By Stephen Hayne

Washington Association of Criminal Defense Lawyers

Cross of Cop Checklist

1. REPORT
   • Have made many stops before/since def.
   • Purpose to make record of details
   • Include everything important
   • Reviewed prior to the trial
   • Had to refer to it many times on direct
   • Couldn’t recall many specifics without it
   • Have ticketed many people before/since
   • Have written many reports
   • Monthly average of tickets
   • Monthly average of DUI citations
   • Name of person ticketed before client
   • Have never been wrong
   • Have sometimes mixed up facts of one case with another

2. PROFESSIONAL WITNESS
   • Trained how to testify at academy
   • Lots of practice
   • Never testified DUI defendant not under influence
   • Never testified for a defendant in a DUI case
   • No medical degree
   • Based opinion on observations of def that night

3. BIAS
   • Do you drink
   • Drive after drinking
   • Agree not inherently unsafe
   • Ever in accident involving drunk driver
   • In middle of night – you look for drunk drivers
   • When first noticed client, suspicious might be drunk driver
   • Often see people do what client did who have had zero to drink

4. DRIVING
   • Sped up to catch client
   • How fast did you go
   • Your speed not necessarily dangerous, was it
   • Client’s speed constant
   • Proper lane travel
   • Signaled
   • Responded properly to emergency lights
   • Parked safely
   • No problem:
     • placing car in park
     • setting brake
     • opening window
     • producing license
     • understanding requests
     • undoing seat belt
     • getting wallet out
     • putting wallet away
     • opening door
     • stepping out of car
     • closing door
     • Didn’t appear unsteady on feet
     • No problem walking to shoulder

5. SETTING FST SCENE
   • Parked your car at angle behind client’s
   • Had client move to shoulder because traffic dangerous
   • How wide was shoulder
   • Gravel/guard rail at shoulder’s edge
   • Traffic continued to pass in adjacent lane
   • Left emergency lights on
   • Left headlights on/bright
   • Did client face towards or away from traffic (if toward: blinded by headlights – if away: no warning as cars whizzed by)
   • Cop’s experience with FST’s:
     • First performed at academy
     • Hundreds of times since
     • First time in middle of day
     • In well-lit room
     • When well-rested
     • When relaxed
     • No traffic whizzing by
     • No traffic whizzing by
     • Comfortable temperature
     • Didn’t do as well first time as now
     • Got better with practice

   • Back to FST scene
     • Middle of your work day
     • Well after defendant’s normal bedtime
     • Dark
     • Numerous moving shadows/distractions
     • Cold/wind
     • At least some slope
     • Gravel/debris collects on shoulder
     • Don’t know how long since last swept
     • Bystanders/other officers
     • Chatter from police radio
     • Distractions from passing cars

   • What FST’s actually measure:
   • Intended to measure general balance, coordination and ability to follow instructions
   • Use same tests for everyone
   • The tests do not vary depending on differences in:
     • Age
     • Physical condition
     • Illness
     • Fatigue
     • Suitability of the FST site
     • Nervousness
     • Whether overweight
     • Type of shoes
     • Type of clothing

   • Most people nervous when stopped
   • Normal for people to make physical and mental mistakes when nervous
   • Don’t know what was going through client’s mind during these tests
   • No objective way to measure level of nervousness of client

6. INDIVIDUAL TESTS
   • ABC’s
     • Didn’t ask when client last performed
     • Don’t know if last week or in third grade
     • Didn’t give client chance to practice
     • Didn’t give client second chance
     • Did you take notes at the scene
     • Where are notes now

   • RHOMBERG/BALANCE
     • Looking for numerous symptoms
     • Ability to understand and follow instructions
     • Ability to maintain balance
     • Client did:
       • Put heels together
       • Hold arms at side
       • Tilt head back
       • Close eyes

     • Did not tell client not to sway
     • Did not tell him to stop swaying
     • Afterwards, didn’t tell him he swayed and let him try again
     • Not normal to keep arms at side while balancing, is it

   • FINGER TO NOSE
     • Again looking for several things
     • Ability to understand and follow instructions
     • Ability to tough tip of nose with finger tip
     • In fact, client did follow those instructions up to very end
     • You didn’t give client second chance

   • HEEL TO TOE
     • Looking for numerous mistakes:
       • Ability to understand and follow directions
       • In fact, client did [list all he did correctly]
       • Imaginary line
       • Some people have difficulty with balance even when sober
       • Didn’t allow client to practice
       • Didn’t note distance between heel and toe
       • So to you, ½” is same as 3”
       • Unnatural to do test without raising arms

7. NO BASIS FOR COMPARING CLIENT’S PERFORMANCE
   • Had never met client before that night
   • Have never heard or seen him:
     • Speak
     • Walk
     • Stand
     • Do balance tests

   • Agree alcohol effects people differently
   • Effect of alcohol can depend on:
     • Amount of rest person had
     • What person’s had to eat
     • Individual metabolism
     • Tolerance
     • Drinking habits
     • What a person is drinking
     • Over what period of time

   • You don’t know any of those things about my client
   • No knowledge of what’s “normal” for client
   • Odor doesn’t tell how much a person’s had to drink
   • Odor doesn’t tell you whether person affected
   • Watery-bloodshot eyes doesn’t mean person intoxicated
   • Pupils affected by intoxication
   • Normally slow to react if significant amount of alcohol in system
   • Didn’t measure pupil reaction did you

8. NO PROBABLE CAUSE UNTIL AFTER TEST
   • Didn’t arrest until end of tests
   • Must arrest when have probable cause
   • PC means “reasonable grounds”
   • So didn’t conclude had reasonable grounds [after each field sobriety test]
   • There was still question in your own mind until very end

9. MIRANDA RIGHTS UNDERSTOOD/242 RIGHTS
   • Read Miranda rights to def
   • Read 242 rights to jury
   • Satisfied client understood
   • Didn’t express any confusion
   • Readily agreed to answer questions
   • Readily agreed to take breath test
   • Fully cooperated/did not request attorney

10. NO FST’S AT STATION
    • How long with client in total
    • Ever out of your sight prior to breath test
    • Never went to bathroom
    • In no particular hurry
    • Agree FST conditions much better at station
    • Didn’t have client do same FST’s at station

11. CONTINUOUS OBSERVATION
    • Kept client under continuous observation prior to DM Required by WAC
    • To make sure client doesn’t put anything in mouth or belch
    • Must enter data
    • Using the Keyboard

12. RADIO FREQUENCE INTERFERENCE
    • DM located in middle of police station
    • Officers free to come in and out
    • No sign warning keep walkie talkie’s off
    • Police transmitter located in building
    • Parking for patrol cars nearby
    • Microwave
    • Computers
    • Copiers
    • Police radios

13. CONCLUSION
    • Fully cooperative throughout
    • Didn’t note any unusual actions
    • Didn’t note any unusual statements
    • Didn’t ask client why he hit fog line
    • If putting in tape, etc, would have less significance than not paying attention
    • Didn’t do follow up investigation per client’s explanation
    • Didn’t talk to client’s witnesses
    • Didn’t talk to bartender, etc