Law Enforcement

DUI Testimony
SILVER TIPS CHECKLIST
Stops and Arrests

Maintain a Log of Stops and Arrests

Maintain a DUI Enforcement log for all suspected impaired driving number you have stopped?” It will amount to your own validation
stops. If you have not already prepared one, START TODAY! A form study if you record the results of the Standard Field Sobriety Tests
can be found in your National Highway Traffic Safety Administration (SFSTs), any Blood Alcohol Concentration (BAC) obtained and any
SFST Manual. Document your Wet and Green Lab experience as a drugs that are suspected, discovered in a blood test or found in
student and/or instructor. Record every suspected DUI stop even possession of the suspect. This is important in establishing your
if an arrest is not made. This information will allow you to give a credibility and fairness. Be prepared to testify concerning the log. It
specific number when asked by the prosecutor, “What is the number will be a great resource!
of suspects you have arrested for impaired driving versus the total

DUI Investigations Behind the B Pillar Post

When safety and opportunity permit, the law enforcement officer • How many times a day?
should take every opportunity to question the suspect at the win-
• Let the suspect provide the drug information.
dow of the vehicle while that suspect’s cooperation level is relatively
high. To be most effective, the investigation should take place in • Did you take any today? Indicate you just want to make sure the
a very friendly, non-threatening manner. Questioning should take pain does not prevent them from driving or safely controlling
place in a conversational context with open-ended questions. For the vehicle.
example: Where were you drinking…? I know that place. Who was • When and how much?
tending bar?” Thereby allowing the suspect to correct you and pro-
• Ask to see the pill bottle?
vide the name of the actual bartender. Another example: “You have
a shoulder problem huh? What medication do you take for that? • How are you feeling right now?

• How much have you had to drink tonight” (Better asked pointedly near
This allows the suspect to fill in the blanks and tell the truth about
the end of the conversation if not answered in the conversation.)
what did or did not create any impairment that is present.
• What? (beer, wine, mixed drinks, etc.)
The areas of questioning should include:
• What kind? (light, high gravity etc.)
• Do you know why I stopped you? • How big?
• Don’t be alarmed… (this helps to place the suspect at ease) I just • How many? (Asked again for consistency and to draw out details).
want to make sure you don’t have any health issues that you need
assistance with or are keeping you from safely driving tonight. • What else?

• Was there a reason for... (whatever driving behavior you observed)? • What else...until s/he says no more.

• Where are you coming from? • Where did you drink?

• Where are you going? • Where else?

• Ask details about the size and type of drinks consumed to allow the sus- • How did you pay for it?
pect to provide information about what and how much they had to drink. o Looking for credit card receipts
• Who were you with while you were there? o Looking for bar receipts
• Anything to eat? What? Where? When? What else? • Once you are finished with the conversation you can close with,
• Occupation? Physical requirements of that occupation? What? “On a scale of 0 to 10 with 10 being very impaired and 0 being totally
sober, where would you say you are right now?”
• Any injuries, illnesses, or medical conditions? This can be
introduced in a conversational tone: “How are you feeling? I Feel free to brainstorm and add to this list as you see fit. Change
just need to make sure you don’t have any physical injuries or the order of the questions to make it work for you. Make it rou-
ailments that would prevent you from safely driving.” tine and you will be surprised at the information you will discover.
Remember, you are searching for the truth. It is a conversation NOT
• Are you being treated by any doctor for these conditions?
an interrogation. Until you find probable cause this driver may be
• Name of Doctor? innocent of impaired driving. But even when you make a positive
• Have you been prescribed any treatment? (Physical Therapy for example) probable cause (PC) determination, the friendly, conversational
tone should continue as long as officer safety allows.
• Are you taking any medications for that problem?

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Search

Search
Under Arizona vs. Gant, it is likely a thorough search of the • Cannabis and other drug paraphernalia;
suspect’s vehicle can only take place if you have probable cause
• Open alcohol containers;
that fruits or instrumentality of a crime are present, or the
Fourth Amendment exceptions of consent or plain view exist. The • Vomit;
pre-arrest conversation described above may lead to the required • Pills and pill bottles; and,
probable cause. Some of the useful and likely fruits and instru-
• Prescription pads.
mentalities of the crime can be:
Remember, when drug-impaired driving is suspected, a Drug
• Bar receipts indicating the number and types of Recognition Expert (DRE), if available should be called to evaluate
beverages consumed. the driver AFTER you have completed your investigation.
• Credit card receipts showing establishments frequented and the
Also, remember drug-impaired driving cases may lead to major
amount of money spent. These also help establish a timeline.
drug investigations.

Trial Tips
Qualifying Law Enforcement Witnesses
All witnesses should be properly questioned at the start of their This document should include all of the items listed above and
direct examination to establish credibility and expertise. Most of any other information that can be used by the prosecutor to
us are familiar with this relative to expert witnesses but it is espe- introduce the officer to the jury Including but not limited to:
cially true with arresting officers since they are the key witness
Wet and Green lab participation, experience as an instructor,
in the impaired driving trial. Providing the jury with information
course descriptions, all in-service trainings and topics, time on
relative to training and experience makes the arresting officer
the force, and duties. For DREs, include DRE pre-school, DRE
an expert in the eyes of the jury. Not all prosecutors will take
school, evaluations in the presence of instructors, the knowl-
the time to adequately qualify an officer. If this is the case, the
edge exam, performing lifesaving/rule outs and their purpose,
law enforcement witness can take action to ensure adequate
and all of their DRE training and experience before and since.
qualification. This is done by handing a copy of their resume or
curriculum vitae (CV) to the prosecutor who will be trying the case This document should be updated as new training is received and
while saying, promotions are obtained. Consider this as part of your experience
and qualifications for your search warrant affidavit.

“Here is a copy of my resume. Law enforcement should be

I am prepared to testify to everything listed there
encouraged to administer SFSTS
to introduce me, to build my credibility and to in the standard format following
personalize to the jury. I’m happy to go over that with
you now if you would like.”
the exact instructions of the
NHTSA SFST Manual.
Resume/Curriculum Vitae This eliminates harmful defense cross-examination and ensures
the successful prosecution of impaired drivers.
Witness qualification should include professional and non-
professional background, occupations, hobbies, and volunteer Officers should be encouraged to refer to their SFST manuals at least
work including military service, rank, ALL training not just once a month to review the proper SFST procedures. This should
impaired driving related training, and experience as well as also be done prior to going to court to testify. When possible, law
education. This non-professional background personalizes the enforcement should review the manual and read portions out loud.
witness making them more likeable and therefore more credible. This will aid in retention and should definitely be done before trial
This is especially true relative to law enforcement witnesses to prepare for your testimony. Included in this preparation should
where the jurors should see the individual behind the badge. be a review and reading of the police report to ensure retention and
To facilitate their proper qualification, officers should prepare a accuracy in testimony and in the recitation of technical terms.
document called a Curriculum Vitae (CV) or Resume.

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 Trial Tips

NOTE
Jurisdictions should consider conducting NHTSA SFST Refresher Important Topics of DRE Testimony
Manual training. This could be done in conjunction with officer’s
recertification on breath alcohol testing instruments. Be prepared to lay an adequate foundation for DRE testimony
beginning with officer qualifications and following with:
Remember: Even when administered in the wrong order the
evaluation of the subject can still be valid. • Explanation of the drug matrix –

o why seven drug categories,

Using Looping Questions and Answers o how the matrix is used,

When Establishing Reasonable o the origin of the standards,

Suspicion and/or Probable Cause o provide an example of differing drug categories,
If the direct examination rushes through critical portions of the o explain how not all signs and symptoms are required to
factual presentation, the jury may be under the impression the im- find impairment of a particular drug category,
paired driving incident only took a few seconds and as a result was
o initial observations of the defendant,
not dangerous or the defendant was not impaired. To avoid this,
prepare for direct with your trial prosecutor. Suggest repetition and o conversation with the arresting officer,
looping questions which allow the jury to better remember and be o medical rule out,
able to envision what actually happened. This is particularly import-
o explain the DRE is not only trying to determine if
ant regarding the arresting officer, their observations of driving and
impairment is present, but is interested in the safety of
the evidence of impairment as well as the observations of the DRE
the defendant.
during each stage of the evaluation. Listen carefully to all questions.
Answer only the question, then stop and wait for the next question. Follow this again with lifesaving events initiated by the DRE
on drug-impaired subjects. Accuracy rate (someone is going
For example: to ask the question, so you may as well introduce it in direct
examination). Be prepared to explain on direct examination
why the DRE’s observations differ from the arresting officer. It
Q: What first drew your attention to the defendant’s white is a common defense tactic to talk about the missing signs or
Ford Mustang? symptoms as if the DRE is unable to offer an opinion. Be prepared
to address this in direct examination. It is not uncommon. Do not
A: I saw it cross the centerline with its driver side tires. forget the effect of homeostasis, which is one of the reasons for
Q: When you saw it cross the centerline with its driver side the discrepancy in the time between the arrest and the DRE’s
tires were you able to tell how far across the centerline evaluation as well as polydrug use.
those tires were? Remember to use the DRE to strengthen other parts of the case
A: Yes. such as the stop and roadside SFSTs.

Q: How far across the centerline were the driver’s side tires? Do not forget to use visual aids when appropriate. When the
DRE teaches them something it builds his/her credibility. Have
A: Approximately one foot. the DRE demonstrate the use of a pupilometer and how blood
pressure is taken. Prepare a chart listing the signs of impairment
Q: Were you able to tell how far the defendant’s Mustang
observed by the DRE, arresting officer and other witnesses and
travelled with the tires over the centerline approximately
relate that to the findings. Use any videotape of SFSTs at roadside
one foot?
or during the DRE evaluation Eye signs are some of the best
A: Yes. evidence of impairment. Show the jury videos of the defendant’s
eye signs from a video eye sign recorder. Eyelid tremors, lack of
Q: How far did the defendant’s Mustang travel with the tires convergence, and rebound dilation are dynamic visuals for the
over the centerline approximately one foot? jury to see. Prepare a chart with the one step protocol and a chart
with the seven drug categories.
A: Approximately two tenths of a mile.

This can be done before the dash cam video is shown if one exists.
This allows the jury to see the picture in their mind’s eye in a way
that will be powerful and permanent.

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Trial Tips

The Relevance Reveal Summary Conclusion of

The jury knows less about this case than anyone else in the Officer’s Direct Testimony
courtroom. Therefore, the evidence should be presented via direct When ending the direct examination, the officer should be
examination without presuming they understand the relevance of prepared to summarize the evidence supporting the charges filed.
technical aspects of the case. This includes among other things This takes some review and practice. For example:
SFSTs, ARIDE or the DRE evaluation. The prosecution is responsi-
ble for revealing that relevance. Without this “reveal” the defense
is free to use the common defense tactic claiming that the SFSTs
Q: D
 id you form an opinion of whether the defendant could
are just irrelevant. The defense will try to discredit the SFSTs and
safely drive?
the jury’s perception. The prosecution must show the jury why
they should care about the SFSTs. To do this, evidence must be A: Yes.
presented from the arresting officer that explains that SFSTs are
divided attention, psychophysical tasks and what those terms Q: What is that opinion?
mean. The officer must then explain why the defendant driver’s
A: Based upon the defendant crossing the centerline with his
performance on those divided attention, psychophysical tasks are
driver side tires by over one foot twice and crossing the fog-
important to him/her. The response of course is because driving
line with his passenger side tires by approximately one foot
is a divided attention, psychophysical task. When asked to explain,
once. Based upon the defendant’s taking nearly 20 seconds
the officer details all of the tasks involved in driving that fit that
to respond to my blue lights and siren. Based upon the odor
definition. The prosecutor may want to write those tasks on a flip
of intoxicants and marijuana coming from the defendant.
chart or on a presentation slide as the officer testifies (but not
Based upon his fumbling with his driver’s license when I
before). The officer concludes by stating something like, “All of
asked him for it, his bloodshot, watery eyes, his slurred
these driving tasks are divided attention psychophysical tasks as are
speech, his stumbling when he got out of his car, the…it was
the Field Sobriety Tests, I administered to the defendant.” It will be
and is my opinion that he was under the influence of alcohol
at that moment that the jury understands their relevance and the
and THC, was impaired and could not safely drive.
ability of the defense to persuade the jury is lessened. In addition,
the officer may be prepared to discuss the visual difficulties expe-
rienced by a driver with lack of convergence, dilated pupils during
sunlight, constricted pupils in the dark and the effect of altered No further questions. This allows the jury to hear a powerful
perception of time with certain Romberg test results. summation from the officer leading them to conclude that the
defendant was guilty of DUI.
Booking Photos
Arresting officers should provide the prosecutor with copies of
booking photos and photos taken in the field when they depict
the physical condition and appearance of the impaired defendant.
Also consider a photocopy of the driver’s license or ID card to
avoid identification hearings.

Be safe out there!

Author
Jim Camp J.D.
Dynamic Messages LLC
651-260-9183
www.dynamicmessages.net
Derived from the DUI/DUID Silver Bullet Presentations

5
 ü Conclude with “All of these driving tasks are divided 7
attention psychophysical tasks as are the Field Sobriety
Tests, I administered to the defendant.”
ü Discuss the visual difficulties experienced by a driver with lack of
convergence and dilated pupils
ü Discuss the effect of altered perception of time with certain Romberg
test results.
Law Enforcement
Provide Booking Photos and Photocopy
DUI Testimony
of the Driver’s License or ID SILVER TIPS CHECKLIST
Arresting officers should provide the prosecutor with copies of
booking photos and photos taken in the field when they depict the
physical condition and appearance of the impaired defendant.

Summary Conclusion of Officer’s Direct Testimony

WHY Summarize the evidence to support the charges filed.
This allows the jury to hear a powerful summation from
the officer
ü Be prepared to state your opinions on whether or not the defendant
could drive safely.
ü Back up your opinion by summarizing all of the evidence piece by
piece.

QUESTIONS

Q: Did you form an opinion of whether the defendant could

safely drive?
A: Yes
Q: What is that opinion?

Be safe out there!

Author
Jim Camp J.D.
Dynamic Messages LLC
651-260-9183
www.dynamicmessages.net Print doubled sided.
Derived from the DUI/DUID Silver Bullet Presentations Fold vertically then in half again.
Maintain a log of DUI stops and arrests 1 ü Describe accuracy rate of the DRE evaluation. 6
for courtroom testimony ü Ensure DRE testimony strengthens other parts of the case,
such as the stop and roadside SFSTs.
WHY It establishes your credibility and fairness ü Explain why the DRE’s observations differ from the arresting officer.

ü Maintain a DUI Enforcement log for all suspected impaired driving stops.
ü Explain missing signs or symptoms, including polydrug use and
homeostasis, one reason for discrepancy in the time between the
ü Use a simple form like the NHTSA SFST Manual. Update it regularly.
arrest and the DRE’s evaluation.
ü Include Wet and Green Lab trainings as a student and instructor.
ü Demonstrate the use of a pupilometer and how blood pressure is
ü Record all DUI stops even if an arrest is not made to accurately recall prosecutor taken, heart rate and temperature.
questions such as, “What is the number of suspects you have arrested for impaired
ü Use visual aids.
driving versus the total number you have stopped?”
• Chart listing the signs of impairment observed by the DRE, ar-
ü Record Standard Field Sobriety Tests (SFST) results, PBT or roadside oral fluid
resting officer, and witnesses.
test results, any BACs obtained, and any drugs suspected, discovered in a blood
test, or found in possession of the suspect. • Video of SFSTs at roadside or during the DRE evaluation.
• Videos of defendant’s eye signs (Eyelid tremors, lack of conver-
gence, and rebound dilation).

Engage in thorough but non-threatening • Chart with the 1-step protocol and a chart with the 7- drug cate-
gories.
conversations in your initial approach
• Provide prosecutor with copies of booking photos and photos tak-
WHY A friendly conversation promotes safety and can en in the field depicting the physical condition and appearance of
improve your investigation and the interaction the impaired defendant.

ü When safety and opportunity permit question the suspect at the window of the The Relevance Reveal-Present evidence via direct
vehicle.
examination to explain relevance of technical DUI
ü Be respectful and present in a friendly, non-threatening manner. case aspects.
ü Use a conversational context and tone.
WHY Most jurors will not understand the relevance unless it
ü Use open-ended questions allowing the suspect to fill-in the blanks, and inform is clearly explained.
you of reasons for the driving behavior you witnessed.

ü Add to this list of questions or change the order of the questions, and make it part ü Explain relevance of ARIDE and/or the DRE Evaluation.
of your routine.
ü Prosecutor must make evidence relevant to case for jurors.
ü Arresting officer should explain the terms in SFSTs (divided atten-
REMEMBER
tion, psychophysical tasks).
If you find probable cause to investigate further, the ü Explain why the defendant driver’s performance on those tasks is
friendly, conversational tone should continue if officer important and how they work together.
safety allows.
ü Prosecutor should present tasks on a presentation slide as the offi-
cer testifies (but not before).
Use Looping Questions and Answers 5 Sample questions: 2
When Establishing Reasonable Suspicion
and/or Probable Cause • Do you know why I stopped • Who were you with while you
you? were there?
WHY To allow the jury to better remember and understand
your observations of driving and evidence of impairment • Don’t be alarmed…(this is • Did you have anything to eat?
and DRE observations. added to place the suspect What? Where? When?
at ease) I just want to make
ü Prepare for direct examination with your trial prosecutor ahead of sure you don’t have any • What is your occupation?
time. health issues that you need Physical requirements of that
ü Suggest repetition and looping questions. Listen carefully to all assistance with or that are occupation?
questions. keeping you from safely • Are you being treated by any
ü Answer only the question posed, then stop and wait for the next driving tonight.) doctor for physically limiting
question. conditions? (Name of Doctor)
• Do you have any injuries,
ü Answer questions while dash or body cam video (if available) is illnesses, or medical
shown. • Are you taking any
conditions? medications for that problem?
Lay the foundation for DRE testimony • Are you being treated by any • How many times a day?
doctor for these conditions?
WHY A majority of jurors do not know what a DRE is and the
(Name of Doctor) • “How much have you had to
expertise they possess
drink tonight” What? (beer,
• Are you taking any whiskey, mixed drinks, etc.)
ü Begin with DRE officer qualifications. medications for that problem?
ü Explain the drug matrix – • What kind? (light, high gravity,
• How many times a day? Did etc.)
• why seven drug categories;
you take any today? When and
• how the matrix is used; how much? • How many? What else?
• the origin of the standards;
• Was there a reason for... • On a scale of 0 to 10 with 10
• provide an example of differing drug categories; being very impaired—0 being
(whatever driving behavior
• explain that not all signs and symptoms are required to find im- you observed)? totally sober, where would
pairment of a particular drug category; you say you are right now?”
• Where are you coming from?
• initial observations of the defendant;
• conversation with the arresting officer; and, • Have you been drinking
• medical rule out. alcohol?

• What size of drink? What

type? How many?
The Search Process 3 DUI Trial Tips—A Piece of Cake 4

Look for instrumentalities of the crime Qualify Law Enforcement Witnesses

WHY Under Arizona vs. Gant, a thorough search of the WHY Prosecutors who provide the jury with officer training
suspect’s vehicle can only take place if probable cause and experience will demonstrate the arresting officer’s
has been established or Fourth Amendment exceptions expertise enhancing credibility.
of consent or plain view exist. The pre-arrest
conversation described above may lead to the required ü Properly question law enforcement witnesses at the start of their
probable cause. direct examination
ü As a prosecutor, make time to adequately qualify an officer
Examples of instrumentalities of the crime:
ü As a law enforcement witness, ensure adequate qualification by
• Bar receipts indicating the number and types of beverages sharing your resume
consumed
Resumes should include:
• Credit card receipts indicating purchases made and ü Professional and non-professional background, occupations, hob-
establishing a timeline bies, and volunteer work.
• Open alcohol containers ü Military service and rank.
• Cannabis and other drug paraphernalia ü All law enforcement training, experience, and education such as:
Wet/green lab participation, instructor experience, course descrip-
• Pills, pill bottles tions, all in-service trainings and topics, time on the force and duties
• Prescription pads ü DREs should include DRE pre-school, DRE school, evaluations in the
presence of instructors, the knowledge exam, performing lifesaving/
EXPERT ADVICE rule outs, their purpose, and all of their DRE training and experience
before and since
If drug-impaired driving is suspected, a DRE should be
called in to evaluate the driver AFTER you have complet-
ed your investigation. Some cases may lead Administer SFSTs In the Standard Format Following
to larger drug investigations. the Exact Instructions of the NHTSA SFST Manual.
WHY This increases the likelihood of a successful prosecution
for impaired driving cases.
ü Refer to your SFST manual at least once a month to review the prop-
er SFST procedures.

NOTE

Jurisdictions should consider conducting NHTSA SFST Re-

fresher Manual training. This could be done in conjunction
with breath alcohol testing recertification training