

Phase II

Phase II

Phase II

• Note if other passengers were in vehicle and their level of sobriety or lack of

• Make an explicit statement you found suspect in actual physical control of the vehicle

Phase II

• Note soiled/disheveled clothing• Odors• Speech• Short term memory problems (repeated

speech, forgetting documents, inability to hold conversation)

• Fumbling documents• Open containers (condition and contents)

Phase II

Medical Questions

Make sure to ask and fully document answers to medical questions. Please note medical questions have been moved to Phase II in the NHTSA curriculum and should occur while driver is still seated.

Phase II

Do not rush this phase of the investigation. If the suspect refuses roadsides, it may be all the evidence you can collect before you have to make an arrest decision.

Phase III• Take a few moments to set up your scene

• Check lighting and camera equipment

• Take the time to make your scene extra safe with cones and flares

• Document the scene, your efforts to make safe, and any challenges on scene

Phase III – Horizontal Gaze Nystagmus

• Spell out each clue of nystagmus

• Make sure to document other observations during the task, as these are relevant and may be the only thing you can testify to anyways

Phase III – Walk and Turn• Do not just list clues, but be specific about how and when

the clues occurred• Do make sure you are familiar with the standardized clues

and can name them from memory• Note unusual shoes and if offered opportunity to take them

off for the task

• Avoid this:

Phase III – One Leg Stand

• Note when the clues occurred, using either an independent clock or the suspect’s count, just stay consistent

• Be able to identify standardized clues (PUSH)

• Avoid this:

Phase III – Other Roadsides

Some jurisdictions accept or expect other roadsides such as finger to nose or Romberg.

Make sure to stick to your jurisdiction’s guidelines and expectations.

Phase III – Finger to Nose

• Be specific with each touch of nose about how suspect performed

• If touch is done correctly, say so

• Avoid this:

Phase III – Romberg / Alphabet

• Again, specifically describe performance• Include exact missed letters in alphabet

• Avoid this:

This report would be virtually impossible to testify effectively to:

Roadside Refusal

Model Taylor Warnings:“If you refuse to complete the tasks I have

requested of you, I will have to base my arrest decision on what I have seen of you so far and

your refusal can be used as evidence against you in court.”

Roadside Refusal

• Refusal cases are where report writing is most critical to successful prosecution

• Make sure to stretch your roadside interview as far as possible. Give and document every opportunity to complete roadsides post Taylor Warnings

• As easy as it is to say, “Smith told me to just arrest him. I arrested Smith.” This falls short on evidence collection

I next conducted the Walk and Turn Task. Smith had great difficulty attaining and maintaining the starting position. Smith blamed his flip flops but refused to take them off. Smith then walked towards me, turned his back on me, and put his hands together behind his back. I asked Smith what he was doing and he stated he didn`t want to get into trouble. When I pointed out that it looked like Smith was trying to get me to arrest him, he shrugged his shoulders and said "Yea." When I asked why, Smith said it was because he just wanted to go home. I confirmed that`s what he meant. I pointed out the illogic in this statement and advised Smith of the Taylor Warnings. Smith stated he understood and then said he didn`t want to refuse. He then stated he couldn`t do the task due to "cancer" on his legs. Smith indicated he couldn`t do the tasks due to his legs, but asked to do an exercise like "the alphabet" to show he wasn`t impaired. I pointed out I have a chair to do seated roadsides. Smith agreed to do seated roadsides.

Tale of Two Reports

These reports involve the same defendant in the same county being arrested for DUI within a couple of months of each other

One of these cases was subject to a suppression hearing, and one was not

The reason for the stops has been edited out. Neither stop was challenged in court

Tale of Two Reports

Tale of Two Reports

DUI Crash

• Make sure to record when and how you “switched hats”

• Record post-Miranda statements as separate from pre-Miranda statements

• Make sure to obtain sworn witness statements putting suspect behind the wheel

Breath Sample

• Note who conducts 20 minute observation and note that it was conducted

• Note anything unusual that occurs during observation or when giving sample

• When in doubt, restart observation period

Breath Sample

Take the time to fill in the Refusal Affidavit correctly.

Breath Sample – Unusual Situations• Make sure you are familiar with statute regarding suspect request for

blood draw after breath (FSS 316.1932)• Take time to read statute• Document your efforts to assist suspect

Relevant Portion:

The person tested may, at his or her own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person`s blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person`s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person`s own expense.

Breath Sample – Unusual SituationsSample documentation in report:

During transport and during the observation period, Howard asked repeatedly what would happen if his breath sample was under the legal limit. I advised him of what would happen. Howard asked repeatedly for a blood sample. I advised him several times of the requirement in law that I facilitate a blood draw after he provides a breath sample. Upon completion of the 20 minute observation period, I requested Howard provide a breath sample. He said, "Yes sir." Howard subsequently provided two samples of .230. After Howard was advised of the breath testing results, I read the following which I printed from the relevant Florida State Statute (FSS 316.1932):

"The person tested may, at his or her own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person`s blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person`s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person`s own expense."

I asked Howard if he understood. Howard stated he did. He declined to pursue that route for obtaining a blood sample. I then read Howard his Miranda Rights from a prepared text. Howard stated he understood. Howard stated he wanted to speak to me. Howard answered the questions I asked. I then secured Howard in a holding cell while I completed my paperwork. Prior to starting, I gave Howard a cup of fresh water and made a phone call at his request. Howard then stated he wanted a blood sample. I immediately retrieved a phone book and offered it to Howard, telling him to notify me when he wanted to use the phone. Howard refused to take the phone book.

Documenting Miranda• In Florida DUI Investigations, Miranda may be read at

several different times.

• Changing Hats• When suspect is placed in handcuffs/movement otherwise

restricted• After breath sample• Prior to roadsides

It is important to document when Miranda was read and why if it was read at a place not standard for your jurisdiction.

Blood when Breath ImpracticalAgain, take time to read the relevant portion of FSS 316.1932:

“Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term “other medical facility” includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test…”

Documenting Blood when Breath Impractical

• Document why breath is impractical or impossible

• Document how you know that (who you spoke to, time, condition of suspect)

Presenting a Complete Case

It is your responsibility to present a complete case to the state attorney. Take the extra time

to include all needed documents before moving to the next case, as tempting as it may be.

Presenting a Complete Case

• Make sure the stopping officer completes a PC supplement. Follow up!

• Make sure to obtain Witness statements while on scene

• Include your speed documents• Request any 911 recordings• Make sure video evidence is properly

preserved• Address any mistakes as soon as possible in

form of supplement

Presenting a Complete Case

Writing Your Report

• Seriously consider organizing your thoughts using a rough outline before writing your report

• This doesn't have to be particularly formal, but can be a way to make sure you don’t forget an element of the stop or something significant that happened when you start writing your report

Writing Your Report

• Notes can significantly assist in making an arrest decision as well as writing your report. Take the time to jot down your observations of the driving pattern and suspect contact prior to starting roadsides. This especially helps in cases of refusals

• Make sure to review video

Case Study: Triple Refusal to Trial

This is a “triple refusal” (suspect refused roadsides, breath, and interview questions)

Suspect took this case to trial. I did some things right and some things wrong in this case

The Report

Trial

Defense asked two specific questions about my report:

– What did you mean by stilted?– You made a big deal about my client vomiting. In

fact you were pretty upset at my client, weren’t you?

– Was also attacked on not including “indicators of non-impairment” in report.

Case Study: Triple Refusal to Trial