HOW DO VIOLATORS AVOID CONSEQUENCES?

Witnesses Failing to Appear

Officers commonly complain that, if the suspect repeatedly fails to appear, the matter is rescheduled and a bench warrant issued for the suspect’s arrest. However, when

prosecution witnesses fail to appear just once, the charge is simply dismissed. In

Minnesota, when implied consent law driver’s license revocation hearings are held in the courts, the common reason that the violator avoids the consequences mandated by the statute is that one or more essential witnesses fail to appear.

In some cases, the witness has not received notice of the hearing, a problem that can be addressed by examining notification systems to ensure that notices actually get to the witnesses.⁹⁰In each case where a witness fails to appear, a check should be made to determine why that happened, and efforts should be made to find ways to prevent that problem in the future. Thus, when some medical personnel refused to appear in response to letters requesting their presence, formal subpoenas enforceable by the contempt power of the court secured their attendance at subsequent hearings.⁹¹

Insufficient Police Training

While full-time traffic officers tend to be relatively well trained, when laws become too complex, even the most diligent and best-trained officers may not be able to remember to look for and document all elements necessary for a successful case. General patrol

90This writer has had a number of cases in which a police department assured the prosecution that the officer had received the notice only to find out, too late, that somebody merely put the notice in the officer’s box at the station—

while the officer was on vacation.

91In one Ramsey County case some years ago, a physician refused to appear in court. The judge sent the sheriff’s deputies to arrest him, and he was brought back to the courtroom, protesting loudly, in handcuffs. The judge informed him: “Doctor, you have to understand that medicine is not the only game in town.”

officers, who do not have as much training in DWI enforcement, have a greater problem knowing what to look for, how to find it, and how to document it. In some cases, the officer may lack even rudimentary training in what to look for and may be unable to find evidence to establish probable cause for arrest.

The obvious remedy is additional training. Most officers are interested in improving their knowledge and skills and welcome the opportunity to get additional training so that they can avoid making mistakes that bring the prosecution to an unsuccessful conclusion.

Inability of Officers to Adequately Articulate What Is Known

Some cases are lost because an officer is unable to articulate on the witness stand information actually in his or her possession. Thus, even though time of day, day of the week, and location form a part of the officer’s consideration in investigating a suspected DWI violation, many officers forget to articulate that the improper driving conduct was observed as the driver left the parking lot of a bar at bar closing time on a weekend night.

This is sometimes due to inexperience and lack of training, a problem that can be remedied by experience and additional training.

Gaps in Written Reports

A common defense tactic is to ask the officer if he or she is trained to write complete and accurate reports, containing “everything important” they know about the case. If the officer answers in the affirmative the attorney may put on a time-consuming show asking about details never mentioned in testimony or in the reports. If the officer answers in the affirmative and testifies to details the officer recalls but did not include in the report, then the questions can become more hostile, suggesting that the officer is embellishing or fabricating.

One way to address the issue is to train officers to write more detailed reports and insist that they do so. However, to the extent that this adds to the burden of paperwork, this insistence may have the net effect of discouraging enforcement efforts.

Another way to address the issue—suggested to this writer by a judge and former prosecutor—is to train officers to answer in the negative when asked if they are trained to include everything important in their reports. When prepared to answer that the officer does not attempt to record everything important and cannot anticipate what some other person might later consider important, then the report is simply a summary or outline of the events to refresh the officer’s memory at trial.⁹²

Of course, the more complete the report is, the more helpful it is to the prosecutor.

Additionally, the defense attorney is more likely to conclude that the officer and

prosecutor are well prepared and that a resolution short of trial is advisable. As a result, the officers who write the most detailed reports are likely to spend less time sitting around the courthouse waiting to testify.

92The judge advised that when he prosecuted a case against an attorney he knew would ask an infinite number of questions about facts not involved in the case, he had the officer prepared to disagree that the report was intended to contain “everything important.” The cross-examination, which had been anticipated to go for two hours, came to an abrupt end.

I-18 TRB Circular E-C020: Issues and Methods in the Detection of Alcohol and Other Drugs

Lack of Preparation by Witnesses And Prosecutors

Whether one is preparing a wall to receive a new coat of paint, preparing the soil to start a new garden, or preparing for trial, better preparation produces better results. In some police departments, officers show up for hearings without any copies of their reports, unable to recall the facts of the case until they have read the reports, and expect the prosecutor to provide reports at the time of hearing. Needless to say, such haphazard preparation is not calculated to produce a high rate of success. Other officers come with their reports, have read and reread the reports, and are thoroughly prepared to describe what happened.

Likewise, prosecutors who put in little effort into preparation cannot expect to have as good results as those who prepare thoroughly. Not only should the prosecutor become very familiar with the facts recorded by the officer, but the prosecutor should also look for gaps in the evidence and communicate with the officer to seek answers. The number of unpleasant surprises can be significantly reduced with adequate communication.

Negative Judicial Attitudes

Fortunately, the majority of judges are quite conscientious in the performance of their duty to apply the law fairly. However, certain individual judges may be indifferent to legitimate public concerns about traffic safety and, in some cases, hostile to accepted enforcement procedures.⁹³Where the judge is open to persuasion, better preparation may overcome insufficient familiarity with the law or moderate bias. Where the judge is very biased, contemptuous of the appellate courts and unwilling to follow the law, the

prosecution must be prepared to remove that judge or to appeal decisions in cases where an appeal is possible. Beyond that, it may be possible to have other judges help rein in a

“loose cannon,” and call the attention of the public to the judge’s unwillingness to follow the law—especially when the judge faces election.

Statutory “Loopholes”

The more complex a law and the more requirements that are imposed on the officer, the more chances there are for an officer to slip up and make a mistake by which the violator can escape the consequences of misconduct. While some of the requirements may be constitutional imperatives, others are not.

Although in Minnesota the DWI law has applied throughout the state rather than being limited to “streets and highways” since 1937, the language of the implied consent law once limited its application to streets and highways, precluding its use when the driver was found in a private parking lot.⁹⁴That limitation was soon removed, and since then the statute has applied in all places where the DWI law applies: every square inch of the state.

93One judge advised this writer that it was his view that it was his function as a judge to find ways to circumvent the statutes. Another judge, when advised that the prosecutor was obligated to enforce the law the legislature enacted, blurted “why did they pass such a damn foolish law?” Others, more subtle, can simply resolve factual issues against the prosecution secure in the knowledge that credibility questions are essentially immune to any risk of reversal on appeal.

94See State, Dept. of Public Safety v. Halverson, 292 Minn. 468, 194 N.W.2d 573 (1972).

In Minnesota, for several years there have been separate DWI/Implied Consent laws for most motor vehicles, snowmobiles and all-terrain vehicles, motorboats, and aircraft. While the legislature has been making them more uniform, it has not yet simply had one law cover all such vehicles. This leads to some anomalies and potential

problems. For example, the statutory definition of “peace officer”—the person who may invoke the authority of the implied consent law—varies from statute to statute. Thus a conservation officer employed by the Department of Natural Resources (DNR) would be a “peace officer” if the vehicle is a snowmobile, ATV or motorboat, but not if the vehicle is a pickup truck or car. The DNR officer can still make the DWI arrest but lacks the authority to make the test request.⁹⁵Of the several Indian reservations located in

Minnesota, the Mille Lacs Band has made agreements with the state that has led to their officers being recognized as having all the authority of a municipal police force working closely with both the local sheriff’s departments and the state patrol. Mille Lacs Band officers may invoke the Minnesota implied consent law, but officers employed by other reservations or by the Bureau of Indian Affairs may not. Likewise, officers of various federal agencies can arrest for a DWI violation, at least as “citizens,” but they are not

“peace officers” for the purposes of the implied consent law.

Likewise, the information required by statute to be provided to the suspect has differed depending on the type of vehicle involved. This can present problems when an officer arrests a drunken pilot for flying under the influence of alcohol and, because no aircraft Implied Consent Advisory form is available, uses the standard form used for drivers of cars, trucks, and other land vehicles. Does the reading of the “wrong” advisory form require suppression of all evidence resulting from the test request?

Other problems can arise when statutory amendments change the information required, and the officer uses an outdated form. Is it fatal that the form did not contain the precise information required by the amended law?

In Minnesota, there is a special statutory restriction regarding the choice of tests.

The officer gets to choose what test to offer, but if that choice is either the blood test or the urine test, no action may be taken against the person for refusing the blood test unless an alternative test was also offered. Likewise, no action may be taken against the person for refusing the urine test unless an alternative test was also offered. If the officer forgets to offer an alternative test, there is no test—and no driver’s license revocation.

Furthermore, the person cannot be charged with the separate crime of refusing to submit to testing under the implied consent law.

At one time, the statutory language required that a blood test be offered in all cases.⁹⁶The argument was then made that it was fatal to offer a choice of all three available tests at once, instead of offering an alternative test only after the blood test was refused, a claim rejected by the court.⁹⁷Likewise, the court rejected the contention that

95At one time, the definition of peace officer included those employed by a “municipality,” but the license revocation was rescinded because the officer was employed by a “township” and, thus, was not a peace officer. See State, Dept. of Highways v. O’Connor, 289 Minn. 243, 183 N.W.2d 574 (1971). At the time, while part-time untrained officers could wear a badge, carry a gun, and make a DWI arrest, only a full-time officer with special training in traffic law was authorized to make the test request. See State, Dept. of Highways v. Halvorson, 288 Minn. 424, 181 N.W.2d 473 (1970). Those particular restrictions are long gone, but the statutes have not yet been broadened to include all law enforcement personnel who may arrest for criminal offenses.

96See State, Dept. of Highways v. McWhite, 286 Minn. 468, 176 N.W.2d 285 (1970).

97See State, Dept. of Highways v. Cornelius, 289 Minn. 521, 184 N.W.2d 779 (1971).

I-20 TRB Circular E-C020: Issues and Methods in the Detection of Alcohol and Other Drugs

because all three tests were theoretically “available,” the officer must offer all three statutory tests rather than a blood test and one alternative test.⁹⁸Currently, if the officer offers only a blood test, or only a urine test, there is no problem unless the person refuses to submit to that test.⁹⁹

In each state, there are probably features that provide “loopholes” or opportunities for mistakes. In some states, there are very rigid requirements on how test evidence is obtained or handled, or on how test evidence is presented in court. This can involve such matters as requiring a specific number of seals on a blood test kit or requiring documentary evidence in every case that a breath test operator is qualified to administer the test instead of simply having the operator testify to his or her qualifications. Whether there are six or seven seals on a blood test kit does not appear to have any genuine bearing on the question of whether the sample is what it purports to be or whether the analysis of the sample produced a reliable result. Likewise, requiring documentary proof of an operator’s qualifications in every case would appear to be a waste of judicial time and resources, offering evidence on matters about which there can be little serious dispute.

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