Thomas G. WitkopLaw Offices

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If It's Not in the Police Officers Report It Did Not Happen

I was recently in Cecil County Maryland. I was representing a professional driver who drives over 100,000 miles per year. This was his second charge for driving while under the influence of alcohol in the past five years. If he suffered a conviction he would lose his job as a professional driver. My client had done a great deal in terms of dealing with his alcohol issues-he received an alcohol evaluation, followed up diligently with the classes which were recommended, went to Alcoholics Anonymous and completely abstained from further drinking.

In a drunk driving case, generally there is a police report written by the arresting officer. That is not usually supplied to the defendant automatically. Most defendants do not know about this report. It is a simple matter of requesting that report from the prosecution and it must be provided. In this case the police report stated that the officer watched my client at approximately 2:30 a.m. begin to make a left turn and then continue straight and thereafter change lanes from lane number one to lane number two without a turn signal. Thereafter, the officer stopped my client, smelled the odor of alcohol, my client did poorly on the field sobriety tests, and my client had a breath test in excess of the legal limit.

The fourth amendment of the United States Constitution provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This amendment applies to people driving automobiles. Based on the police report I did not believe that the officer had the right to stop the motorist. There was no evidence, in my mind, that my client had violated any traffic laws and consequently the officer could not make the stop.

The case was called to trial. The officer testified that he saw my client begin to make a left turn and then abruptly go to the right almost striking the officer and causing the officer to brake hard and veer away to avoid a collision. You can imagine my surprise. This was not in the police report. The officer further testified that when my client changed lanes he crossed a double yellow line. More surprise to me.

One of the fundamental aspects of American criminal jurisprudence is the right to cross-examine witnesses. It is normal for a witness for the state to want to tell a story which supports the state's case. That story when it is finished sounds complete and convincing. Cross examination is key to really making the story complete. It allows the examiner to explore parts of the story that the witness did not want to reveal. It allows the examiner to point out contradictions in the witness's story.

In this particular case I examined the police officer about his report. In cross examination the officer admitted that the police academy taught him to write reports and that those reports must be truthful and accurate and complete. Further, he acknowledged that the reports were very important so that he could remember the events accurately, the prosecution could look at the report and develop a theory of the case and the defense could rely on the report that there would be no surprises. The officer further admitted that his memory was freshest when he wrote the report because he wrote the report perhaps one hour after the arrest and a trial we were approximately 8 months postarrest. The officer further admitted that my client cutting him off was a very significant factor and that he had omitted that from the report. When I asked the officer had he ever seen double yellow lines on the road where the lanes headed in the same direction he stated he had not and perhaps he was mistaken. He then said it was a single yellow line. Again, when asked if he had ever seen a road with a single yellow line with two lanes heading in the same direction he agreed he had not. He finally admitted he had no idea what the lines were.

At this point in the case I argued to the judge that the officer's report should be the evidence that the judge considers and not the officer's testimony. The report was much more recent to the time of the arrest and should be an accurate reflection of what happened. The judge agreed and found that my client had not made any legally recognizable driving violations which allowed the stop. The judge ruled that the stop was illegal. At that point, there was no evidence of drunk driving and my client was acquitted of all charges.

I was pleased and somewhat surprised with this result. Frequently, I am used to the 80% rule. The 80% rule is that the officer has 80% of his information in the report and then at trial adds 20% which is a complete surprise. Most judges seem to allow this. This judge in Cecil County did not and I believe that the right result followed.

My client was also pleased. No conviction, no jail, no points, no fine, no probation. Perhaps I am naïve but I believe this experience had enough of an impact so that he no longer drinks and drives.
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